Wednesday, February 6, 2013

Bill seeks to eliminate Jindal's favorite excuse for keeping records under seal

Posted By on Wed, Feb 6, 2013 at 4:08 PM

A bill filed this week by state Rep. Jerome "Dee" Richard, Independent of Thibodaux, and Sen. Rick Gallot, Democrat of Ruston, would repeal an exemption to the state Public Records Act called the "deliberative process privilege." The privilege protects deliberative (or pre-decisional) communications within the governor's office — though it's unclear just what is meant by "deliberative" and "governor's office."

The privilege has recently been applied to requests for (1A) records that were submitted after a state policy decision was made, (1B) records of communications that (arguably) themselves took place after a policy decision was made and (2) records from any executive agency, not just the Office of the Governor.

From our earlier coverage:

 The News-Star attempted to confirm [Louisiana Department of Education Superintendent John] White's remarks by filing a public records request for internal DOE emails, specifically those "regarding phases included in the process for school approval for the Louisiana Scholarship program." A copy of the request was provided to Gambit by News-Star attorney William McNew.

The department did not hand over the requested emails.

After the paper published an editorial excoriating the state for its lack of transparency, White responded, claiming DOE was not obligated to produce the records because of something called the "deliberative process privilege," an exemption to the Louisiana Public Records Law that Jindal rammed through the Legislature in 2009 over the objections of the state's largest newspapers. White claimed in his letter that the privilege, which critics say applies only to the governor's office, "protects documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."

(More after the jump)

The bill, HB19, provides that records under the control of the governor's office are public except in a limited number of cases, applying only to records of the governor, his family, his chief of staff and his executive counsel. Not all agencies within the executive branch.

Privileged records under the bill include intraoffice communications between the governor and his staff and the governor's schedule, provided the information in the schedule includes security details that could put the governor or his immediate family at risk if made public. All other scheduling records must be made public within seven days of an event.

Finally, the bill would make all records of the governor, even privileged ones, public after 10 years.

Please note: The statutory privilege is only part of the story here. Executive agencies also claim they have a constitutional right to refuse disclosure on many deliberative communications. (Please refer again to our story from October 30.) So even in the unlikely event that this bill passes, the deliberative process privilege may very well live on, at least pending a successful challenge in the Louisiana Supreme Court.

Read the bill: DeliberativeBill.pdf

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