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Capital Information Group v. State (8/16/96), 923 P 2d 29
<![CDATA[
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
CAPITAL INFORMATION GROUP, a )
sole proprietorship, and GREGG ) Supreme Court No. S-6443
ERICKSON, individually, )
)
Appellants, )
) Superior Court No.
v. ) 1JU-93-1578 CI
)
STATE OF ALASKA, OFFICE OF THE ) O P I N I O N
GOVERNOR, a unit of the executive )
branch of state government, KRIS )
W. LETHIN, individually and in )
his capacity as Legislative Liaison)
to the Governor; SHELBY STASTNY, )
individually and in his capacity )
as Director of the Office of )
Management and Budget in the )
Office of the Governor; and )
PATRICK P. RYAN, individually and )
in his capacity as Chief of Staff )
to the Governor, )
)
Appellees. ) [No. 4386 - August 16, 1996]
___________________________________)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Rodger W. Pegues, Judge.
Appearances: Jeffrey W. Bush, Juneau, Douglas
Pope, Pope & Katcher, Anchorage, for
Appellants. Barbara J. Ritchie, Deputy
Attorney General, Bruce M. Botelho, Attorney
General, Juneau, for Appellees.
Before: Rabinowitz, Matthews, Compton and
Eastaugh, Justices. [Moore, Chief Justice,
not participating.]
MATTHEWS, Justice.
I. INTRODUCTION
This case involves a news publisher's claim that the
Governor and the executive branch are unlawfully withholding
documents from the public. The superior court held that the
documents were protected by the deliberative process privilege.
The publisher appeals that decision, as well as the superior court
judge's refusal to disqualify himself. (EN1)
II. FACTS AND PROCEEDINGS
The Capital Information Group (CIG) is a news
organization that publishes periodicals describing the activities
of the Alaska state government. It is owned by Judy Erickson,
appellant Gregg Erickson's wife.
Gregg Erickson is the editor of one of CIG's
publications, the Alaska Budget Report (ABR). In Erickson's words,
ABR covers "the action of the legislature and the administration on
budget spending and revenue, and specifically . . . cover[s] the
activities of the finance committees, OMB, and the governor's
office as they relate to the formulation and adoption of the
spending and collecting of state money." During the legislative
session, ABR is published weekly; it is published once every two
months during the rest of the year. Approximately twenty to
twenty-five groups subscribe to ABR, including news and media
organizations, government agencies, lobbyists, legislators,
corporations, non-profit organizations, and local governments.
Since its inception in 1986, CIG has received information
for its newsletters directly from the government by making verbal
requests. Until Erickson sought the information that is the
subject of this suit, the government usually complied.
At issue in this case are two sets of documents. The
first set of documents consists of the budget proposals sent from
each executive department commissioner to the Office of Management
and Budget (OMB). In the summer of 1993, the Governor began
working on his proposed 1995 operating budget. To facilitate this
work, OMB director Shelby Stastny sent to the commissioner of each
state department a memorandum which stated:
[E]ach department's [fiscal year 1995 ("FY
95")] operating budget will reflect the
funding level set early in the budget process.
To develop this level for FY 95, the Governor
will provide each commissioner with an
allocation. You will then prepare a
memorandum in which you will discuss the
programmatic impact the allocation will have
on services which the department is providing
this current fiscal year. In addition, the
memorandum should briefly discuss any
potential legislation which could be important
in meeting the department's FY 95 obligations.
The second set of documents contains each department's
proposals for new legislation sent to the Governor's Legislative
Liaison. During the summer of 1993 the Governor was also preparing
the legislation he would introduce during the 1994 legislative
session. To facilitate this, his Legislative Liaison, Kris Lethin,
sent each department commissioner a letter requesting proposals for
legislation.
Erickson, after learning of Stastny's request, wished to
examine the correspondence from each department commissioner to OMB
regarding the budget. He also requested from Lethin the legis-
lation proposed by each department commissioner. When his verbal
requests went unanswered, Erickson made a written request for this
information. Both Stastny and Lethin, on the advice of the
Department of Law, denied Erickson's requests. Stastny provided
Erickson with the letter he sent each commissioner, and the
spreadsheet used to provide each department with an initial budget
target. He claimed all other documents regarding the budget were
protected by the deliberative process privilege. Lethin also
claimed that all documents pertaining to proposed legislation were
protected by the deliberative process privilege.
