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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. Gwich'in Steering Committee v. State (10/13/00) sp-5323

Gwich'in Steering Committee v. State (10/13/00) sp-5323

     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) 264-0608, fax (907) 264-0878.


a nonprofit village-based     )    Supreme Court Nos. S-9026/9046
Athabascan organization,      )
                              )    Superior Court No.
          Appellant/          )    3AN-98-8553 CI
          Cross-Appellee,     )
                              )    O P I N I O N
     v.                       )
                              )    [No. 5323 - October 13, 2000]
THE GOVERNOR,                 )
          Appellee/           )
          Cross-Appellant.    )

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                 Sigurd E. Murphy, Judge pro tem.

          Appearances:  Robert W. Randall, Trustees for
Alaska, Anchorage, for Appellant/Cross-Appellee.  Christopher
Kennedy, Assistant Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee/Cross-Appellant. 

          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  

          EASTAUGH, Justice.

          Invoking Alaska's Public Records Act, an organization
asked the governor of Alaska to produce documents relating to the
governor's lobbying efforts to open the Arctic National Wildlife
Refuge for oil exploration and drilling.  The governor withheld the
documents, claiming privilege.  In the ensuing administrative
appeal, the superior court held that the deliberative process
privilege protected the documents from disclosure.  We affirm
because we conclude that the documents are predecisional and
deliberative, and because the requesting organization did not
establish that its need for the documents outweighed the governor's
interest in nondisclosure.
          The Gwich'in Steering Committee characterizes itself as
a nonprofit organization formed to protect the birthplace and
nursing grounds of the Porcupine Caribou Herd in the Arctic
National Wildlife Refuge (ANWR).  It claims that it has been
prominent in efforts to prevent oil drilling on the coastal plain
of ANWR.
          The governor and his executive staff in the Office of the
Governor have been active in lobbying the United States Congress to
open ANWR for oil and gas development.  As part of that effort the
Governor's Office hired a lobbying company, The Wexler Group.
          Arctic Power is a nonprofit organization that promotes
congressional and presidential approval of legislation opening
ANWR.  Arctic Power has received grants from the Alaska legislature
to fund its lobbying efforts. [Fn. 1]  To further its goals, Arctic
Power hired Decision Management, Inc. (DMI) to lobby United States
          The current dispute arose in November 1997 when Gwich'in
submitted to the Office of the Governor a broad request for
information relating to the promotion of oil development in ANWR --
pursuant to Alaska's Public Records Act. [Fn. 2]
          The Office of the Governor produced most of the requested
materials, but declined to produce thirteen documents, claiming
that the deliberative process privilege and constitutional rights
to privacy and association protected them from disclosure. 
Gwich'in appealed the nondisclosure to the governor's Chief of
Staff, Jim Ayers. [Fn. 3]  Ayers concluded that the deliberative
process privilege protected eight of the documents.
          Gwich'in filed a superior court administrative appeal
from the refusal to disclose the eight documents.  In response, the
Office of the Governor released one of the documents and moved to
supplement the administrative record with an affidavit of John
Katz, the Director of State/Federal Relations and Special Counsel
to the Governor, to further explain why the privilege applied to
the seven remaining documents.  The superior court declined to
consider the Katz affidavit and limited its appellate review to the
administrative record.  The superior court examined the documents
in camera and concluded that the deliberative process privilege
protected all seven of the disputed documents.  In a thoughtful and
thorough memorandum opinion, the superior court affirmed the Office
of the Governor's decision to withhold the documents. 
          The superior court also determined that the Office of the
Governor prevailed in the litigation and awarded it $1,000 in
attorney's fees and paralegal costs. [Fn. 4]  The superior court
consequently denied Gwich'in's motion for full attorney's fees. 
          Both parties appeal.  Gwich'in appeals the deliberative
process privilege ruling, the attorney's fees award against it, and
the denial of its motion for full attorney's fees.  The Office of
the Governor contingently cross-appeals the denial of its motion to
supplement the record with the Katz affidavit.
     A.   May the Office of the Governor Withhold the Documents?
          1.   Standard of review
          When a superior court acts as an intermediate court of
appeal we give no deference to its decision. [Fn. 5]  The Office of
