- Photo by Robin May
- DOE Supt. John White invoked the 'deliberative process' exemp-tion to the state's public records law to avoid supplying documents regard-ing how schools were selected for the state's voucher program.
An article in the Monroe News-Star last May about a controversial faith-based school getting approved for hundreds of taxpayer-financed vouchers has ignited a legal conflagration over Louisiana's Public Records Act and Gov. Bobby Jindal's ongoing efforts to keep the public's business under wraps. The dispute began as a public records squabble between the News-Star and the Louisiana Department of Education (DOE), but it has since escalated to include major media outlets across the state, the LSU Board of Supervisors (which has refused to turn over documents relating to draconian cuts to LSU-run hospitals) and the governor's office.
The article that started it all was published on May 26. News-Star education writer Barbara Leader reported that the New Living Word School, a small Christian school founded by Pastor Jerry Baldwin in Ruston, had been approved for 315 slots under the state's new Louisiana Scholarship program, more commonly known as Jindal's voucher program. The 315 vouchers approved for New Living Word were the most awarded to any school in the state and represented a potential for $2.7 million in public dollars. The vouchers were awarded even though New Living Word lacked the facilities as well as the equipment to accommodate that many students. After a public outcry, the total number of vouchers approved for New Living Word dropped to 165 — still an extraordinarily high number for a small, little-known school.
"A classroom Baldwin presented as typical had a video monitor, no computers and long desks to accommodate about 11 students," Leader wrote. What troubled voucher critics even more was the News-Star uncovered all this before the state did — because DOE officials were not required to conduct a site visit before approving a school for the voucher program. Four days after Leader's article appeared, in response to critical questions from the state Senate and Governmental Affairs Committee, state Education Supt. John White testified that approvals for voucher schools were preliminary — that in fact there was a second "due diligence" phase to determine final approvals.
The News-Star attempted to confirm White's remarks by filing a public records request for internal DOE emails, specifically those "regarding phases included in the process for school approval for the Louisiana Scholarship program." A copy of the request was provided to Gambit by News-Star attorney William McNew.
The department did not hand over the requested emails.
After the paper published an editorial excoriating the state for its lack of transparency, White responded, claiming DOE was not obligated to produce the records because of something called the "deliberative process privilege," an exemption to the Louisiana Public Records Law that Jindal rammed through the Legislature in 2009 over the objections of the state's largest newspapers. White claimed in his letter that the privilege, which critics say applies only to the governor's office, "protects documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."
The Louisiana Public Records Law requires a response to all document requests within three business days. It further requires immediate disclosure if records are readily available. If the records are not readily available, the law gives a public body three days to make it available. If a response to a request is not received within five business days, the requestor is allowed to sue — and potentially recover attorneys' fees.
White's response came more than a month after the request was filed. In August, the News-Star filed suit. DOE agreed to release the emails early this month, according to News-Star executive editor Kathy Spurlock. "The department is doing, actually probably right as we speak, they're doing an email dump into our drop box account," Spurlock told Gambit last week.
It took a lawsuit — and more than four months — for DOE to comply with the News-Star's public records request. But the battle over public records in Louisiana is far from over. As written into state law, the deliberative process privilege applies to "the process by which decisions and policies are formulated" by the governor. Critics of its broadened application say it applies only to the governor and his staff. Ironically (some would say typically), Jindal pushed the exemption in the name of increased "transparency," claiming his proposed change would remove what previously was known as the governor's privilege from state public records law. That privilege has appeared in the law since 1940 and shielded all the governor's records from the public — but it did not extend to state departments and agencies.
Former Baton Rouge Advocate reporter Kevin Blanchard, who is now an attorney, last year penned an article about Jindal's "privilege" in the Louisiana Law Review, titled "From Sunshine to Moonshine: How the Louisiana Legislature Hid the Governor's Records in the Name of Transparency."
"Here's the way it happened," Blanchard said.. "[Then-executive counsel Jimmy Faircloth] went to the Legislature and said, 'Hey, we're going to open up the governor's office to the public records law.' Before it just didn't exist. Everything the governor touched was exempt from public records." Faircloth, who also represented DOE in the News-Star case, did not respond to repeated calls seeking comment.
Now, it seems almost everything Jindal wants kept from public view is declared to be covered by the deliberative process exemption — and various state agencies and departments are getting in on the act.
The concept of a deliberative process privilege comes from Exemption 5 to the Freedom of Information Act (FOIA), a 1966 federal law that opened public agency records to public scrutiny. The rationale for the federal exemption, Blanchard said, is "you don't want the people who are making recommendations on policy to the ultimate decision maker to be gun shy. You don't want to hamper creativity or new ideas that way."
In his law review article, Blanchard argues that the privilege granted Louisiana's governor is poorly defined. The statutory exemption includes all records "having been used, being in use, possessed, or retained for use by the governor in the usual course of the duties and business of his office relating to the deliberative process of the governor." Further, Blanchard argues, there is no substantive Louisiana case law dealing with the privilege, either as it's written in state statute or, as some have contended, whether it's a constitutional right of the executive branch. Consequently, it's open to interpretation by state courts.
Until a definitive ruling on the law — or at least some clarification — by the state Supreme Court, the Jindal administration is free to assert the privilege as it pleases, far outside the governor's fourth-floor offices in the Capitol.
"They have pushed it way beyond the limits of the big pointy building and out into the agencies," said Advocate executive editor Carl Redman, who covered the state Capitol for years before becoming the paper's editor.
Indeed, agencies in the executive branch of state government have repeatedly claimed the privilege:
• In the Monroe News-Star case seeking records relating to DOE's voucher approval process.
• In response to two public records requests in July and August by the Associated Press (AP). One request sought Department of Education records relating to the voucher school approval process; the other sought records from the Division of Revenue related to the state's alternative fuel tax credit.
