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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).