the Governor urges us to give "considerable deference" to an
agency's determination when deciding whether the deliberative
process privilege applies, because it claims that an agency's
expertise in determining the requisite level of confidentiality is
necessary to prevent injury to the quality of agency decisions.
[Fn. 6]  We are not persuaded that this case requires deference to
the Office of the Governor. [Fn. 7]  We therefore apply our
independent judgment in deciding the legal issues presented. [Fn.
          2.   Alaska's Public Records Act
          The act provides 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," [Fn. 9] and that "[e]very person has a right to
inspect a public record in the state." [Fn. 10]  We have noted that
"[t]here is a strong public interest in disclosure of the affairs
of government," and "[sections] .110 and .120 articulate a broad
policy of open records." [Fn. 11]  The right of citizen access to
public records has been characterized as a "fundamental right."
[Fn. 12]
          The Public Records Act contains exceptions to the public
disclosure mandate, including one for "records required to be kept
confidential by . . . state law." [Fn. 13]  To further the
legislative policy of broad public access, we narrowly construe any
exceptions. [Fn. 14]
          3.   The deliberative process privilege
          The deliberative process privilege is one of the
judicially recognized "state law" exceptions under AS
09.23.120(a)(4). [Fn. 15]  Public officials may assert this
privilege and withhold documents when public disclosure would deter
the open exchange of opinions and recommendations between
government officials. [Fn. 16]  The privilege is intended to
protect the executive's decisionmaking process, its consultative
functions, and the quality of its decisions. [Fn. 17]  
          Gwich'in maintains that this privilege only protects
communications relating to constitutionally-prescribed executive
powers and duties, as determined by article III of the Alaska
Constitution.  It reasons that the privilege stems from the
executive privilege, which is based on the separation of powers
          We stated in Capital Information Group v. State, Office
of the Governor [Fn. 18] that we considered the terms "executive
privilege" and "deliberative process privilege" to be synonymous
for purposes of that discussion. [Fn. 19]  But the two terms are
not identical. [Fn. 20]  Instead, the deliberative process
privilege is a "branch" of a broader group of governmental
privileges. [Fn. 21]  The roots of the deliberative process
privilege lie in the common law; it protects the mental processes
of government decisionmakers from interference, not constitutional
notions of separation of powers. [Fn. 22]  Therefore, the question
is not whether the communication relates to a duty mandated in
article III of the Alaska Constitution, but whether disclosure of
the communication sought would affect the quality of governmental
          To determine whether disclosure would interfere with that
process, the proponent of the privilege must show as a threshold
matter that the communication is both "predecisional" and
"deliberative." [Fn. 23]  Once those requirements have been met,
the court balances the public's interest in disclosure against the
agency's interest in confidentiality. [Fn. 24]
               a.   Predecisional
          To qualify as predecisional, a communication must have
been made before the deliberative process was completed. [Fn. 25] 
The privilege protects predecisional communications because the
quality of the communications received by the decisionmaker clearly
affects the quality of the decisionmaking process. [Fn. 26]  The
privilege does not protect postdecisional communications, but
predecisional communications do not automatically lose the
privilege after a decision has been made. [Fn. 27]
               b.   Deliberative
           The communication must also be deliberative. [Fn. 28] 
It must reflect a "give-and-take" of the decisionmaking process and
contain opinions, recommendations, or advice about agency policies.
[Fn. 29]  Purely factual material is not protected unless the
selection process or presentation would reveal the decisionmaking
process, or if the facts are inextricably intertwined with that
process. [Fn. 30]  Courts also consider the function and
significance of the communication; documents representing ideas and
theories that go into policymaking are distinguished from the
opinions and interpretations that constitute the policy itself.
[Fn. 31]  
               c.   The balancing test
          If the agency demonstrates that a document is
predecisional and deliberative, a presumptive privilege attaches in
favor of nondisclosure. [Fn. 32]  The burden then shifts to the
party seeking disclosure to show that the public's interest in
disclosure outweighs the government's interest in shielding the
information. [Fn. 33]  We recognize that "[i]n balancing the
interests . . . 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." [Fn. 34]
          4.   Privilege application