Erickson appealed the denials to the Governor's Chief of
Staff, but the denials were upheld, based on the deliberative
process privilege. In response, CIG filed this suit. CIG
requested declaratory and injunctive relief, as well as punitive
damages. CIG also filed a motion for a preliminary injunction or
partial summary judgment requesting immediate access to the
documents in question. The superior court denied CIG's motion as
well as a motion for reconsideration; this court denied a petition
for review of those orders. Case No. S-6057. CIG then amended its
complaint and added a claim for compensatory damages for lost
business.
Shortly after its motion for a preliminary injunction was
denied, CIG filed a motion requesting Judge Pegues to disqualify
himself under Alaska Code of Judicial Conduct, Canon 3C(1)(a) and
(b). Judge Pegues denied this motion, as did Judge Thomas M.
Jahnke upon review under AS 22.20.020(c).
The court entered an order requiring that the State
submit the records requested by CIG. The State submitted the
documents for in camera review. The State and CIG then filed
cross-motions for summary judgment, although CIG's motion was only
for partial summary judgment, reserving the issue of damages. The
superior court granted the State's motion for summary judgment
based on the deliberative process privilege, and denied CIG's
cross-motion for partial summary judgment. CIG appeals both the
summary judgment order and Judge Pegues's refusal to disqualify
himself.
III. DISCUSSION
A. Did the Superior Court Err in Finding that the Documents
in Question Were Protected by the Deliberative Process
Privilege? (EN2)
1. The Alaska public records statute
Alaska's public records statute, AS 09.25.100-220, states
that, "[u]nless specifically provided otherwise, the public records
of all public agencies are open to inspection by the public under
reasonable rules during regular office hours." AS 09.25.110(a).
The statute also states that "[e]very person has a right to inspect
a public record . . . except . . . (4) records required to be kept
confidential by a federal law or regulation or by state law." AS
09.25.120(a).
In the most recent amendment to the statute, the
legislature added a legislative findings and intent section. The
legislature stated that "public access to government information is
a fundamental right that operates to check and balance the actions
of elected and appointed officials and to maintain citizen control
of government." Ch. 200, sec. 1, SLA 1990.
This court has interpreted the statute several times, and
has repeatedly articulated that exceptions to the disclosure
requirement should be construed narrowly to further the
legislature's goal of broad public access. Municipality of
Anchorage v. Anchorage Daily News, 794 P.2d 584, 589 (Alaska 1990);
Doe v. Alaska Superior Court, 721 P.2d 617, 622 (Alaska 1986). We
have, however, recognized that an "executive privilege"may, in
some cases, require that a record be kept confidential. Doe, 721
P.2d at 622-23. At issue in this case is whether the requested
documents are exempted from the general public disclosure
requirements under the deliberative process privilege.
2. The deliberative process privilege
The deliberative process privilege "is a widely
recognized confidentiality privilege asserted by executive
officials. It rests on the ground that public disclosure would
deter the open exchange of opinions and recommendations between
government officials. . . . [and] is intended to protect the
executive decision-making process, its consultative functions, and
the quality of its decisions." Natalie A. Finkelman, Note,
Evidence and Constitutional Law, 61 Temp. L. Rev. 1015, 1033
(1988).
This court has never explicitly adopted the deliberative
process privilege by that name. We have, however, accepted the
"executive privilege"articulated in United States v. Nixon, 418
U.S. 683 (1974), which encompasses the same policy concerns. Doe,
721 P.2d at 622-23. This privilege "recognizes that a chief
executive has a qualified power to keep confidential certain
internal governmental communications so as to protect the
deliberative and mental processes of decisionmakers." Id. Thus,
the term "executive privilege"in Doe encompasses what other
commentators have called the deliberative process privilege. We
consider the terms to be synonymous for purposes of this
discussion. (EN3)
The origin of the deliberative process privilege can be
summarized as follows:
The deliberative process privilege itself
can be directly traced to two relatively
recent decisions. In 1938 the Supreme Court
protected the mental processes of government
decisionmakers in Morgan v. United States.
Then, in 1958 Justice Reed built on Morgan
when, sitting on the Court of Claims by
designation, he decided Kaiser Aluminum &
Chemical Corp. v. United States. Justice Reed
considered in Kaiser whether internal
government documents must be disclosed. He
recognized the need for open, frank
discussions among government officials about
proposed or contemplated action. He believed
disclosure of official deliberations would
inhibit those discussions, invade the mental
processes of government officials, and
adversely affect the quality of administrative
decisionmaking. Accordingly, he held that a
document containing deliberative process
information was privileged and need not be
disclosed.
Russell L. Weaver & James T.R. Jones, The Deliberative Process
Privilege, 54 Mo. L. Rev. 279, 286-88 (1989) (footnotes omitted)
(hereinafter Weaver & Jones).
