The Louisiana Legislature is considering a bill that would reduce the statutory protections that keep many of the governor’s records forever out of public view. Following events in which lawmakers initially were rebuffed in seeking public information about administration policy initiatives and major contracts, the Senate and Governmental Affairs Committee advanced Senate Bill 57 by Sen. Robert Adley, R-Benton, to the Senate floor.
Senate Bill 57 could be improved with appropriate changes but nonetheless overall would advance the cause of transparency in state government and increase public confidence in the state’s open records law.
The general aim of this bill – to end the decades-old practice of keeping documents in the governor’s office out of public view – is commendable. The legislation would benefit from some refinements to provide more clarity in definition and scope; however, little time remains before the end of the session and any amendments would have to be drafted and explained quickly while avoiding careless changes that could bring unintended consequences.
Before 2009, documents and communications in the custody of the governor were not subject to Louisiana’s open records law. PAR research found that no other state granted its governor such a broad exception.
At the current administration’s urging, the law was changed significantly in 2009 to focus on the types of records that could be held privileged from disclosure. Among its most important provisions, Act 495 of the 2009 regular session introduced into Louisiana law the concept that the governor’s office could withhold records that are part of the “deliberative process,” which was defined in the law as “the process by which decisions and policies are formulated.” Such records encompass “all forms of pre-decisional advice, opinions, deliberations, or recommendations made for the purpose of assisting the governor in the usual course of the duties and business of his office,” the new law provided.
This was by no means a new concept outside of Louisiana. On federal and state levels across the country, the deliberative process privilege has been intertwined with public records disputes and court cases about the separation of powers between the branches of government, executive privilege and the need for a free flow of ideas among key decision-makers in an executive office to ensure better policy making.
The deliberative process is easier to describe as a general concept than it is to define for purposes of determining what should be withheld or released under a public records law. The 2009 law defined the term broadly. Under some interpretations, the new law expanded the scope of records not available to the public beyond the prior law exemption, which had applied to those records that were “ordinarily kept in the custody or control of the governor.” The 2009 law brought a new and potentially more transparent and useful way of thinking about the governor’s records, but it arguably ended up making more records exempt from public scrutiny than before.
The 2009 law provides that records containing budgetary advice or recommendations to the governor will be privileged (and thus not available for public disclosure) for six months if they are in the custody of one of the governor’s agencies or departments. The administration has taken the position that these types of records had not previously been public documents but that the new law had created greater transparency by making them open to the public after the six-month period. The administration maintains that it has released many documents related to budgetary matters. A contrary view, consistent with the position of some prior administrations, suggests that many of these types of documents were open to the public before 2009 and that the new law shut the window on transparency for a period long enough to conceal information during the most important months of the annual state budgeting process. Whatever the original intent of this provision in the 2009 legislation, its result may have diminished the Legislature’s and the public’s confidence in the state’s public records law. New legislation should remove this expansion.
Senate Bill 57 proposes dramatic changes. With a few exceptions, it would make public all of the records of the governor’s office, including records related to budgetary matters, with no six-month privilege. The bill would discard references and definitions of “deliberative process.”
Removing the shield of “deliberative process” by statute will not necessarily eliminate that form of defense by a governor seeking to keep documents under wraps. A governor still could assert a constitutional right to a deliberative process privilege in denying release of records. Louisiana courts previously have recognized constitutional privileges in cases involving the judicial branch and the Public Service Commission, which is outside of the governor’s control. If disputes arise concerning the governor’s records, the courts could decide how the right should be applied under the Constitution and could recognize a deliberative process or executive branch privilege.
Alternatively, the Legislature could keep the concept of deliberative process in statute but define it more narrowly. This approach might strengthen the chances of solving records disputes without resorting to expensive appeals by those willing to take a case to court to obtain records. It also might address a concern by the administration with regard to plaintiffs extensively trolling governor’s records for evidence in lawsuits against the state.
PAR recommends that new legislation make open-records exceptions to allow intra-office communications to remain confidential and to protect the security of the governor and his family. Senate Bill 57 in its current form contains definitions and references to the terms “office of the governor” and “internal staff” while making inconsistent uses of them and does not say whether deputies and key support staff are included in the definitions. The governor’s spouse is not consistently mentioned; the status of her records should be clarified. These terms should be defined more specifically. The legislation also should make clear that, except for intra-office communications, open records include e-mails or other electronic communications that concern state business even when conducted on personal e-mail accounts or on personal communication devices or computers of the governor’s staff.
These definitions are important because they would help determine the scope of the bill’s impact and also affect whose documents need to be maintained and archived for eventual release. Under current law, other than as to financial documents, no records of the governor’s office are required to be archived or eventually released. PAR recommends that the governor’s privileged records should eventually become public documents to inform the historical record. Senate Bill 57 would release the documents 10 years after the governor leaves office. Although a 2001 executive order has clouded the issue, federal law set a standard that the president of the United States must release documents 12 years out of office, and even then has the right to defend their release for reasons of national security and executive privilege. Surely a governor of Louisiana could abide by a similar disclosure without harm to the public.
Senator Adley’s bill arrives for a high-profile debate during a climate of mistrust and frustration between the administration and state lawmakers. Some of these frustrations are the result of disagreements over new initiatives involving government consolidations, privatizations and new state contracts. These types of initiatives have been the hallmark of the Jindal administration, making it all the more necessary that the Legislature and the public be entitled to a thorough study of these ideas.
If a governor’s office were to hold back information and analysis of such initiatives, that practice would inhibit the debate and foster mistrust. The administration would be in the position of being able to pick and choose which documents and analysis it will disclose, maintaining secrecy around evidence that might weigh against its policies. It is important for the state to change those aspects of the law that would let this happen. Even if the current administration makes a case that it is not withholding material for political reasons, the administration cannot argue that future administrations would not take advantage of the opportunity as provided in the current law.
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