          Gwich'in advances four main arguments which we address in
               a.   Did the administrative decision allow Gwich'in
to meaningfully challenge the assertion of privilege?
          Gwich'in first argues that the initial decision by the 
Office of the Governor is facially inadequate to sustain the
privilege because the decision failed to state sufficient reasons
for withholding the documents and therefore did not satisfy
requirements stated in regulation and case law. 
          The Office of the Governor promulgated 6 Alaska
Administrative Code (AAC) 96.350 (2000), which requires that an
administrative appeal determination of a Public Records Act request
denial "must be in writing, must specify the specific statute,
regulation, or court decision that is the basis for the denial, and
must state briefly the reason for the denial."  We have never
addressed what an agency must show to invoke the privilege under 6
AAC 96.350. [Fn. 35]  
          In City of Colorado Springs v. White, [Fn. 36] the
Colorado Supreme Court thoroughly discussed what an agency must do
to invoke the privilege successfully following a public records act
request.  The court there adopted the well-established procedure
federal agencies must follow to protect documents from disclosure
under the Freedom of Information Act. [Fn. 37]  Under federal law,
an agency must assert the privilege by preparing a "Vaughn index."
[Fn. 38]  The court stated that the index should (1) describe
specifically each document claimed to be privileged, noting its
author, recipient, and subject; (2) explain how each document
qualifies for the privilege, describing the deliberative process to
which the document is related and the role the document played in
that process; (3) include an affidavit discussing why disclosure
would be harmful; and (4) describe which portions of large
documents are and are not subject to disclosure. [Fn. 39] 
          The requirements of 6 AAC 96.350 are not as extensive as
the requirements for a "Vaughn index," but the purpose is the same
-- to "provide litigants with fundamental information about the
allegedly privileged material, and provide them with a meaningful
opportunity to challenge the government's claims." [Fn. 40]  When
it initially denied Gwich'in access to the documents, the Office of
the Governor provided information about each document's author,
subject matter, date, length, and reason for nondisclosure. 
Ayers's written determination of the administrative appeal listed
the specific documents, the reasons for nondisclosure, and the
legal authority for nondisclosure.  The Office of the Governor
therefore complied with 6 AAC 96.350.  Moreover, the superior
court's in camera review and the full briefing before that court
allowed Gwich'in a meaningful opportunity to challenge the claim of
privilege. [Fn. 41]  
          Because we hold that the administrative decision and the
superior court's in camera review were sufficient, we do not need
to address the Office of the Governor's cross-appeal.
               b.   Did the Office of the Governor establish that
the documents fall under the privilege? 
          Gwich'in next argues that the Office of the Governor
fails to meet the threshold requirements of the privilege.  The
documents fall into three categories: (1) three memoranda from
Decision Management Inc. (DMI), a lobbying company, to the Office
of the Governor regarding lobbying strategies; (2) a draft media
plan from The Wexler Group, another lobbying company, to the Office
of the Governor; and (3) three e-mail communications between
staffers in the Office of the Governor regarding how the state
might proceed with the proposed media plan.
                    (i)  Decision Management, Inc. memoranda
          The Office of the Governor withheld an eleven-page
February 4, 1997, memorandum to John Katz from DMI regarding
"Congressional passage of ANWR bill."  It also withheld two five-
page February 26, 1997, memoranda from DMI to Katz regarding the
same subject. 
          Gwich'in first argues that nothing in the administrative
record establishes that the DMI memoranda were directly solicited.
To qualify for the privilege, the communication or document at
issue must be an "internal communication" or one "directly
solicited" by a government official. [Fn. 42]  Outside consultants'
reports have been held to be privileged if the agency uses them in
its decisionmaking process. [Fn. 43]
          After reviewing the February 4, 1997, memorandum, we
conclude that the document establishes that it was "directly
solicited."  The Office of the Governor clearly invited DMI to
submit a proposal and DMI responded.  The February 26, 1997,
memoranda were merely addenda to that proposal and therefore were
also directly solicited. 
          Second, Gwich'in argues that the three DMI memoranda are
not predecisional because no specific decision was identified; the
memoranda were incorporated by reference in a document disclosed by
the state, a contract between Arctic Power and DMI; and the 
memoranda relate to an agreement beyond the decisionmaking capacity
of the executive, namely a contract between two private parties. 
          No specific decision needs to be identified for a
document to be predecisional. [Fn. 44]  The privilege protects the
give-and-take deliberative process, not final decisions; no
ultimate conclusion needs to be identified, or even reached, for
the privilege to attach.
          Documents that are incorporated by reference or expressly
adopted in a final decision by an agency may lose their
predecisional status. [Fn. 45]  Here the DMI memoranda were
incorporated by reference into DMI's private contract with Arctic
Power.  Incorporating an otherwise privileged document into a
private contract cannot be a basis for the loss of that privilege
because that contract is not the agency's final decision. [Fn. 46] 
          We conclude that the DMI memoranda are both predecisional
and deliberative.  As Gwich'in notes, the decision about whether
Arctic Power would contract with DMI was beyond that office's
authority, but we conclude that DMI submitted the memoranda in
February 1997 as proposals "suggesting a strategy for public
information and lobbying campaigns to be overseen by Arctic Power."
Although DMI ultimately contracted with Arctic Power, the DMI
memoranda are inextricably intertwined with the proposed lobbying
plans of the Office of the Governor; those plans may have included
using Arctic Power to lobby for it. [Fn. 47]  The privilege
therefore serves to protect the very process at issue here -- the
deliberative consideration of proposals which were not adopted.
                    (ii) The draft media plan
          The Office of the Governor also withheld a November 25,
1997 "[d]raft media plan for ANWR from Wexler Group to John Katz." 
The Wexler Group had originally contracted with the state in
September 1995 to lobby for opening ANWR for oil and gas
development.  That contract was extended through June 1998.
          First, Gwich'in argues that the administrative record
fails to show that the media plan was directly solicited.  Unlike
the DMI memoranda, the draft media plan itself does not establish
that the Office of the Governor directly solicited the plan from
The Wexler Group.  But we conclude that other documents withheld by
the Office of the Governor -- the e-mails between David Ramseur and
John Katz -- do establish that the draft media plan was directly
          Second, Gwich'in reasons that the privilege protects
nongovernmental, directly solicited documents because disclosure
would tend to silence informants who provide confidential
information.  It concludes that disclosure here would have no such
chilling effect because the Wexler Group was contractually
obligated to provide information.  But the privilege does apply in
this context, because disclosure might chill "honest and frank
communications" between hired consultants and the agency. [Fn. 48]
          Third, Gwich'in claims the media plan is not
predecisional to the decision to undertake a media campaign, a
decision made when the Office of the Governor hired The Wexler
Group in 1995.  Even though that decision had already been made,
the draft plan is the kind of communication that the privilege
protects -- a preliminary communication that reflects the give-and-
take deliberation of an executive agency.  Ongoing deliberation
continued on how to effectuate the Office of the Governor's goal of
opening ANWR by lobbying Congress in a variety of ways, including
deliberation on what media strategy to use.  The primary
characteristic of the media plan is predecisional. [Fn. 49] 
Disclosure could chill planning strategy and communicating with
hired consultants. 
                    (iii)     The e-mails

