Summary 2011 WY 55

Summary of Decision March 29, 2011

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

Case Name: Laramie County School District No. One v. Cheyenne Newspapers, Inc.

Citation: 2011 WY 55

Docket Number: S-10-0221

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461874

Appeal from the District Court of Laramie County, Honorable Michael K. Davis, Judge

Representing Appellant (Defendant): David Evans, Richard D. Bush, and Kristi Radosevich of Hickey & Evans, LLP, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Michael J. Krampner and Ian K. Sandefer of Krampner, Fuller & Associates, Casper, Wyoming.

Date of Decision: March 29, 2011

Facts: As the parties agreed that no genuine issues of material fact existed, the district court ruled as a matter of law that the Wyoming Public Records Act, Wyo. Stat. 16-4-201 through 205 (2009), read in conjunction with a provision of the Wyoming Education Act, Wyo. Stat. 21-3-110(a)(ii)(A) (2009), entitled Newspaper to information concerning the names and salaries of the individual employees of District.

Issues: Whether the Wyoming Public Records Act, read in conjunction with the Wyoming Education Code, entitles the Plaintiffs to information concerning the names and salaries of individual employees of a school district.

Holdings: The Wyoming Public Record Act (WRPA), specifically Wyo. Stat. 16-4-203(d), provides that employment contracts, working agreements or other documents setting forth the terms and conditions of employment of public officials and employees are not considered part of a personnel file and shall be available for public inspection. A “public employee” is, according to the Wyoming Governmental Claims Act, any “officer, employee, or servant of a governmental entity.” Wyo. Stat. 1-39-103[(a)(iv)(A) . The WPRA thus contains a specific provision which requires that documents reflecting the terms and conditions of employment be made available. It seems obvious that the amount an employee is paid is a term of any employment contract. Thus, the Appellee would be obligated to make this information available to the public and Plaintiffs unless there is some other specific legal provision providing otherwise. Of course, no governmental entity would be required to disclose personal information such as address, age, date of birth, social security number or other similar personal information, since these do not relate to the terms and conditions of employment, and would impact privacy rights of employees.

The Appellee argues that disclosure of its employees’ salaries correlated to the employees’ names is contrary to a specific provision in the Wyoming Education Code (WEC), Wyo. Stat. 21-3-110(a)(ii)(A) (2009), and that this information is therefore exempt from disclosure regardless of the express terms of the WPRA. It contends that the WEC provides the exclusive means for making its employees’ salary information available to the public, and that the legislature has clearly expressed its intent that the information be provided in categories without reference to individual names. However, Wyo. Stat. 21-3-110(a)(ii)(A) does not contain an express statement that information concerning the identity of a school district’s employees is confidential information which must not be revealed to the public, at least in conjunction with salary information, notwithstanding the provisions of the WPRA. While the legislature intended that school districts would offer general salary information which was not specific to any employee to the public through the annual publication required by Wyo. Stat. 21-3-110, it did not intend to make specific salary information confidential as to those employees if a member of the public or the press wishes to expend the time and effort to obtain that information by making a proper request.

In this case, when § 16-4-203(a)(i) and § 16-4-203(d)([i]ii) of the WPRA and § 21-3-110(a)(ii)(A) of the WEC are read in conjunction with each other, the provisions of the education code are not clear enough to exempt the records sought in light of the specific language of the WPRA concerning the right of access to documents relating to terms and conditions of public employment.

The summary judgment in favor of the Appellant, declaring that the Appellee must make the documents described in Wyoming Stat. 16-4-203(d)(iii) available to them for inspection, without concealment of the identity of the employee involved is affirmed. Other personal information such as address, telephone numbers, social security information, and date of birth may be redacted to protect employee privacy, since this information is not part of the terms and conditions of employment. This ruling is without prejudice to the district’s ability to claim that disclosure of the records of particular employees would do a substantial injury to the public interest and to seek a court order so finding.

J. Golden delivered the opinion for the court.

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 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]