FREUDENTHAL v. CHEYENNE NEWSPAPERS Inc.

• Decision Date: 22 June 2010
• Docket Number: NO. S-09-0184,No. S-09-0183,S-09-0183,S-09-0184
• Citation: 2010 WY 80
• Parties: DAVID D. FREUDENTHAL, Governor of the State of Wyoming, and DR. BRENT SHERARD, Director of the Department of Health, in their capacity as custodian of records, Appellants (Defendants),v. CHEYENNE NEWSPAPERS, INC., a Wyoming corporation, Appellee (Plaintiff). v. DAVID D. FREUDENTHAL, Governor of the State of Wyoming, and DR. BRENT SHERARD, Director of the Department of Health, in their capacity as custodian of records, Appellees (Defendants).
• Court: Wyoming Supreme Court

2010 WY 80

DAVID D. FREUDENTHAL, Governor of the State of Wyoming, and DR. BRENT SHERARD, Director of the Department of Health, in their capacity as custodian of records Appellants (Defendants),

v. CHEYENNE NEWSPAPERS, INC., a Wyoming corporation Appellee (Plaintiff).

v. DAVID D. FREUDENTHAL, Governor of the State of Wyoming, and DR. BRENT SHERARD, Director of the Department of Health, in their capacity as custodian of records Appellees (Defendants).

No. S-09-0183

NO. S-09-0184

Supreme Court of Wyoming

Decided: 06/22/2010

Representing Appellants in Case No. S-09-0183: Bruce A. Salzburg, Wyoming Attorney General.

Representing Appellee in Case No. S-09-0183: Bruce T. Moats of Law Office of Bruce T. Moats, P.C., Cheyenne, Wyoming.

Representing Amicus Curiae Wyoming Education Association, Equality State Policy Center and Wyoming Trial Lawyers Association in Case No. S-09-0184: Patrick E. Hacker and Erin M. Kendall of Hacker, Hacker & Kendall, P.C., Cheyenne, Wyoming.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.

Appeal from the District Court of Laramie County

The Honorable Thomas T.C. Campbell, Judge

The Honorable Edward L. Grant, Judge, Retired*

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

*Judge Grant retired effective August 5, 2009.

KITE, Justice.

[ 1]Declining mineral revenue required the Governor of the State of Wyoming, David D. Freudenthal (the Governor), to request budget reduction plans from all state agencies. Claiming the budget reduction plans were public records under Wyoming s Public Records Act (WPRA), Wyo. Stat. Ann. 16-4-201 through 16-4-205 (LexisNexis 2009), Cheyenne Newspapers, Inc. (the Newspaper) requested copies of the plans the Department of Family Services (DFS) and the Department of Health submitted to the Governor. The Governor denied the request asserting the plans fell within a deliberative process privilege incorporated in the WPRA.

[ 2]The Newspaper petitioned the district court for access to the budget reduction plans. After an in camera review of the plans, the district court held they were not the sort of documents to which the privilege would apply.As to whether the WPRA incorporated the privilege, the district court opined that the better policy would be to recognize the privilege where the facts warranted it.

[ 3]The Governor and the director of the Department of Health, Dr. Brent Sherard, (collectively the State) appealed the district court s ruling that the privilege did not apply and the plans must be disclosed. The Newspaper cross appealed, asserting Wyoming has not and should not recognize the deliberative process privilege within the WPRA. We affirm the district court s ruling that the documents requested must be disclosed.As to the district court s comments that the privilege should be recognized, we conclude this case does not present the appropriate occasion to decide whether or not the deliberative process privilege is incorporated into the WPRA.

ISSUES

[ 4]The State presents the following issue in its appeal:

Whether the documents sought to be inspected by the Newspaper fall within the deliberative process privilege incorporated in Wyo. Stat. Ann. 16-4-203(b)(v).

The Newspaper restates the issue as follows:

Whether the budget reduction plan of the Department of Health submitted to the Governor would fall within the deliberative process privilege if the privilege is adopted in Wyoming.

In its cross appeal, the Newspaper states the following issue:

Whether Wyoming courts should recognize the evidentiary privilege against discovery of information regarding the deliberative process of government decision-makers, and, if so, in what form.

The State rephrases the issue as follows:

Whether Wyo. Stat. Ann. 16-4-203(b)(v), which exempts [i]nteragency or intraagency memoranda or letters which would not be available by law to a private party in litigation with the agency from required disclosure under the Wyoming Public Records Act, incorporates the deliberative process privilege.