          In June 1997 John Ramseur, the governor's Deputy Chief of
Staff, and John Katz wrote three e-mail messages about hiring a
media consultant.
          Gwich'in argues that the e-mails were not predecisional
because the Office of the Governor did not identify a decision and
because the decision to undertake a media campaign had already been
made.  A specific decision need not be identified for the privilege
to attach, and decisions were ongoing regarding the Office of the
Governor's lobbying strategies. [Fn. 50]  
          Gwich'in also argues that the e-mails were not
deliberative because the privilege only protects communications
from subordinates.  Communications from a senior to a subordinate
are not necessarily postdecisional. [Fn. 51]  These three messages
reflect the give-and-take deliberative process of arriving at a
decision. None reflects any directive on how to implement a
particular plan or course of action from a senior to a junior
employee; instead, each shows ongoing discussion and deliberation
about whether to hire a media consultant and whom to hire.  Our
review of these three messages shows that they were all
predecisional and deliberative.
          The Office of the Governor's determination and our in
camera review establish both threshold requirements for all seven
withheld documents. We therefore hold that the privilege
presumptively attached and that Gwich'in was obliged to show that
its need for the documents outweighed the Office of the Governor's
interest in secrecy.
               c.   Has the privilege evaporated?
          Before it addresses the balancing of interests, Gwich'in
argues, citing a Washington case, [Fn. 52] that the privilege
evaporates when the decision that the documents preceded is finally
made.  It argues that because over a year has passed, all the
decisions relating to the withheld documents must have been
implemented already.
          The question is not whether the decision has been
implemented, or whether sufficient time has passed, but whether
disclosure of these preliminary proposals could harm the agency's
future decisionmaking by chilling either the submission of such
proposals or their forthright consideration. [Fn. 53]  Disclosing
proposals made -- but not adopted -- could chill the possible
future adoption of those or similar proposals, or the relationships
between the Office of the Governor and its lobbyists.  We therefore
hold that the communications have not lost the privilege.
               d.   Does the public interest in disclosure
outweigh the interests in nondisclosure? 

