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Palin keeps tight grip on records

Governor's privileges allow administration to restrict public access

Posted: Monday, November 17, 2008

In January 2007, a newly elected Gov. Sarah Palin wrote a letter to her commissioners telling them they were free to speak their minds with her, each other and the public.

Palin, a Republican, said she was writing the e-mail in reaction to allegations made in a political gossip column in the Anchorage Daily News that said she'd banned her cabinet from "voicing their opinions on matters before us."

"Since this is totally false," Palin wrote, "I'll clarify again what has already been expressed by me as my desire to see you all have the freedom to communicate with the public and press in any and all manner you deem appropriate."

"In other words," Palin went on, writing in parenthesis. "Don't do what past administrations have done. I have faith that we're on the right path going a new direction here with freedom of information sharing."

But nearly two years and a run at the vice-presidency later, Palin's administration has a tight grip on access to state records. And experts on public records laws say it appears her administration may be trying to tighten its grip.

Palin can legally withhold certain state records thanks to privileges assigned to governors in a handful of decisions by the Alaska Supreme Court. The idea behind the courts' rulings was to protect a governor's ability to get candid advice from advisers about policy decisions without fear of that advice being made public.

The court has said the governor has an "executive privilege" and a "deliberative process privilege." It said the two terms are synonymous in some cases, but are not identical.

In describing how the governor's deliberative process privilege ought to be applied, the court said only state records that contain a genuine "give and take" of advice and opinions between the governor and her staff about a policy decision before it's made - in the court's terms, records that are both "deliberative" and "predecisional" - can be withheld from the public.

"Postdecisional communications" - state records about a decision that's already been made - "are not protected," the court said.

But Assistant Attorney General David Jones, the Palin administration's point person on public records issues, said the Alaska Supreme Court has not fully explained the differences between the two privileges, and the governor's executive privilege allows her to withhold both "predecisional" and "postdecisional" records.

The Palin administration said two federal court rulings and a ruling from a court in Vermont support this view.

"When existing Alaska constitutional provisions, statutes, regulations, and court decisions don't provide complete answers, both we and the Alaska courts look to rulings of other jurisdictions' courts for guidance," Jones said in an e-mail.

Anchorage attorney John McKay, a leading authority in public records law in Alaska, said it appeared that the state may be trying to expand its ability to restrict the public's access to state records.

McKay said he couldn't say definitively either way without fully examining the state's legal rationale. But he added that he thinks the state already interprets the deliberative privilege process too broadly in withholding documents.

"It would be unfortunate if the government is attempting to further expand arguments in favor of keeping documents from the Alaska public with novel arguments," McKay said.

Jones said the state isn't trying to expand its ability to withhold public records.

"We're simply attempting to interpret the law and apply it to the issues that arise," Jones said.

But Rebecca Braun, the publisher of the Alaska Budget Report, also said that it appears as though the state is trying to reinterpret the law in a way that's inconsistent with previous rulings.

"In these cases it seems ironic for a governor, whose central tenant of her campaigns was greater openness and transparency, to be reinterpreting court cases that would favor less public disclosure," Braun said.

Indeed, the Palin administration hasn't been shy recently in restricting access to state records.

Here's how her administration has handled the wave of public records requests from local and national media after Palin was picked in late August to be the Republican VP nominee:

• Her attorney general ordered that all public records requests go through his office before anything is released.

• Palin's administration has said it needed several weeks and nearly a thousand of dollars to search a single state e-mail account.

• The governor's chief of staff has said that her husband, Todd Palin, is a "proper advisor to the governor," and state records shared with him don't have to be shared with the public.

• Anything her office could legally withhold, it has withheld, according to Linda Perez, Palin's administrative director. The content of state records Palin has withheld range widely from e-mails related to gas lines and energy costs to discussions about the governor's political critics Dan Fagan and Andrew Halcro.

The one recent exception of waiving a privilege, Perez said, was when the governor allowed the Personnel Board's investigation, which cleared the governor of charges that she broke state ethics law, to be made public.

But both the Personnel Board's investigator and the Legislature's investigator, who conducted a similar investigation into Palin's dismissal of her former public safety commissioner and found that the governor did break state ethics laws, complained that they didn't have the level of access to state e-mails they needed.

The Personnel Board's investigator said to consider his results with caution because Palin and a top aide may have wrongfully destroyed state e-mails sent on private accounts that could have affected his investigation's outcome.

Democratic lawmakers have said they're concerned with the Palin administration's actions concerning public records and plan on tackling the issue next legislative session.

Through her spokeswoman, Sharon Leighow, Palin said that she is open to a legislative review of public records laws.

"Governor Palin is open about her goals for Alaska and state government and the means she will pursue to achieve them," Leighow said.

• Contact reporter Alan Suderman at 523-2268 or e-mail alan.suderman@juneauempire.com.



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