FACTS

[ 5]The 2008 Consensus Revenue Estimating Group (CREG) reports projected falling prices for Wyoming produced minerals indicating a likely decline in state mineral revenue.On November 25, 2008, the Governor advised all executive agency heads and the 2009 Wyoming Legislature of the predicted revenue shortfalls.He requested all agency heads to prepare a contingent budget reduction plan.

[ 6]On February 12, 2009, the Governor renewed his request, and directed all agencies to submit budget reduction plans by May 5, 2009, incorporating both a five and ten percent reduction in general fund appropriations. On May 5, 2009, the Newspaper verbally requested DFS s budget reduction plan pursuant to the following WPRA provision:

16-4-202.Right of inspection;....

(a)All public records shall be open for inspection by any person at reasonable times, except as provided in this act or as otherwise provided by law....

[ 7]The Governor s office denied the request stating the documents were in draft form.The Newspaper then made verbal requests to DFS as well as the Department of Health to inspect their budget reduction plans.Again, the Governor s office denied the requests. The Newspaper requested a written statement explaining the grounds for the denial. The Governor issued a written explanation for the denial citing the following WPRA provision:

16-4-203.Right of inspection; grounds for denial;....

....

(b)The custodian may deny the right of inspection of the following records, unless otherwise provided by law, on the ground that disclosure to the applicant would be contrary to the public interest;

....

(v) Interagency or intraagency memoranda or letters which would not be available by law to a private party in litigation with the agency[.]

[ 8] On May 22, 2009, the Newspaper petitioned the district court for access to the records previously requested. The Newspaper also sought an order to show cause naming the Governor, Dr. Sherard and DFS director Tony Lewis as defendants.¹ On June 18, 2009, the district court issued an Order to Show Cause directing the State to submit the disputed documents to the court, under seal, for in camera review.

[ 9]After reviewing the documents, the district court issued its decision letter in which it stated:

It is the opinion of this Court that it would be better policy to recognize the privilege where the facts warrant it.The more immediate question is whether the documents at issue in this case create facts that warrant application of the privilege.

The district court concluded the documents did not fall within the privilege because they were essentially spread sheets showing the various programs, current allocations, recommended reductions and the impact of those reductions.Concluding that the information contained in the plans was purely factual and contained no personal opinion or advice about policy-making, the district court ordered the State to produce the documents.In the final paragraph of its decision letter, the district court stated:

Because the executive should have the most frank, unrestrained exchange of opinions with close advisors before making critical decisions, Wyoming law should recognize the deliberative process exception to the right to inspect documents.Because it would be an exception to strong and important public policy, it must be narrowly applied and sparingly invoked.Given these limitations, the materials in question cannot qualify for the privilege.

The district court entered an order consistent with its decision letter.The parties timely appealed.²

STANDARD OF REVIEW

[ 10]The district court s conclusions that the deliberative process privilege should be recognized in Wyoming and that the documents at issue did not fall within the deliberative process privilege are conclusions of law, are not binding on this Court and are reviewed de novo.Pagel v. Franscell, 2002 WY 169, 7, 57 P.3d 1226, 1229 (Wyo. 2002).

DISCUSSION

1.The Deliberative Process Privilege, Generally

[ 11]As with the perhaps better known presidential privilege, ³ the deliberative process privilege is intended to promote the flow of information within the executive branch of government.Edward J. Imwinkelried, The New Wigmore A Treatise on Evidence, 1312 (2d ed. 2010).While the presidential privilege is a narrow conditional privilege for communications involving the President, his advisors, and their White House staff, the deliberative process privilege applies more broadly to intergovernmental communications by executive officials in general.Id. at 1336.

[ 12]The deliberative process privilege was first recognized in Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958).After the government sold three aluminum production plants to Reynolds Metals, Kaiser sued claiming the government breached the most favored purchaser clause of the parties contract.Id. at 941.Kaiser sought production in discovery of a document which the government refused to produce on the grounds it contained opinions rendered to the agency head by a member of his staff that did not reflect the position of the agency, and its disclosure would discourage agency staff from giving candid advice and impede effective agency administration.Id. at 943.In deciding whether the government properly withheld the document, the court of claims began by noting that the question of whether or not, or to what extent, there is a privilege against the discovery of information in the possession of the Government is an unsettled question. Id. at 945.Referencing a public policy of open, frank discussion between subordinate and chief concerning administrative action, the court of claims concluded that...