A limited deliberative process privilege, labeled the
"executive privilege,"was adopted by the United States Supreme
Court in United States v. Nixon, 418 U.S. 683 (1974). Unlike the
common law based deliberative process privilege discussed above,
the executive privilege in Nixon was deemed constitutionally
required by the separation of powers doctrine. The Court explained
the privilege, and its constitutional underpinnings, by stating:
The expectation of a President to the
confidentiality of his conversations and
correspondence, like the claim of confidenti-
ality of judicial deliberations, for example,
has all the values to which we accord defer-
ence for the privacy of all citizens and,
added to those values, is the necessity for
protection of the public interest in candid,
objective, and even blunt or harsh opinions in
Presidential decisionmaking. A President and
those who assist him must be free to explore
alternatives in the process of shaping
policies and making decisions and to do so in
a way many would be unwilling to express
except privately. These are the consider-
ations justifying a presumptive privilege for
Presidential communications. The privilege is
fundamental to the operation of Government and
inextricably rooted in the separation of
powers under the Constitution.
Id. at 708. Notwithstanding this strong language, the Court held
that the privilege was limited, and that the information would not
immediately become public, but would be produced "for in camera
inspection with all the protection that a district court will be
obliged to provide." Id. at 706.
In Doe v. Alaska Superior Court, 721 P.2d 617 (Alaska
1986), this court cited Nixon and held that the Alaska Constitu-
tion's separation of powers doctrine supported a governor's claim
of executive privilege. Id. at 623. In Doe, Governor Hammond was
considering appointing Dr. Carolyn Brown to the State Medical
Board. Id. at 619. Although the Governor never sent a prepared
letter appointing Brown, the press secretary announced the
appointment. Id. In response, an anti-abortion group published an
article in its newsletter urging readers to send protest letters to
the Governor. Id. Soon after, the Governor sent Brown a letter
stating that the announcement of her appointment was an error. Id.
Brown and other doctors identified in the newsletter sued
the anti-abortion organization for defamation. As part of
discovery, the doctors requested the Governor's "appointment file"
which contained letters and telegrams received by the Governor, the
Governor's responsive letters, and miscellaneous internal memoran-
dum and papers. Id.
In deciding Doe, we first noted that exceptions to the
public records statute's disclosure requirements are to be
construed narrowly. Id. at 622. We then adopted the executive
privilege as a privilege required under the Alaska Constitution's
Separation of Powers Doctrine, stating: "We . . . conclude that
the public policy rationale upon which the Supreme Court relied in
United States v. Nixon is equally applicable to our state
government." Id. at 623. We addressed the letters from private
citizens and the internal memoranda and papers separately in light
of the privilege.
Regarding the citizen letters, we noted that most state
courts only restrict public access to "internal communications
stating the opinions and recommendations of state employees, or
information directly solicited by government officials." Id. at
625 (emphasis in original). We followed this rule because "[i]n
such cases the rationale underlying the executive privilege
doctrine -- the need to encourage candid opinions and debate among
government officials during the decision-making process -- is
directly applicable." Id. In contrast, we held that the rationale
underlying executive privilege did not apply to citizens' letters
and such letters were not protected. Id.
Regarding the internal memorandum and papers, we held
that they were covered by the executive privilege. We noted that
some of the documents at issue in Doe were internal communications
that might contain advisory opinions and recommendations. Id. at
625. Because opinions and recommendations "constitute the type of
internal deliberative communication the privilege is designed to
protect,"we remanded to the superior court to determine whether
the documents were protected. Id.
On remand, the government was instructed to "specifically
identify and describe the documents sought to be protected and
explain why they fall within the scope of the executive privilege."
Id. at 626. The party seeking disclosure would then have to show
that "the need for production outweighs the interest in
confidentiality." Id.
Authorities generally agree upon the substantive
requirements of the deliberative process privilege. Initially,
since we are concerned with protecting open and free discourse
among governmental decisionmakers, the communication at issue must
be predecisional to be protected. Doe, 721 P.2d at 624 n.10
(citation omitted). See also Senate of Puerto Rico v. United
States Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987); Weaver
& Jones at 290-95. (EN4) Postdecisional communications are not
protected; however, a predecisional communication does not
automatically lose the privilege after the decision has been made,
for fear that even disclosure of past communications could harm
future deliberations. Weaver & Jones at 290-92. Each case must be
considered independently and on its own merits. Id. at 292.
