Summary 2010 WY 80

Summary of Decision issued June 22, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Freudenthal v. Cheyenne Newspapers, Inc.

Citation: 2010 WY 80

Docket Number: S-09-0183; S-09-0184

Appeal from the District Court of Laramie County, the Honorable Thomas T.C. Campbell, Judge and the Honorable Edward L. Grant, Judge, Retired.

Representing Freudenthal: Bruce A. Salzburg, Wyoming Attorney General.

Representing Cheyenne Newspapers, Inc: Bruce T. Moats of Law Office of Bruce T. Moats, PC, Cheyenne, Wyoming.

Amicus Curiae Wyoming Education Association, Equality State Policy Center and Wyoming Trial Lawyers Association: Patrick E. Hacker and Erin M. Kendall of Hacker, Hacker, & Kendall, PC, Cheyenne, Wyoming.

Facts/Discussion: Declining mineral revenue required Governor Freudenthal to request budget reduction plans from all state agencies. Claiming the budget reduction plans were public records under Wyoming’s Public Records Act (WPRA), Cheyenne Newspapers, Inc. (the Newspaper) requested copies of the plans the Department of Family Services (DFS) and the Department of Health submitted to the Governor. The Governor denied the request asserting the plans fell within a deliberative process privilege incorporated in the WPRA. The Newspaper petitioned the district court for access to the budget reduction plans. After an in camera review of the plans, the district court held they were not the sort of documents to which the privilege would apply. As to whether the WPRA incorporated the privilege, the district court opined that the better policy would be to recognize the privilege where the facts warranted it.

The deliberative process privilege, generally: The deliberative process privilege is intended to promote the flow of information within the executive branch of government. It applies to intergovernmental communications by executive officials in general. Deciding whether or not the WPRA incorporates the deliberative process privilege required consideration of Wyoming statutory law and legislative intent, the Court’s previous pronouncements concerning the WPRA, the common law, federal law interpreting FOIA and the degree to which the latter sources should influence the Court’s interpretation of state law. Given the Court’s conclusion, discussed in the next section, that the documents in the instant case would not fall within the privilege in any event, the Court declined to decide whether the WPRA incorporated the privilege.
Scope of the deliberative process privilege: Among jurisdictions that recognize the deliberative process privilege, its scope is limited generally to communications between executive officials that are both pre-decisional and deliberative. It extends to any executive branch employee participating in a particular policy decision; the communication must be intra-governmental, but can be either inter-agency or intra-agency; and the official may be elected or appointed, the privilege protects only pre-decisional materials, not final decisions. Having considered the documents the State submitted for in camera review the Court agreed the plans essentially provided factual information rather than advisory opinions or deliberative thought processes. The spread sheets show dollar amounts, recommended cuts and the potential impact of those cuts. They do not contain personal opinion or advice nor do they reveal information about how the agency decided which program budgets should be cut.

Conclusion: The Court affirmed the district court’s ruling that the budget reduction plans the State withheld must be released to the Newspaper. The plans contain factual information rather than opinions, deliberations or thought processes and are not therefore the sort of documents protected by the deliberative process privilege. The instant case does not present the appropriate occasion to decide whether the deliberative process privilege is incorporated into § 16-4-203(b)(v) of the WPRA. Therefore the Court declined to address that issue. To the extent that the district court held the WPRA incorporated the privilege, the Court reversed.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2e7yams .

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