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Fuller v. City of Homer (8/15/2003) sp-5725
Fuller v. City of Homer (8/15/2003) sp-5725
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ABIGAIL FULLER and )
KACHEMAK AREA COALITION, ) Supreme Court No. S-10079
INC., d/b/a CITIZENS CONCERNED )
ABOUT ANNEXATION, ) Superior Court No.
) 3HO-00-83 CI
Appellants, )
)
v. ) O P I N I O N
)
CITY OF HOMER, ) [No. 5725 - August 15, 2003]
)
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Homer,
Harold M. Brown, Judge.
Appearances: Brooks W. Chandler, Hicks,
Boyd, Chandler & Falconer, LLP, Anchorage,
for Appellants. Gordon J. Tans, Perkins
Coie, LLP, Anchorage, for Appellee. D. John
McKay, Law Offices of D. John McKay,
Anchorage, for Amicus Curiae Alaska Press
Association.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
PER CURIAM.
BRYNER, Justice, concurring.
I. INTRODUCTION
We are asked here to consider whether the City of
Homer's city manager could properly claim the deliberative
process privilege to deny public access to staff documents that
he used in preparing a petition for annexation that the city
filed with the Alaska Local Boundary Commission. Because the
record shows that the public's interest in having access to these
documents outweighs the city's interest in confidentiality, we
conclude that the privilege does not apply and that the Alaska
Public Records Act requires their disclosure.
II. FACTS AND PROCEEDINGS
In December 1999 the Homer City Council passed a
resolution directing its city manager, Ron Drathman, to prepare a
time line and work plan for annexing certain areas adjoining the
city that were benefiting from city services. In response to
this directive, Drathman wrote to his department heads, notifying
them of the proposed annexation's general scope and assigning
each department certain tasks that would provide Drathman the
basis for preparing his annexation proposal. Drathman's
memorandum warned against premature disclosure of the requested
information: "To avoid confusion: This information should not be
released to [the] public or Commissions until the Staff plan is
complete. This is a Staff Work in progress." After receiving
responses from his staff, Drathman completed a proposed petition
for annexation and submitted it to the city council. By a
resolution passed on March 13, 2000, the city council approved
Drathman's proposed petition, directed Drathman to file it with
the Alaska Local Boundary Commission, and designated him as the
city's representative in the annexation proceedings. Drathman
filed the petition the following week.
Soon after the petition was filed, Homer resident
Abigail Fuller wrote to the city clerk, asking to inspect various
records relating to the petition;1 Fuller specified that her
request was based on the Alaska Public Records Act and provisions
of the Homer City Code that cover public release of records.2
Drathman made available some of the requested documents but
withheld many others, invoking the deliberative process
privilege. Fuller appealed to the city council, which upheld
Drathman's claim of privilege without reviewing the requested
records.
Fuller then appealed to the superior court. The court
remanded the case to the council, directing it to review the
requested documents and to reconsider its decision based on the
review. After conducting the review as ordered, the council
released the documents that had already been made public but
reaffirmed its decision as to the remaining documents. The
superior court ultimately upheld the council's decision.
Fuller appeals, claiming that the deliberative process
privilege does not apply and that she is entitled to full
disclosure.
III. DISCUSSION
A. Standard of Review
In the present case, we review the city council's
decision directly: "When a superior court acts as an intermediate
court of appeal we give no deference to its decision."3 We apply
our independent judgment in deciding the legal issues presented
by the case.4
B. Statutory Background
The claim of privilege in this case arises against the
backdrop of Alaska's public records act and the Homer city code's
public release of records ordinance. Alaska's public records 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."5
The act applies to both state and local officials and
departments.6 And it broadly defines "public record" to include
a vast array of official documents:
books, papers, files, accounts, writings,
including drafts and memorializations of
conversations, and other items, regardless of
format or physical characteristics, that are
developed or received by a public agency, or
by a private contractor for a public agency,
and that are preserved for their
informational value or as evidence of the
organization or operation of the public
agency[.][7]
The breadth of this definition reflects Alaska's strong
commitment to ensuring broad public access to government records.8
We have repeatedly held that the act creates a presumption in
favor of disclosure9 and that the act's implicit legislative
policy of broad public access requires courts to narrowly
construe exceptions to disclosure.10 The legislative findings to
the 1990 amendments to the public records act explain that public
access serves as an important "check and balance" that allows
citizens to maintain "control of government."11 And our decisions
have characterized public access to records as a "fundamental
right."12
In City of Kenai v. Kenai Peninsula Newspapers, Inc.,
we likened the policy supporting the act's right of public access
to the philosophy underlying Alaska's open meetings act, which
requires that all government agencies covered by the statute act
"openly and that their deliberations be conducted openly."13
Moreover, we have emphasized that broad public access to
government records is a vitally important part of our
contemporary system of government:
The cornerstone of a democracy is the
ability of its people to question,
investigate and monitor the government. Free
access to public records is a central
building block of our constitutional
framework enabling citizen participation in
monitoring the machinations of the republic.