The second requirement for the privilege to attach is
that the communication be "'deliberative' in nature, reflecting the
'give-and-take' of the deliberative process and containing
opinions, recommendations, or advice about agency policies." Doe,
721 P.2d at 624 n.10 (quoting Paisley v. C.I.A., 712 F.2d 686, 698
(D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201
(D.C. Cir. 1984)). See also Senate of Puerto Rico, 823 F.2d at
585; Weaver & Jones at 296. Concomitant with this requirement,
purely factual material is not protected, and must be disclosed
unless "the manner of selecting or presenting those facts would
reveal the deliberative process, or if the facts are 'inextricably
intertwined' with the policymaking process." Paisley, 712 F.2d at
699 (citations omitted); see also Weaver & Jones at 297.
If a communication is not shown to be both predecisional
and deliberative, then the public records statute applies and the
document will likely be disclosed. If the communication meets the
threshold test, however, the inquiry is not yet over:
Once the court determines that a document is
privileged, it must still determine whether
the document should be withheld. Unlike some
other branches of the executive privilege, the
deliberative process privilege is a qualified
privilege. Once the agency demonstrates that
documents fit within it, the burden shifts to
the party seeking disclosure. It must
demonstrate that its need for the information
outweighs the regulatory interest in
preventing disclosure.
Weaver & Jones at 315 (citations omitted).
We have previously outlined the balancing test that must
be performed when a person seeks records under the public records
statute in the face of executive officials' claims of secrecy. In
City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316
(Alaska 1982), we stated:
In general, questions such as these require a
balance to be struck between the public
interest in disclosure on the one hand and the
privacy and reputation interests of the
affected individuals and the government's
interest in confidentiality, on the other.
The process of balancing has been described as
follows:
In determining whether the
records should be made available for
inspection in any particular
instance, the court must balance the
interest of the citizen in knowing
what the servants of government are
doing and the citizen's proprietary
interest in public property, against
the interest of the public in having
the business of government carried
on efficiently and without undue
interference.
. . . .
In balancing the interests
referred to above, the scales must
reflect the fundamental right of a
citizen to have access to the public
records as contrasted with the
incidental right of the agency to be
free from unreasonable interference.
The citizen's predominant interest
may be expressed in terms of the
burden of proof which is applicable
in this class of cases; the burden
is cast upon the agency to explain
why the records sought should not be
furnished. Ultimately, of course,
it is for the courts to decide
whether the explanation is
reasonable and to weigh the benefits
accruing to the agency from non-
disclosure against the harm which
may result to the public if such
records are not made available for
inspection.
Id. at 1323 (quoting MacEwan v. Holm, 359 P.2d 413, 421-22 (1961)
(en banc)). See also Municipality of Anchorage v. Daily News, 794
P.2d 584, 590-91 (Alaska 1990).
This "balancing test"was articulated in the absence of
any official assertion of a deliberative process privilege. But
the balancing test as described goes a long way toward
accomplishing the goals of the qualified privilege. If the
government does not make a justifiable claim to confidentiality,
then the balance will almost certainly tip in favor of the
individual seeking the information. If it does make such a claim,
and meets the threshold requirements, then there is a presumptive
privilege and the party seeking disclosure must make a sufficient
showing that the need for production outweighs the need for
secrecy. Doe, 721 P.2d at 626. The deliberative process privilege
affects the balance described above primarily by identifying more
specifically what interest the government may have in maintaining
confidentiality, in the form of the threshold showing that the
communication is predecisional and deliberative. It also outlines
fairly rigid procedural requirements that the government must meet
in order to claim the privilege. See Doe, 721 P.2d at 626.
Thus, the balancing test that a court should perform
where a presumptive privilege attaches is that of City of Kenai.
If the privilege attaches, however, instead of there being a
presumption in favor of disclosure, with doubtful cases being
resolved by permitting public inspection, see City of Kenai, 642
P.2d at 1323, there is a presumption in favor of nondisclosure and
the party seeking access to the document must overcome that
presumption.
3. The applicability of the deliberative process
privilege to the documents CIG seeks
CIG's points on appeal and brief ask for disclosure of
two specific types of documents. First, "[r]ecords in the form of
legislative proposals recommended by the various departments and
agencies of the state for introduction by the Governor." Second,
"memoranda prepared by the heads of various agencies and
departments of state government for and generally at the request of
the director of the Office of Management and Budget regarding the
potential impacts of various budget proposals."(EN5)
a. Legislative proposals
The first set of documents CIG seeks are legislative
proposals sent directly to the Governor. The legislative proposals
were clearly predecisional. The Governor requested them to aid him
in deciding what legislation to propose to the legislature; the
decision was his. CIG's claim that they were not predecisional
because they were each agency's final decision is without merit.