          Finally, Gwich'in argues that the documents relate to the
"fate of the Gwich'in's culture and way of life" and that the
public has a proprietary interest in the expenditure of over a
million dollars of state funds.  It further claims that the Office
of the Governor's interest is weaker when the documents relate to
political lobbying and not to an essential executive branch
          The Office of the Governor argues that Gwich'in failed to
produce any evidence it had a particular interest in disclosure,
and that the public has an interest only in how funds are actually
spent, not how they might have been spent.  It counters Gwich'in's
"essential executive function" argument by citing Capital
Information Group, which allowed the privilege for documents
unrelated to the constitutionally mandated executive activity of
policymaking. [Fn. 54]
          When balancing the interests in Capital Information
Group, we held that agency proposals submitted to the governor fell
under the privilege.  We explained:
          [The Governor] 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 . . . the need for effective decisionmaking in
the Governor's office in the formulation of his legislative agenda
is not overcome by [the requestor's] desire to "shed light on the
needs of the agencies."[ [Fn. 55]]
Gwich'in's attempt to resurrect its "essential executive function"
argument in the balancing test therefore fails.  The privilege may
protect any governmental decisionmaking function, including the
governor's policymaking and lobbying of either state or federal
          Generally, it is difficult for a requestor to override a
presumptive privilege. [Fn. 56]  Relevant factors include: the
degree of confidentiality and sensitivity of the communication; the
time elapsed after deliberation concluded and after communications
were made; and whether deliberation is ongoing. [Fn. 57] 
          Here, even though two years have passed and the
communications do not appear to be highly sensitive, the scales tip
in favor of nondisclosure.  The governor's national political
agenda for the state is no less important than the governor's state
political agenda, a topic we discussed in Capital Information
Group.  And while the public has an interest in how the state
spends public money, it has less interest in knowing how the state
might have spent public money, but did not.  Finally, Gwich'in has
a great interest in maintaining its way of life and culture, but it
can conduct its own lobbying efforts to advance that interest.
          We therefore hold that the deliberative process privilege
protects all seven disputed documents.
     B.   Attorney's Fees
          The superior court awarded the Office of the Governor
$1,000 in appellate attorney's fees and paralegal costs under
Appellate Rule 508(e), and summarily denied Gwich'in's motion for
attorney's fees.  In doing so, it found that the Office of the
Governor was the prevailing party.
          Gwich'in claims that it was the prevailing party because
the Office of the Governor released one of the eight documents it
originally withheld.  We review the superior court's prevailing-
party determination for abuse of discretion. [Fn. 58]  To decide
which party prevails, the court must "determine, in an overall
sense, which party the decision favors." [Fn. 59]  We have upheld
a superior court's conclusion that a requestor of information was
not a prevailing party when the requestor was granted access to
some documents but was denied access to others held to be
privileged. [Fn. 60]
          Here the superior court affirmed the withholding of the
seven disputed documents and decided that the agency was the
prevailing party.  Even though Gwich'in may have induced the
release of an eighth document, the state's withholding of the seven
documents was the main issue in the appeal to the superior court.
[Fn. 61]  The superior court therefore did not abuse its discretion
by determining that the Office of the Governor was the prevailing
          Gwich'in next argues that because it qualifies as a
public interest litigant, it was an abuse of discretion to award
partial attorney's fees against it.  The Office of the Governor
counters that Gwich'in failed to establish public interest litigant
status by evidence or affidavit.
          We review the superior court's resolution of the public
interest litigant status issue for abuse of discretion. [Fn. 62] 
A party claiming this status must satisfy all four elements of the
public interest litigant test: (1) that the case is designed to
effectuate strong public policy; (2) that numerous people will
benefit from the successful litigation; (3) that only a private
party can have been expected to bring the suit; and (4) that the
party does not have sufficient economic interest to otherwise bring
suit. [Fn. 63]  Although Gwich'in did not file affidavits or
exhibits supporting its claim of public interest litigant status,
its failure to do so is not fatal.
          In Kachemak Bay Watch, Inc. v. Noah, [Fn. 64] we
discussed how a court must determine public interest litigant
status.  There the opponents presented evidence that three members
of Kachemak Bay Watch (KBW) had an economic incentive to sue and
KBW failed to refute this evidence. [Fn. 65]  We upheld the
decision to deny public interest litigant status because the
superior court had "reasonably based its decision on the economic
incentives of the KBW members about whom it had more detailed
information." [Fn. 66]
          Gwich'in provided the superior court detailed information
relevant to the public interest litigant issue.  Its attorney's
fees motion argued that Gwich'in met all four elements of the
public interest litigant test.  Its opposition to the Office of the
Governor's motion for attorney's fees again asserted that Gwich'in
sought the records as a public interest litigant and had no
financial interest in the litigation.  Unlike the party opposing
KBW's claim of public interest litigant status, the Office of the
Governor did not provide more detailed information than Gwich'in to
rebut Gwich'in's assertion of public interest litigant status, but
instead simply relied on briefing arguments.  Gwich'in's failure to
submit formal evidence or affidavits therefore did not doom its
fees arguments.
          We next consider whether it was an abuse of discretion to
award attorney's fees against Gwich'in. [Fn. 67]  Gwich'in claimed
that it was acting on behalf of the Gwich'in people to gain access
to information under the Public Records Act and to challenge the
failure to disclose requested documents. [Fn. 68]  We have
previously held that a suit brought to ensure compliance with
statutory and constitutional policies that concern the public as a
whole effectuates strong public policies. [Fn. 69]  Because open
access to public records is a "fundamental right," [Fn. 70] we
conclude that Gwich'in's administrative appeal effectuated strong
public policies.
          Many people share the Gwich'in Steering Committee's views
on developing ANWR.  Many people therefore might have benefitted
had the disclosure effort succeeded, given the likelihood that
disclosure would have hampered pro-development lobbying. [Fn. 71] 