Conversely, the hallmark of totalitarianism
is secrecy and the foundation of tyranny is
ignorance. It has been written that "[i]f a
nation expects to be ignorant and free, in a
state of civilization, it expects what never
was and never will be."[14]
Fortifying the provisions of Alaska's public records
act, the City of Homer's public records ordinance ensures even
broader public access to city records. It declares the city's
intent "to provide full and free access of the public to
municipal records and information so that the people of the City
may be well informed at all times as to municipal business."15
And it specifies that the types of records open to public
inspection "shall include, but shall not be limited to," among
other things, "[f]inancial and operational cost information,
including information as to revenues, expenditures, indebtedness,
department budget requests, and formal departmental
recommendations in regard to project priority; . . . [and]
[f]easibility, management, cost effectiveness and similar reports
prepared by the municipality with municipal moneys."16 Moreover,
Homer's ordinance emphasizes that this "policy of providing
public access to public information shall be broadly and
liberally construed."17
C. The Deliberative Process Privilege
With these legislative provisions and their broad
underlying purposes in mind, we next consider the role of the
deliberative process privilege. Alaska's public records act sets
out a limited number of exceptions to its broad disclosure
requirements; one of these exceptions is for "records required to
be kept confidential by . . . state law."18 On two prior
occasions, we have recognized that at common law courts
recognized a deliberative process privilege.19 And because
Alaska's statutory definition of "state law" encompasses common
law as well as positive law, we have held that the deliberative
process privilege is "one of the judicially recognized `state
law' exceptions" to public access under the public records act.20
In so holding, we have explained that the deliberative process
privilege is intended to "protect[] the mental processes of
government decisionmakers from interference."21 And we have
noted, generally, that "[p]ublic officials may assert this
privilege and withhold documents when public disclosure would
deter the open exchange of opinions and recommendations between
governmental officials."22
Our cases hold that to establish a prima facie claim to
this privilege in any given case, the government must show that
the document whose disclosure is sought is an internal
communication or one that the government directly solicited and
that the communication is both predecisional and deliberative.23
If the court reviews the document and finds that it meets these
criteria, the privilege presumptively attaches, overriding the
public records act's usual presumption of disclosure.24 The
burden then shifts to the requesting party to demonstrate that
the public's interest in disclosure outweighs the government's
interest in confidentiality.25
Whether a particular document supports a prima facie
claim of privilege under this analysis is a question for case-by-
case decision. We have upheld deliberative process privilege
claims in only two prior cases, both of which involved important
political or policy decisionmaking at the highest levels of
government. In Capital Information Group v. State, Office of the
Governor, we approved the governor's invocation of the privilege
for documents concerning state legislative proposals, emphasizing
that development of the governor's legislative package 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."26 And in Gwich'in Steering
Committee v. State, Office of the Governor, we approved the
governor's reliance on the privilege to block disclosure of
documents concerning lobbying for the Arctic National Wildlife
Refuge, reasoning that the governor's national lobbying efforts
on behalf of the state were as important as his formulation of a
state legislative package.27
These decisions do not preclude a broader reach for the
privilege; instead, they leave the area open to development on a
case-by-case basis. But here the question does not turn on
whether the city established a prima facie deliberative process
claim. For as we explain below, Fuller has met her burden of
demonstrating that the public's interest in disclosure outweighs
the city's interest in confidentiality.
D. Fuller's Interest in Public Disclosure Outweighs
Any Legitimate Interest in Confidentiality the City
Might Have.
We thus turn to Fuller's specific claim. Fuller,
noting that we have never extended the deliberative process
privilege to a municipal government, argues that the privilege
does not extend to municipalities and that, in any event, it
should not apply to the records at issue here. The city counters
that municipal officials need the privilege as much as state
officials and that there is no sound legal basis for declining to
apply it in the municipal context. The city goes on to defend
its reliance on the privilege to prevent disclosure of the
records at issue here.
In our view, Fuller fails to articulate any convincing
basis for declining to extend the deliberative process privilege
to municipal governments. We nevertheless conclude that Fuller's
request for disclosure must be honored because, on the facts of
this case, the public's interest in disclosure predominates over
any legitimate interest in confidentiality that Drathman might
have retained after the city council opted to file his proposed
annexation petition.