See Bureau of Nat'l Affairs v. United States Dep't of Justice, 742
F.2d 1484, 1497 (D.C. Cir. 1984) (agency proposals predecisional
where final decision is President's).
Second, the proposals were deliberative. CIG argues that
they are not deliberative because they "do not memorialize any
debate or discussion between members of the Governor's staff, or
between the Governor and his chief advisors, but rather constitute
reports made by the agencies to the Governor's office upon
request." As such, CIG claims they are not "in the nature of
internal give-and-take recommendations between decision-makers that
would be potentially subject to the deliberative process
privilege."
While CIG is correct that the documents were a one-way
communication, this does not mean they are not deliberative. As
the State correctly notes, the documents were "intended for the
governor's consideration in the development of his proposed . . .
legislative package." This satisfies the threshold deliberative
test because the privilege is meant to further candor in the giving
of advice or opinions to the chief executive, and the Governor need
not respond to a document for candor to be desirable.
Finally, because the threshold requirements have been met
(the material is predecisional and deliberative), we must weigh the
"interest of the citizen in knowing what the servants of government
are doing . . . against the interest of the public in having the
business of government carried on efficiently and without undue
interference." City of Kenai, 642 P.2d at 1323.
The State argues that the need for carrying out business
without undue influence is controlling. The State asserts:
The governor must have the ability to obtain
completely frank and candid advice from his
cabinet and advisors; he must have the
opportunity to evaluate ideas and fully
consider their policy implications before he
decides which of them will and which of them
will not become part of his legislative . . .
proposals. In this give-and-take of the
deliberative process, the governor must be
"uninhibited by the danger that his tentative
but rejected thoughts will become subjects of
public discussion." Doe, 721 P.2d at 624,
(citing Cox, Executive Privilege, 122 U. Pa.
L. Rev. 1383, 1410 (1974) (footnote omitted)).
In response, CIG argues that
[a] review of the proposed legislation, and
particularly bills that were not introduced,
would shed light on the needs of the agencies
and might, in fact, generate valuable
legislative debate or additional legislative
proposals.
On the other hand, the public's need to
protect the candor of its officials is almost
non-existent with respect to the documents
sought in this case. Would agencies be
reluctant to submit the legislative proposals
if they knew the proposals would be made
public? Hardly. In fact, just the opposite
is the case: the agencies actually hope that
their proposals will become public as part of
the Governor's legislative package.
We believe that the proposals to the Governor, constitut-
ing advice as to what programs he should include in his legislative
proposals for the year, fall squarely under the privilege and
should be protected from disclosure. The Governor is not merely
looking for an agency wish list to forward to the legislature. He
is formulating his own political legislative package which will
reflect his own priorities and agenda. In doing so, he must
determine not only which of the agency proposals have merit but
also which warrant the expenditure of his own political capital in
their pursuit. This is one of the most sensitive and important
functions that the Governor performs while in office, and the need
for frank discussion of policy matters among the Governor's
advisors is perhaps greater here than in any other area. We
believe the need for effective decisionmaking in the Governor's
office in the formulation of his legislative agenda is not overcome
by CIG's desire to "shed light on the needs of the agencies." We
thus hold that the legislative proposals at issue were properly
withheld.
b. Budget impact memoranda
The second set of documents CIG seeks are the budget
memoranda sent from each department head to OMB in response to
OMB's request. Alaska Statute 37.07.050 requires such a report.
(EN6)
The statute also states:
All goals and objectives, plans,
programs, estimates, budgets, and other
documents forwarded to the office of
management and budget by a state agency under
this section are public information after the
date they are forwarded.
AS 37.07.050(g).
We believe that the budget impact memoranda at issue here
meet the threshold requirements for the privilege. They are
predecisional because they were submitted before the Governor made
his final determinations as to his proposed budget. See Bureau of
Nat'l Affairs, 742 F.2d at 1497 (agency budget recommendations
predecisional because President decides what requests to submit to
Congress). They are deliberative because they were meant to be,
and clearly were, a "direct part of the deliberative process,"in
allowing the Governor to hear the needs and opinions of each of the
agencies which need to be accommodated in the budget. See Weaver
& Jones at 296 (listing "an agency's budget request submitted to
the Office of Management and Budget"as example of deliberative
communication).
Since the documents are predecisional and deliberative,
we would normally proceed to question whether the demonstrated need
for disclosure outweighs the government's interests in confidenti-
ality. However, in this case, the legislature has already weighed
those interests, and resolved them in favor of public disclosure.
AS 37.07.050(g).