• In response to Willis-Knighton Health System's (WKHS) June request for records pertaining to the extension of Louisiana Highway 3132 near Shreveport.
• And again in response to a September request by The Advocate for communications among LSU officials prior to the announcement of more than $150 million in cuts to seven LSU-run hospitals in south Louisiana.
Earlier this month, The Advocate reported that a letter from LSU-contracted attorney Shelby McKenzie to university president William Jenkins credits Jindal's then-executive counsel Liz Murrill with the idea of invoking the privilege to deny a similar records request by Tom Aswell, an independent journalist who runs the news website Louisiana Voice. A week earlier, Jindal spokesman Kyle Plotkin claimed the governor's office played no role in LSU's decision to assert the privilege.
The Advocate's story on McKenzie's letter was published Oct. 15. Later that day, Jindal replaced Murrill as his top lawyer, moving her into the Division of Administration.
"We don't think the privilege applies anyplace," Advocate editor Redman says. "There's one reference in the revised statutes that mentions deliberative process ... which applies to the governor. Nobody at LSU was ever elected governor of the state of Louisiana. And this is what was so damning, if you will, in the correspondence we got between the LSU attorney and the LSU president."
McKenzie disagrees. He says the deliberative process privilege, as applies to the executive branch, is a constitutional right. The statute, he adds, has nothing to do with it.
"It reflects the separation of powers between the executive and the legislative branches, and it also respects the rights of individuals' freedom of expression to engage in the deliberative process without it being too invasive," he says. "The concept being that the individual administrators ... within the executive branch of government — which would include universities — anybody within the executive branch should be able to brainstorm ideas without the fear of being embarrassed by expressions of their ideas while they're half-baked." In other words, advisors and administrators should not have to be intimidated by external forces — politics or public opinion — while formulating policy.
"So the right of the public to know should occur when the ideas have gelled at least into a preliminary recommendation of a particular course of action," McKenzie said.
As to McKenzie's separation of power argument, Redman points out that the legislative branch has a "limited" constitutional privilege in Article 3, Section 8 of the state constitution. That section exempts some internal legislative deliberations from disclosure under the Public Records Law, and it has been affirmed in court decisions citing the separation of powers. But, he says, no similar privilege has been extended to the executive branch.
Attorney and blogger C.B. Forgotston, who formerly worked as the chief counsel for the House Appropriations Committee, says McKenzie's separation of powers argument, if valid, would mean that the executive branch is effectively beyond the reach of Louisiana's Public Records Law.
"If he's correct, then we don't have a public records law," Forgotston said. He added that McKenzie neglects another section of the state constitution — Article 12, Section 3 — which states, "No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law."
"I shall not be denied the right, except in cases established by the law," Forgotston said, quoting the specific constitutional provision. "You don't need to go into some broad generalization about the separation of powers. ... In constitutional law, the specific overrules the general." Neither the state constitution nor the federal constitution mentions "deliberative process." If the statutory exemption doesn't apply to agencies, as McKenzie concedes, where is it established by law? It appears in federal law and related case law, but that doesn't necessarily apply to Louisiana law.
Louisiana courts have only cited the privilege in passing, in two cases, both of which involved the Legislative Auditor's authority to obtain documents from state agencies. Neither case involved public records requests. In the first case, Kyle v. the Louisiana Public Service Commission (LPSC), the ruling was procedural. The Louisiana First Circuit Court of Appeal sided with the LPSC, finding that the auditor should have subpoenaed the records it sought rather than attempted to compel them through a writ of mandamus. After reviewing FOIA case law, the court noted that the LPSC had the right to assert the deliberative process privilege to shield records. However, the court did not rule on the merits of that assertion at the time.
The second case, Donelon v. the Louisiana Department of Insurance, in which the First Circuit Court again ruled against the auditor, turned on the attorney-client privilege, though it also recognized deliberative process privilege.
"The question is not that this court ruled specifically that it existed. What the court does do in its discussion is recognize that the privilege can exist," McKenzie said. "There has been no definitive decision in Louisiana on the issue."
So, for now, the executive branch may claim the privilege until a court says otherwise — and that may not be for some time.
AP hasn't filed suit to enforce its request, for example. White, who through a spokesperson initially told AP reporter Melinda Deslatte he would comply after voucher enrollment was complete in early September, has now changed course, asserting the deliberative process privilege and alleging that her request was "overly broad."
The Advocate likewise doesn't plan to sue, Redman says. The News-Star filed suit, but the DOE agreed to hand over the records the paper sought before the suit was served.
"I think that [going to court] is not a risk that the administration wants to take in terms of establishing more stringent authority or rules," News-Star editor Spurlock said. "I think that it's a tactic that will continue to be employed until there's some kind of legislative action or case law. And quite frankly, I think that it's being deployed pretty broadly."
WKHS filed suit over the Highway 3132 records it sought, but the Department of Transportation and Development (DOTD) agreed to turn over the requested information. "DOTD has released all of the records sought by Willis-Knighton to the best of our knowledge, information and belief," WKHS attorney William Pesnell wrote in an email.
Redman said that until a definitive ruling by the courts in favor of transparency, the public's right to know is in jeopardy. "What the public needs to know is this isn't just the media versus government," Redman said. "This is at the heart of what individuals want to know. [Public officials] need to be forced to explain their actions. That's kind of at the heart of government accountability. If the government cares about accountability, as this administration says they do, they ought to welcome the scrutiny and they ought to turn the records over so that everybody can know they've been acting in good faith.
"But right now, we don't know that. And all you can do is guess or trust them, and that's not the best way to have it. Even the great conservative Ronald Reagan said, 'Trust but verify.' Well, we ought to be able to verify."