          Because the Office of the Governor withheld the
documents, only a private, nongovernmental party could reasonably
have been expected to request this information to further
Gwich'in's goal of ensuring compliance with the Public Records Act.
[Fn. 72]
          Finally, the Gwich'in Steering Committee is a nonprofit,
tribal-based organization whose administrative appeal sought access
to information, not money or other economic advantage.  Although
the Office of the Governor argues that the Gwich'in has an economic
interest in the caribou it seeks to protect, we have held that "a
group partially motivated by a threat to its subsistence lifestyle
did not have sufficient economic incentive to sue" and that "a more
substantial financial interest is required" [Fn. 73] to defeat a
claim of public litigant status.
          We therefore hold that it was an abuse of discretion to
award attorney's fees against Gwich'in.
          Because the seven disputed documents are all
predecisional and deliberative, and because Gwich'in's need for the
documents does not outweigh the interest of the Office of the
Governor in preventing interference with its decisionmaking
process, we AFFIRM the superior court decision affirming the
administrative decision withholding the documents as privileged. 
But because Gwich'in was a public interest litigant, we VACATE the
award of attorney's fees against it.


Footnote 1:

     See ch. 123, sec. 34(a), SLA 1996; ch. 103, sec. 90(a), SLA

Footnote 2:

     See AS 09.25.110-.220.  Gwich'in requested: (1) information on
any 1998 fiscal year legislative appropriation to the Office of the
Governor used to promote ANWR oil development; (2) all materials
that addressed plans, efforts, budgets, expenditures, or possible
future activities by various organizations, including Arctic Power,
to promote oil development in ANWR, including cooperative or
coordinated activities of the State of Alaska with those
organizations; and (3) materials relating to communications between
the Office of the Governor and the Department of Natural Resources,
Arctic Power, labor union representatives, Alaska Native
corporation representatives, the Alaska legislature, or others,
addressing the promotion of oil leasing in ANWR.

Footnote 3:

     See 6 Alaska Administrative Code (AAC) 96.350 (2000).  

Footnote 4:

     See Alaska R. App. P. 508(e).

Footnote 5:

     See Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 979 (Alaska

Footnote 6:

     See Pfeiffer v. C.I.A., 721 F. Supp. 337, 340 (D.D.C. 1989);
Chemical Mfrs. Ass'n v. Consumer Prod. Safety Comm'n, 600 F. Supp.
114, 118 (D.D.C. 1984).  Because Alaska's deliberative process
privilege is parallel to the privilege applied by federal courts in
Freedom of Information Act cases, we have found federal law to be
"instructive."  See Capital Info. Group v. State, Office of the
Governor, 923 P.2d 29, 35 n.4 (Alaska 1996).

Footnote 7:

     Cf. Chemical Mfrs. Ass'n, 600 F. Supp. at 118 (deferring to
agency's determination of privilege for scientific data because
study was underway, but noting that court would have accorded
closer scrutiny and fuller disclosure after publication).

Footnote 8:

     See Capital Info. Group, 923 P.2d at 33 n.2 (citing Jones v.
Jennings, 788 P.2d 732, 735 (Alaska 1990)) (affording no deference
to trial court).  This standard is applied appropriately to an
administrative decision when it concerns the "analysis of legal
relationships about which courts have specialized knowledge and
experience."  Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971).

Footnote 9:

     AS 09.25.110(a).

Footnote 10:

     AS 09.25.120(a).

Footnote 11:

     City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d
1316, 1323-24 (Alaska 1982).