As we have noted above, the deliberative process
privilege is commonly accepted as having both common law and
constitutional roots. Weaver & Jones 288-89. We accept for
purposes of this argument the constitutional underpinnings of the
doctrine. The State argues that the legislature can not override
a constitutionally based deliberative process privilege:
The legislature cannot, by adopting a
statute, negate the executive's deliberative
process privilege. That the legislature
serves as a representative of the public
interest does not mean that it can define and
limit the parameters of this constitutional
privilege or the Governor's constitutional
budgetary powers in any way it chooses.
The superior court accepted this position. We do not wholly agree.
The deliberative process privilege has never been held to
be absolute. The strongest indication of its constitutional roots
has come from the Nixon case, in which the United States Supreme
Court recognized a qualified presumptive privilege "inextricably
rooted in the separation of powers under the Constitution." 418
U.S. at 708. But the very holding of that case was that the
executive privilege, even though constitutionally rooted, was not
absolute and may be outweighed by the legitimate needs of a
coordinate branch:
In designing the structure of our
Government and dividing it and allocating the
sovereign power among three co-equal branches,
the Framers of the Constitution sought to
provide a comprehensive system, but the
separate powers were not intended to operate
with absolute independence.
. . . .
Since we conclude that the legitimate
needs of the judicial process may outweigh
Presidential privilege, it is necessary to
resolve those competing interests in a manner
that preserves the essential functions of each
branch.
418 U.S. at 707. Thus we believe it is not sufficient to say that
because the deliberative process privilege has constitutional
underpinnings the legislature may never enact a statute which has
the effect of overriding the executive's request for secrecy. (EN7)
Ordinarily, we would look with disfavor upon the
legislature's attempt to compel public disclosure of predecisional
and deliberative documents. But here, certain factors exist which
the judiciary, in balancing the executive's assertion of the
privilege against the legislature's attempt to override it, should
take into account. Primary among them is that the legislature
itself created the requirement for this type of report in AS
37.07.050. Forwarding the document thus is an official action,
required by statute. The legislature has not only mandated that
the reports be made and submitted to OMB, it has, in declaring the
reports to be public, implicitly determined that the need for
public disclosure outweighs any risk of lack of candor on the
agencies' part. (EN8) This determination is entitled to
significant weight, given the legislature's constitutional power to
allocate executive department functions and duties among the
offices, departments, and agencies of the state government. (EN9)
The failure of the statute to affirmatively mention
"impact memoranda"does not alter the analysis. The legislature
clearly contemplated that there would be variations in OMB's
requests to the agencies when it made public "[a]ll goals and
objectives, plans, programs, estimates, budgets, and other
documents forwarded"to OMB. AS 37.07.050(g) (emphasis added).
The executive branch cannot avoid the disclosure requirements of
subsection (g) by asking for the agencies' response to a proposed
budget instead of for an estimated budget for the coming year.
We hold that the budget impact memoranda should have been
disclosed.
B. Did Judge Pegues Err in Not Disqualifying Himself From
the Case?
CIG argues that Judge Pegues should have disqualified
himself from hearing this case because, as an Assistant Attorney
General, he advised then-Governor Hammond that parts of AS
37.07.050 might have been unconstitutional. CIG claims this
violates Canon 3C(1) of the Alaska Code of Judicial Conduct, which
states that judges should disqualify themselves if their
"impartiality might reasonably be questioned"because they have "a
personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts"or "served as a lawyer in
the matter in controversy."
The document CIG references to support its claim is a
1978 letter to Governor Hammond from Attorney General Avrum M.
Gross. The portion of the letter CIG cites apparently advises the
Governor as to whether he should support the passage of AS
37.07.050. The letter states, in part:
The bill provides for a number of capital
budgeting and capital planning procedures
which we are inclined to believe are
impracticable, if not impossible. It provides
in great detail how these matters will be
accomplished and makes those details
mandatory. In doing so, the bill appears to
tread upon the executive's plenary power over
the preparation of the state budget. Alaska
Const., art. IX, sec. 12. For the most part,
it should not have the effect of impairing
that power, but to the extent that it may have
that effect, it should be unconstitutional.
In other words, the legislature cannot so
hamstring the executive's preparation of the
budget that it is no longer his but rather
another's budget. The constitution places
both the authority and the responsibility for
the budget's preparation on one person, the
chief executive.
CIG also claims that Judge Pegues "likely gained personal knowledge
of disputed evidentiary facts."
Judge Pegues denied CIG's motion for disqualification.