While Drathman certainly might have had compelling
reasons to protect internal staff discussions from outside
intrusion while his staff was actually deliberating the issues,
the legitimacy of the city's interest in stifling disclosure
after discussion ended seems far less obvious. We recognize, of
course, that a predecisional and deliberative communication does
not automatically lose its privileged character after
deliberation ceases and a decision is made.28 In this regard, we
have held that each case must be considered on its own merits29
and that the time elapsed after deliberations is a relevant
consideration.30 But the facts of this case weigh strongly in
Fuller's favor.
Here, Fuller submitted her request for disclosure not
only after Drathman's deliberative process had ended, but also
after his recommendation had been submitted to and approved by
the city council and after Drathman had filed the city's petition
for annexation with the Local Boundary Commission. Earlier, in
requesting information from his staff, Drathman expressed concern
about maintaining confidentiality while his proposal was being
prepared but implied that the disputed information could be
disclosed once the annexation plan was completed; his memorandum
instructed his staff that "information should not be released to
[the] public or Commissions until the Staff plan is complete."31
The council reviewed Drathman's report and elected to petition
for annexation, using his report as its basis. In his affidavit
supporting the annexation, Drathman expressly states that the
revenues and expenses he presented to the commission reflect
information developed by his various departments. The city
council's decision affirming Drathman's invocation of the
privilege mirrored his concerns, specifically describing the need
to protect staff members from public scrutiny while their
deliberations were in progress, but neglecting to specify any
ongoing need for confidentiality after the deliberative process
ended.32
Given these circumstances, neither Drathman nor members
of his senior staff could reasonably have expected that any
internal communications addressing the merits of the annexation
process would remain sheltered from public disclosure under a
claim of privilege after the council ultimately decided to file
an annexation petition. In contrast to the city's attenuated
interest in confidentiality, the public's interest in disclosure
of all potentially relevant government records grew strong and
specific once the council filed the annexation petition.
Our review of the disputed records confirms that the
public's interest in their disclosure now clearly outweighs the
city's initial interest in confidentiality. The documents are
basically factual, dealing largely with issues of costs and the
city's ability to extend its services. Moreover, these documents
include important annexation cost information not readily
available elsewhere. We find no tactical discussion that could
be considered as "suggesting a strategy" for presenting the case
either to the council or the local boundary commission.33 And we
see no realistic danger that post-petition disclosure would have
any appreciable chilling effect on the city's future deliberative
process. Thus, regardless of whether the deliberative process
privilege might have justified denying access to the documents at
some earlier stage of the process, we conclude that the privilege
was not available by the time the council denied Fuller's request
for disclosure.
IV. CONCLUSION
Because we conclude that the deliberative process
privilege did not apply in these circumstances, we REVERSE the
superior court's order and REMAND with directions to grant
Fuller's request for disclosure.
BRYNER, Justice, concurring.
I join in the court's opinion but would emphasize that,
in my view, the strong and specific terms of the Alaska Public
Records Act raise serious doubts as to whether the kind of
routine governmental records at issue here - responses to a city
manager's request to staff members for background information
concerning a proposed annexation petition - would qualify as
either "predecisional" or "deliberative" communications for
purposes of establishing a prima facie claim under Alaska's
deliberative process privilege.34
_______________________________
1Co-appellants Citizens Concerned About Annexation separately
submitted a similar request and received essentially the same
response as Fuller; since our consideration of Fuller's claim
disposes of all issues raised on appeal, we need not separately
consider CCAA's claim.
2Specifically, Fuller cited AS 09.25.110 and Homer City Code
(HCC) 1.80.060. After Fuller submitted her request, Alaska's
public records act - initially codified as AS 09.25.100-.124 -
was renumbered as AS 40.25.100-.124. Thus, the provision cited
by Fuller, former AS 09.25.110, now appears as AS 40.25.110. See
AS 40.25.110 Historical Notes. This opinion will cite the public
records act as it is currently codified.
3Gwich'in Steering Comm. v. State, Office of the Governor, 10
P.3d 572, 577 (Alaska 2000).
4Id. at 577-78.
5AS 40.25.110(a).
6AS 40.25.220(2) (defining "public agency" as "a political
subdivision, department, institution, board, commission,
division, authority, public corporation, council, committee, or
other instrumentality of the state or a municipality") (emphasis
added); see also Municipality of Anchorage v. Anchorage Daily
News, 794 P.2d 584, 589 (Alaska 1990) ("Alaska's public records
statutes apply to municipalities[.]").
7AS 40.25.220(3).
8Gwich'in Steering Comm., 10 P.3d at 578; City of Kenai v. Kenai
Peninsula Newspapers, Inc., 642 P.2d 1316, 1323 (Alaska 1982);
see also Doe v. Alaska Superior Court, 721 P.2d 617, 625 (Alaska
1986) (involving request for documents in litigation discovery
rather than a request under the public records act).
