Laramie River Conservation Council v. Dinger

• Decision Date: 09 August 1977
• Docket Number: No. 4719,4719
• Citation: 567 P.2d 731
• Parties: LARAMIE RIVER CONSERVATION COUNCIL, Appellant (Applicant below), v. Blaine E. DINGER, Director, Office of Industrial Siting Administration, Appellee (Respondent and Cross-Appellant below).
• Court: Wyoming Supreme Court

Page 731

567 P.2d 731

LARAMIE RIVER CONSERVATION COUNCIL, Appellant (Applicant below), v. Blaine E. DINGER, Director, Office of Industrial Siting Administration, Appellee (Respondent and Cross-Appellant below).

No. 4719.

Supreme Court of Wyoming.

Aug. 9, 1977.

Dennis C. Stickley, Law Student, and Harley J. McKinney, Supervising Atty., Laramie, signed the brief and Dennis C. Stickley appeared in oral argument for appellant.

V. Frank Mendicino, Atty. Gen., Marilyn S. Kite, Senior Asst. Atty. Gen., and Steve F. Freudenthal, Asst. Atty. Gen., Cheyenne, signed the brief, and Steve F. Freudenthal appeared in oral argument for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

This case involves an interpretation of legislative acts pertaining to public records and public meetings, popularly known as sunshine laws. As an off-shoot of an administrative appeal taken by the applicant-appellant here from a decision of the Wyoming Industrial Siting Council, granting the Basin Electric Power Cooperative authority to build certain units of a power plant under development in Platte County, the applicant filed an action in the Laramie County District Court to compel the respondent-appellee to furnish a copy of a transcript of related proceedings held at a public meeting of the council to consider the granting of the permit. The trial judge denied the relief sought. The issue is whether the transcript is exempt from inspection and copying under § 9-692.3(b)(v), W.S.1957, 1975 Cum.Supp., as an interagency memorandum, as found by the district court. We will reverse.

On December 12, 1975, the Industrial Siting Council received a permit application from Basin Electric Power Cooperative for the construction of a Laramie River Station and associated facilities in the Wheatland area. On December 15, 1975, appellant, a non-profit Wyoming corporation representing approximately 50 Platte County families and 35 ranch and farm operations, became a party to the permit proceeding, pursuant to § 35-502.85(a)(iii), W.S.1957, 1975 Cum.Supp., of the Wyoming Industrial Information and Siting Act. ¹ By statute all hearings on facilities as proposed by the Basin Electric Power Cooperative are required to be held, "at a community as close as practicable to the proposed facility." §§ 35-502.82(b)(iv) and 35-502.84(e).

Prior to the final decision to issue the permit on April 29, 1976, the Industrial Siting Council met in public session on the permit application at a remote site, the Ramada Snow King Inn, Jackson, Wyoming, on April 9 and 10, 1976. In accordance with the provisions of the public meetings law, §§ 9-692.10, et seq., W.S.1957, 1975 Cum.Supp., notice of the meeting was mailed to the appellant. Attending the meeting in Jackson, along with members of the council and their staff, were members of the press, public and representatives of the Laramie River Conservation Council.

Upon the instructions of the respondent and appellee here, the director of the Industrial Siting Administration, a tape recording was made of that public meeting, and subsequently transcribed at his direction. After the meeting, applicant's request for a copy of the transcript was denied.

Applicant renewed its request for a copy of the transcript on May 4, 1976, citing the Public Records Act, § 9-692.1, et seq., W.S.1957, 1975 Cum.Supp. Respondent again denied the request on May 8, 1976. Following shortly thereafter came this action to compel availability of a copy. Denial of access was based upon the respondent's claim that the transcript was an interagency memorandum, was privileged or confidential and its release would do substantial injury to the public interest.

With respect to interagency memoranda, the Wyoming State statute, upon which the district court's ruling was based, is similar to 5 U.S.C. 552(b)(5) of the federal Freedom of Information Act. Wyoming's Public Records Act, § 9-692.3(b) (v), reads:

"(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 memorandums or letters which would not be available by law to a private party in litigation with the agency."

5 U.S.C. 552(b)(5) reads:

"(b) This section does not apply to matters that are

"(5) Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

The policy and dominant object of the Freedom of Information Act is on disclosure, not secrecy. Exemptions, therefore, are to be construed narrowly. Department of Air Force v. Rose, 1976, 425 U.S. 352, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11; National Labor Relations Board v. Sears, Roebuck & Co., 1975, 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29; Renegotiation Board v. Grumman Aircraft Engineering Corporation, 1975, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57; and Environmental Protection Agency v. Mink, 1973, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119. We hold that analysis to be applicable to Wyoming's Public Records Act. ² The legislature of this state has stressed the importance of making available to the public records, books and files of state agencies. A showing of need is unnecessary to obtain access to public records and a criminal penalty is provided for those custodians who deny access.

The Wyoming Industrial Information and Siting Act, §§ 35-502.75, W.S.1957, 1975 Cum.Supp., provides especially for public participation in the decisions on projects such as the Laramie River Station. Indeed, a purpose of establishing the Industrial Siting Council and Administration was to receive from and disseminate to Wyoming citizens information upon which future industrial growth can be intelligently developed. Restricting disclosure effectively cuts off the flow of such information and therefore should be done only when the requirements of a particular exemption are strictly met.

The respondent agency director attempts by a process of metamorphosis to change the transcript into an exempt interagency memorandum by claiming he directed the tape recording to be made solely in order that members of the professional staff not at the session may "gain some insight into the council's thought processes as they dealt with some of the complex issues that were before the council." By his reasoning then, the transcript became only an office memorandum under § 9-692.1(b)(ii), W.S.1957, 1975 Cum.Supp.:

"The term 'office files and memoranda' shall include * * * all documents and reports made for the internal administration of the office to which they pertain but not required by law to be filed or kept with such agency; and all other documents or records, determined by the records committee to be office files and memoranda." (Emphasis added.)

The next step then in his mutation theory is that it would not be available under the exception to inspection of § 9-692.3(b)(v).

We have difficulty with that rationale because the taped proceedings were conducted as part of a contested case under the provisions of the Wyoming Administrative Procedure Act, §§ 9-276.19, et seq., W.S.1957, 1975 Cum.Supp., as required by §...