In his memorandum discussing his denial, Judge Pegues stated:
My association with the Department of Law
ended more than a decade ago. It is unlikely
in the extreme that I possess any personal
knowledge about any evidence that may be
placed in dispute in this cause. My expertise
does not fall in that area but rather in an
overall knowledge of the process of the
government of the State of Alaska and the law
applicable to it. No appearance of impro-
priety can arise from that.
Judge Jahnke affirmed Judge Pegues's denial. Regarding
the claim that Judge Pegues served as a lawyer on this case, Judge
Jahnke pointed out that Judge Pegues's connection was old and
tenuous:
More that fifteen (15) years before this issue
was raised, Judge Pegues was an assistant
attorney general and authored a six-page
letter to then-Governor Hammond reviewing a
bill which contained the public records
language that is in dispute in this case.
However, the letter contains not one word
addressing that section of the bill.
Regarding CIG's claim that Judge Pegues had personal knowledge of
disputed evidence, Judge Jahnke found that CIG had not "identified
what aspect of Judge Pegues' fund of knowledge is disputed by any
party and relevant to the disposition of the case. As such, they
have failed to identify any objective facts from which a fair-
minded person could conclude that an appearance of partiality on
Judge Pegues' part exists."
This court does not reverse a judge's decision not to
disqualify himself based on the appearance of impartiality unless
this court finds that he abused his discretion. Long v. Long, 816
P.2d 145, 156 (Alaska 1991). We cannot conclude that CIG, by
asserting that the two superior court judges' "conclusions defy
common sense and are simply wrong,"meets the burden of showing an
abuse of discretion. We hold that the facts found by Judge Jahnke
are not clearly erroneous and that he did not abuse his discretion
in denying the disqualification motion.
IV. CONCLUSION
The superior court's summary judgment in favor of the
State is AFFIRMED with respect to the legislative proposals sent to
the Governor, and REVERSED with respect to the budget impact
memoranda. The denial of CIG's Motion for Disqualification is
AFFIRMED. The case is REMANDED to the superior court for
proceedings consistent with this opinion.
ENDNOTES:
1. The State's cross-appeal, which argued that the superior court
erred in holding the appellant to be a public interest litigant,
was dismissed on July 25, 1995, pursuant to the parties' agreement.
2. Both parties correctly note that whether a privilege applies
is a question of law which this court reviews without deference to
the trial court. Jones v. Jennings, 788 P.2d 732, 735 (Alaska
1990).
3. We do not address potential distinctions between the two terms
in other contexts. See, e.g., 26A Charles A. Wright & Kenneth W.
Graham, Jr., Federal Practice and Procedure sec. 5680, at 125
(1992) (stating deliberative process privilege has been known by
variety of names, including executive privilege); Stephen G. Lee,
We Have Ways of Making You Talk: Challenging the Invocation of the
Deliberative Process Privilege in Contract Disputes, 40 Fed. B.
News & J. 90, 90 (1993) (calling deliberative process privilege a
"form of executive privilege"); Margot O. Knuth, Inspection and
Discovery of State Records in Alaska, 4 Alaska L. Rev. 277, 277 n.3
(1987) (stating most courts use "executive privilege"to refer to
"deliberative process privilege"although "executive privilege"may
also refer to narrower privilege); Gerald Wetlaufer, Justifying
Secrecy: An Objection to the General Deliberative Privilege, 65
Ind. L.J. 845, 845 n.1 (1990) (describing "general deliberative
privilege"as having different names, sometimes "an
undifferentiated part of a larger cluster of privileges, usually
either the 'executive privilege' or the 'official information
privilege'. . . ."(citations omitted)); Russell L. Weaver & James
T.R. Jones, The Deliberative Process Privilege, 54 Mo. L. Rev. 279,
279 (1989) (calling "deliberative process privilege"a "branch of
the executive privilege.").
4. We consider cases dealing with the Freedom of Information Act,
5 U.S.C. sec. 552, and its "Exemption 5"instructive as they relate
to the deliberative process privilege. See Doe, 721 P.2d at 624,
n.10. Section 552(b)(5) exempts from disclosure "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."
Thus, the exemption incorporates common law privileges into the
statute. It is through FOIA, then, that federal courts frequently
address the deliberative process privilege. See, e.g., Senate of
Puerto Rico, 823 F.2d at 584-85 ("[D]ocuments covered by . . . the
'deliberative process' privilege are unquestionably exempt from
FOIA disclosure."); Bureau of Nat'l Affairs v. United States Dep't
of Justice, 742 F.2d 1484, 1496-97 (D.C. Cir. 1984) ("Among the
privileges covered by Exemption 5 is the executive privilege
regarding the government's deliberative process. . . . The purpose
of Exemption 5 is 'to protect the deliberative process of the
government, by ensuring that persons in an advisory role would be
able to express their opinions freely to agency decisionmakers
without fear of publicity [that might] . . . inhibit frank
discussion . . . .'") (citations omitted).