Footnote 12:

     Id. at 1323 (quoting MacEwan v. Holm, 359 P.2d 413, 421-22
(Or. 1961) (en banc)); see also ch. 200, sec. 1, SLA 1990
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.").

Footnote 13:

     AS 09.25.120(a)(4).

Footnote 14:

     See Capital Info. Group, 923 P.2d at 33 (citing Municipality
of Anchorage v. Anchorage Daily News, 794 P.2d 584, 589 (Alaska
1990)); see also Doe v. Alaska Superior Court, 721 P.2d 617, 622
(Alaska 1986).

Footnote 15:

     See Capital Info. Group, 923 P.2d at 33. 

Footnote 16:

     See id. (quoting Natalie A. Finkelman, Note, Evidence and
Constitutional Law, 61 Temp. L. Rev. 1015, 1033 (1988)).

Footnote 17:

     See id.

Footnote 18:

     923 P.2d 29 (Alaska 1996).

Footnote 19:

     See id. at 34.

Footnote 20:

     See id. at 34 n.3, 36.

Footnote 21:

     See id. at 36 (quoting Russell L. Weaver & James T. R. Jones,
The Deliberative Process Privilege, 54 Mo. L. Rev. 279, 283-85
(1989) (footnotes omitted) [hereinafter Weaver & Jones]).

Footnote 22:

     See id. at 34 ("Unlike the common law based deliberative
process privilege . . . the executive privilege in Nixon was deemed
constitutionally required by the separation of powers doctrine.");
see also City of Colorado Springs v. White, 967 P.2d 1042, 1047-48
(Colo. 1998); Kaiser Aluminum & Chem. Corp. v. United States, 157
F. Supp. 939, 945-47 (Ct. Cl. 1958) (discussing purposes for
limiting discovery of government officials' deliberative
processes); see also Weaver & Jones, supra note 21, at 315.

Footnote 23:

     See Capital Info. Group, at 35-36; see also City of Colorado
Springs, 967 P.2d at 1051.

Footnote 24:

     See Capital Info. Group, 923 P.2d at 36.

Footnote 25:

     See Weaver & Jones, supra note 21, at 290.

Footnote 26:

     See City of Colorado Springs, 967 P.2d at 1051 (quoting NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 151-52 (1975)).

Footnote 27:

     See Capital Info. Group, 923 P.2d at 35-36.

Footnote 28:

     See id. at 36.

Footnote 29:

     See id. (citations omitted).  

Footnote 30:

     See id. (citation omitted).  

Footnote 31:

     See City of Colorado Springs, 967 P.2d at 1052.

Footnote 32:

     See Capital Info. Group, 923 P.2d at 37.

Footnote 33:

     See id.

Footnote 34:

     Id. (quoting City of Kenai v. Kenai Peninsula Newspapers,
Inc., 642 P.2d 1316, 1323 (Alaska 1982) (quoting MacEwan v. Holm,
359 P.2d 413, 421-22 (Or. 1961)).

Footnote 35:

     In Doe v. Alaska Superior Court we required the state on
remand to identify specific documents and to explain why they fell
within the scope of the executive privilege because the state had
objected to disclosing an entire file, not just specific documents
within the file. [Fn. 74]  See Doe, 721 P.2d at 626.  Contrary to
Gwich'in's reading of Doe, this requirement does not place a
"heavy" burden upon the state to detail why the documents should
not be furnished. Gwich'in also relies on Capital Information
Group, but that case discussed the state's "burden" at the
balancing-of-interests stage, not the level of detail required when
the agency makes its written determination.  See Capital Info.
Group, 923 P.2d at 36 (quoting Weaver & Jones, supra note 21, at
315). [Fn. 75]

Footnote 36:

     967 P.2d 1042 (Colo. 1998).

Footnote 37:

     See id. at 1053-54.  That case decided an appeal of a trial
court's grant of an order to show cause why documents should not be
disclosed; it was not an appeal of an administrative decision.  Seeid. at 1045.

Footnote 38:

     See id. at 1053 (citing Vaughn v. Rosen, 484 F.2d 820, 826-27
(D.C. Cir. 1973)).

Footnote 39:

     See id. 

Footnote 40:

     Id. at 1053-54 (citations omitted).

Footnote 41:

     See id. at 1057.  Because the Colorado court had not
previously specified the procedural requirements for asserting the
privilege, that court held that the trial court's in camera review
of the documents was "more than an adequate substitute for an
evaluation of a Vaughn index." [Fn. 76]  Id.           