9E.g., Anchorage Daily News, 794 P.2d at 589; Kenai Peninsula
Newspapers, Inc., 642 P.2d at 1323.
10Gwich'in Steering Comm., 10 P.3d at 578; Capital Info. Group v.
State, Office of the Governor, 923 P.2d 29, 33 (Alaska 1996);
Anchorage Daily News, 794 P.2d at 589; Doe, 721 P.2d at 622.
11Ch. 200, 1, SLA 1990.
12Gwich'in Steering Comm., 10 P.3d at 578; Kenai Peninsula
Newspapers, Inc., 642 P.2d at 1323 (quoting MacEwan v. Holm, 359
P.2d 413, 421-22 (Or. 1961)).
13642 P.2d at 1324 (quoting AS 44.62.312(a)). More specifically,
Kenai Peninsula Newspapers, Inc. states:
There is a strong public interest in
disclosure of the affairs of government
generally, and in an open selection process
for high public officials in particular.
AS 44.62.312(a) powerfully expresses the
philosophy underlying this [public interest]
. . . .
. . . .
In addition, [AS 40.25].110 and .120
articulate a broad policy of open records.
Id. at 1323-24.
14Jones v. Jennings, 788 P.2d 732, 735-36 (Alaska 1990) (citations
omitted).
15HCC 1.80.010 (1995).
16HCC 1.80.030 (1983) (emphasis added).
17Id.
18AS 40.25.120(a)(4) ("Every person has a right to inspect a
public record in the state, including public records in
recorders' offices, except . . . records required to be kept
confidential by a federal law or regulation or by state law[.]").
The city's public records ordinance similarly recognizes an
exception when state or federal law would prevent disclosure.
HCC 1.80.030 (1983) (requiring all city records to be open to
disclosure "[e]xcept as provided by Section 1.80.040, or by other
provisions of municipal, state or federal law").
19Gwich'in Steering Comm. v. State, Office of the Governor, 10
P.3d 572, 578 (Alaska 2000); Capital Info. Group v. State, Office
of the Governor, 923 P.2d 29, 34 (Alaska 1996).
20Gwich'in Steering Comm., 10 P.3d at 578.
21Id.
22Id.
23Id. at 579, 581; Capital Info. Group, 923 P.2d at 35-56.
Gwich'in's description of these requirements can be summarized
as follows. A document qualifies as predecisional if it was
written before deliberations ended. 10 P.3d at 579. The
government official claiming the privilege does not have to link
the document to a specific decision because the privilege
protects the process, "not final decisions." Id. at 581. A
document satisfies the deliberative test if it includes policy
discussions that have "opinions, recommendations, or advice about
agency policies." Id. at 579. If a document contains just
facts, then it is not deliberative unless the facts are enmeshed
in the decisionmaking process or the process would be revealed by
the document's release. Id. Documents that contain "opinions
and interpretations" of a policy decision already made are not
considered deliberative. Id.
24Id.; see also City of Kenai v. Kenai Peninsula Newspapers, Inc.,
642 P.2d 1316, 1323 (Alaska 1982) (discussing presumption in
favor of disclosure and balancing test that applies in deciding
whether exemption to public records act applies in absence of
claim of privilege).
25Gwich'in Steering Comm., 10 P.3d at 579; Capital Info. Group,
923 P.2d at 37.
26923 P.2d at 38.
2710 P.3d at 576, 584.
28Id. at 583; Capital Info. Group, 923 P.2d at 36.
29Capital Info. Group, 923 P.2d at 36.
30See Gwich'in Steering Comm., 10 P.3d at 583-84.
31We note that Drathman's request for information from his staff
did not call for or generate any intrinsically sensitive or
confidential deliberative communications. Had that been the
case, the city would have been entitled to invoke applicable
provisions from the public records act's extensive list of
specific exemptions. See AS 40.25.120(a) (1)-(10).
32On this issue, the council's decision upon remand from the
superior court states:
The precept that the public should have
access to the raw exchange of ideas and
proposals among the city departments and the
City Manager prior to that information being
properly evaluated, analyzed, and synthesized
into a meaningful conclusion is destructive
to the administration's decisionmaking
process and damaging to the quality of its
decisions. Putting public officials in the
position of placing their every untested
thought or recommendation on the table for
public examination and reproach before it
undergoes internal review to identify the
best recommendations or conclusions is again
harmful. It would lead not only to public
overreaction and needless concern, but also
to reluctance by the city staff to engage in
internal expressions of ideas and
recommendations. These are significant harms
that the privilege is intended to protect
against.
(Emphasis added.)
33See Gwich'in Steering Comm., 10 P.3d at 581.
34Cf. City of Garland v. The Dallas Morning News, 22 S.W.3d 351,
364 (Tex. 2000).