5. CIG questions, in a footnote to the "Procedural Background"
section of its brief, whether the procedural requirements for the
assertion of a privilege, which we outlined in Doe, 721 P.2d at
626, have been met. We hold that the requirements were met. The
documents for which the privilege was asserted were submitted under
seal to the court for in camera review. The court was also
supplied with affidavits by Stastny, Lethin, and Raga S. Elim (the
Legislative Liaison subsequent to Lethin), based upon personal
examination, specifically describing the documents and their
intended use in the Governor's office. These are not the type of
conclusory affidavits which the courts should guard against. While
it is true that the superior court ultimately did not examine the
documents submitted under seal, it did examine a memorandum from
one department which had been leaked to CIG. This was not error,
since an in camera examination of the documents is at the
discretion of the trial court judge. See Bureau of Nat'l Affairs,
742 F.2d at 1498. Judge Pegues did not abuse his discretion in
determining in camera review to be unnecessary where he had the
affidavits and a representative memorandum which had already been
made public.
6. AS 37.07.050(a) states:
Each state agency, on the date and in the
form and content prescribed by the office,
shall prepare and forward to the office and
the legislative finance division
(1) the goals and objectives of the
agency programs, together with proposed
supplements, deletions, and revisions;
(2) its proposed plans to implement the
goals and objectives, including estimates of
future service needs, planned methods of
administration, proposed modification of
existing program services and establishment of
new program services, and the estimated
resources needed to carry out the proposed
plan;
(3) the budget requested to carry out its
proposed plans in the succeeding fiscal year,
including information reflecting the expendi-
tures during the last fiscal year, those
authorized for the current fiscal year, those
proposed for the succeeding fiscal year, an
explanation of the services to be provided,
the number of total positions for all persons
employed or under contract by the agency for
personal services including those rendered for
capital improvement projects, the need for the
services, the cost of the services, and any
other information requested by the office;
(4) a report of the receipts during the
last fiscal year, an estimate of the receipts
during the current fiscal year, and an
estimate for the succeeding fiscal year;
(5) a statement of legislation required
to implement the proposed programs and
financial plans;
(6) an evaluation of the advantages and
disadvantages of specific alternatives to
existing or proposed program policies or
administrative methods.
7. See also Archibald Cox, Executive Privilege, 122 U. Pa. L.
Rev. 1383, 1407 (1974):
But to demonstrate that the President should
not be under an absolute duty to provide any
and all information upon any and all occasions
falls far short of making out the claim of
President Nixon's attorneys that the President
must have an absolute privilege upon any and
all occasions to withhold whatever he wills.
Both law and constitutional practice ought to
be capable of recognizing, and making a more
delicate adjustment in, the middle ground.
And
there are many cases in which Congress has the
constitutional authority to institute measures
that interfere with the "effective discharge
of a President's powers". . . . It is
entirely possible, therefore, that the Supreme
Court, if squarely confronted with the
question, might explain away the assertions in
United States v. Nixon or confine them to
situations in which there is no applicable
legislation.
Id. at 1435.
8. We recognize that Bureau of National Affairs reached the
opposite conclusion with respect to similar documents. 742 F.2d at
1496-98. There, the United States Court of Appeals for the
District of Columbia Circuit held that the EPA's assessment of its
funding needs for the fiscal year were within the deliberative
process privilege and could be withheld under FOIA Exemption 5.
Id. However, in that case there is no indication that the
interagency memoranda were required by any statute which also
declared them available for public inspection.
9. This power is expressed in article III, sections 22 and 23 of
the Alaska Constitution. These sections provide:
SECTION 22. All executive and admini-
strative offices, departments, and agencies of
the state government and their respective
functions, powers and duties shall be
allocated by law among and within not more
than twenty principal departments, so as to
group them as far as practicable according to
major purposes. Regulatory, quasi-judicial,
and temporary agencies may be established by
law and need not be allocated within a
principal department.
SECTION 23. The governor may make
changes in the organization of the executive
branch or in the assignment of functions among
its units which he considers necessary for
efficient administration. Where these changes
require the force of law, they shall be set
forth in executive orders. The legislature
shall have sixty days of a regular session, or
a full session if of shorter duration, to
disapprove these executive orders. Unless
disapproved by resolution concurred in by a
majority of the members in joint session,
those orders become effective at a date
thereafter to be designated by the governor.
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