Footnote 42:

     Capital Info. Group, 923 P.2d at 35 (quoting Doe, 721 P.2d at

Footnote 43:

     See City of Colorado Springs, 967 P.2d at 1057 (holding that
outside consultant's evaluation of working environment and policies
was privileged because report contained observations on current
atmosphere and suggestions on how to improve division rather than
expression of final agency decision); Daily Gazette Co. v. West Va.
Dev. Office, 482 S.E.2d 180, 192 (W. Va. 1996) (holding that
deliberative process privilege protects written advice, opinions,
and recommendations to public body from outside consultants
obtained during public body's decisionmaking process); see also Doe, 
721 P.2d at 624-25 (discussing decisionmaker's need for candid
advice and "freedom to think out loud").

Footnote 44:

     See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 n.18

Footnote 45:

     See Weaver & Jones, supra note 21, at 293-94.

Footnote 46:

     See Sears, 421 U.S. at 152-54.

Footnote 47:

     See ch. 123, sec. 34(a), SLA 1996; ch. 103, sec. 90(a), SLA

Footnote 48:

     City of Colorado Springs, 967 P.2d at 1057.

Footnote 49:

     See Sears, 421 U.S. at 152 n.19 (stating that if 
communication has both predecisional and postdecisional functions,
communication's primary character and risks of disclosure should be

Footnote 50:

     See id. at 151 n.18.

Footnote 51:

     See Weaver & Jones, supra note 21, at 292 ("[D]ownstream
communications are not always postdecisional.  If they do in fact
precede the decision, as when they involve a discussion between
superior and subordinate about what the appropriate policy ought to
be, a downstream communication may be predecisional.").

Footnote 52:

     Progressive Animal Welfare Soc'y v. University of Wash., 884
P.2d 592, 600 (Wash. 1994).

Footnote 53:

     See Capital Info. Group, 923 P.2d at 36; see also Weaver &
Jones, supra note 21, at 292-93 ("Documents which are predecisional
in nature retain their protection even after the decision is

Footnote 54:

     The Office of the Governor also asserts that Gwich'in failed
to argue at the administrative level that the balance of interests
favored disclosure and therefore waived any balancing argument. 
This waiver argument fails.  Gwich'in could not have argued the
balancing prong of the privilege at the agency level because the
agency appeal afforded no opportunity for briefing.

Footnote 55:

     Capital Info. Group, 923 P.2d at 38.

Footnote 56:

     See Weaver & Jones, supra note 21, at 319.

Footnote 57:

     See Weaver & Jones, supra note 21, at 317-18.

Footnote 58:

     See Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 981 (Alaska
1997); Hickel v. Southeast Conference, 868 P.2d 919, 927-28 (Alaska

Footnote 59:

     Alaska Wildlife Alliance, 948 P.2d at 981 (citing Hickel, 868
P.2d at 925).

Footnote 60:

     See id. 

Footnote 61:

     See Buza v. Columbia Lumber Co., 395 P.2d 511, 514 (Alaska
1964) (prevailing party "is one who successfully prosecutes the
action or successfully defends against it, prevailing on the main
issue . . . the one in whose favor the decision or verdict is
rendered and the judgment entered").

Footnote 62:

     See Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816, 821
(Alaska 1997).

Footnote 63:

     See id. at 827. 

Footnote 64:

     935 P.2d 816 (Alaska 1997).

Footnote 65:

     See id. at 828.

Footnote 66:


Footnote 67:

     See id. at 821 (reviewing superior court's decision on public
interest litigant status and attorney's fees for abuse of

Footnote 68:

     See AS 09.25.110, .120; see also Capital Info. Group v. State,
Office of the Governor, 923 P.2d 29, 33 (Alaska 1996); City of
Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316, 1323
(Alaska 1982).

Footnote 69:

     See Eyak Traditional Elders Council v. Sherstone, Inc., 904
P.2d 420, 424-25 (Alaska 1995).

Footnote 70:

     See City of Kenai, 642 P.2d at 1323.

Footnote 71:

     See Eyak Traditional Elders Council, 904 P.2d at 425.

Footnote 72:

     See id.

Footnote 73:

     See id. at 426 (quoting Alaska Survival v. State, Dep't of
Natural Resources, 723 P.2d 1281, 1292 (Alaska 1986)).

Footnote 74:

      See Doe, 721 P.2d at 619, 626.

Footnote 75:

     See Capital Info. Group, 923 P.2d at 36-37 (quoting City of
Kenai, 642 P.2d at 1323).

Footnote 76:

     See Colorado Springs, 967 P.2d at 1057.