Abigail Fuller and Kachemak Area Coalition, Inc., d/b/a Citizens Concerned About Annexation v. City of Homer

We are asked here to consider whether the City of Homer's city manager
could properly claim the deliberative process privilege to deny public access to staff documents that he used in preparing a petition for annexation that the city filed with the
Alaska Local Boundary Commission. Because the record shows that the public's interest
in having access to these documents outweighs the city's interest in confidentiality, we
conclude that the privilege does not apply and that the Alaska Public Records Act
requires their disclosure.

II. FACTS AND PROCEEDINGS

In December 1999 the Homer City Council passed a resolution directing
its city manager, Ron Drathman, to prepare a time line and work plan for annexing
certain areas adjoining the city that were benefiting from city services. In response to
this directive, Drathman wrote to his department heads, notifying them of the proposed
annexation's general scope and assigning each department certain tasks that would
provide Drathman the basis for preparing his annexation proposal. Drathman's
memorandum warned against premature disclosure of the requested information: "To
avoid confusion: This information should not be released to [the] public or Commissions
until the Staff plan is complete. This is a Staff Work in progress." After receiving
responses from his staff, Drathman completed a proposed petition for annexation and
submitted it to the city council. By a resolution passed on March 13, 2000, the city
council approved Drathman's proposed petition, directed Drathman to file it with the
Alaska Local Boundary Commission, and designated him as the city's representative in
the annexation proceedings. Drathman filed the petition the following week.

Soon after the petition was filed, Homer resident Abigail Fuller wrote to the
city clerk, asking to inspect various records relating to the petition;1 Fuller specified that her request was based on the Alaska Public Records Act and provisions of the Homer
City Code that cover public release of records.2 Drathman made available some of the
requested documents but withheld many others, invoking the deliberative process
privilege. Fuller appealed to the city council, which upheld Drathman's claim of
privilege without reviewing the requested records.

Fuller then appealed to the superior court. The court remanded the case to
the council, directing it to review the requested documents and to reconsider its decision
based on the review. After conducting the review as ordered, the council released the
documents that had already been made public but reaffirmed its decision as to the
remaining documents. The superior court ultimately upheld the council's decision.

Fuller appeals, claiming that the deliberative process privilege does not
apply and that she is entitled to full disclosure.

III. DISCUSSION

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B. Statutory Background

The claim of privilege in this case arises against the backdrop of Alaska's
public records act and the Homer city code's public release of records ordinance.
Alaska's public records act provides that "[u]nless specifically provided otherwise, the
public records of all public agencies are open to inspection by the public under
reasonable rules during regular office hours."5 The act applies to both state and local
officials and departments.6 And it broadly defines "public record" to include a vast array
of official documents:

books, papers, files, accounts, writings, including drafts and
memorializations of conversations, and other items,
regardless of format or physical characteristics, that are
developed or received by a public agency, or by a private
contractor for a public agency, and that are preserved for their
informational value or as evidence of the organization or
operation of the public agency[.][7]

The breadth of this definition reflects Alaska's strong commitment to
ensuring broad public access to government records.8 We have repeatedly held that the
act creates a presumption in favor of disclosure9 and that the act's implicit legislative
policy of broad public access requires courts to narrowly construe exceptions to
disclosure.10 The legislative findings to the 1990 amendments to the public records act
explain that public access serves as an important "check and balance" that allows citizens
to maintain "control of government."11 And our decisions have characterized public
access to records as a "fundamental right."12

In City of Kenai v. Kenai Peninsula Newspapers, Inc., we likened the policy
supporting the act's right of public access to the philosophy underlying Alaska's open
meetings act, which requires that all government agencies covered by the statute act
"openly and that their deliberations be conducted openly."13 Moreover, we have emphasized that broad public access to government records is a vitally important part of
our contemporary system of government:

The cornerstone of a democracy is the ability of its
people to question, investigate and monitor the government.
Free access to public records is a central building block of
our constitutional framew ork enabling citizen participation in
monitoring the machinations of the republic. Conversely,
the hallmark of totalitarianism is secrecy and the foundation
of tyranny is ignorance. It has been written that "[i]f a nation
expects to be ignorant and free, in a state of civilization, it
expects what never was and never will be."[14]

Fortifying the provisions of Alaska's public records act, the City of
Homer's public records ordinance ensures even broader public access to city records.
It declares the city's intent "to provide full and free access of the public to municipal
records and information so that the people of the City may be well informed at all times as to municipal business."15 And it specifies that the types of records open to public
inspection "shall include, but shall not be limited to," among other things, "[f]inancial
and operational cost information, including information as to revenues, expenditures,
indebtedness, department budget requests, and formal departmental recommendations
in regard to project priority; . . . [and] [f]easibility, management, cost effectiveness and
similar reports prepared by the municipality with municipal moneys."16 Moreover,
Homer's ordinance emphasizes that this "policy of providing public access to public
information shall be broadly and liberally construed."17

C. The Deliberative Process Privilege

With these legislative provisions and their broad underlying purposes in
mind, we next consider the role of the deliberative process privilege. Alaska's public
records act sets out a limited number of exceptions to its broad disclosure requirements;
one of these exceptions is for "records required to be kept confidential by . . . state
law."18 On two prior occasions, we have recognized that at common law courts recognized a deliberative process privilege.19 And because Alaska's statutory definition
of "state law" encompasses common law as well as positive law, we have held that the
deliberative process privilege is "one of the judicially recognized ‘state law' exceptions"
to public access under the public records act.20 In so holding, we have explained that the
deliberative process privilege is intended to "protect[] the mental processes of
government decisionmakers from interference."21 And we have noted, generally, that
"[p]ublic officials may assert this privilege and withhold documents when public
disclosure would deter the open exchange of opinions and recommendations between
governmental officials."22

Our cases hold that to establish a prima facie claim to this privilege in any
given case, the government must show that the document whose disclosure is sought is
an internal communication or one that the government directly solicited and that the
communication is both predecisional and deliberative.23 If the court reviews the document and finds that it meets these criteria, the privilege presumptively attaches,
overriding the public records act's usual presumption of disclosure.24 The burden then
shifts to the requesting party to demonstrate that the public's interest in disclosure
outweighs the government's interest in confidentiality.25

Whether a particular document supports a prima facie claim of privilege
under this analysis is a question for case-by-case decision. We have upheld deliberative
process privilege claims in only two prior cases, both of which involved important
political or policy decisionmaking at the highest levels of government. In Capital
Information Group v. State, Office of the Governor, we approved the governor's
invocation of the privilege for documents concerning state legislative proposals,
emphasizing that development of the governor's legislative package is "one of the most
sensitive and important functions that the Governor performs while in office, and the
need for frank discussion of policy matters among the Governor's advisors is perhaps
greater here than in any other area."26 And in Gwich'in Steering Committee v. State,
Office of the Governor, we approved the governor's reliance on the privilege to block disclosure of documents concerning lobbying for the Arctic National Wildlife Refuge,
reasoning that the governor's national lobbying efforts on behalf of the state were as
important as his formulation of a state legislative package.27

These decisions do not preclude a broader reach for the privilege; instead,
they leave the area open to development on a case-by-case basis. But here the question
does not turn on whether the city established a prima facie deliberative process claim.
For as we explain below, Fuller has met her burden of demonstrating that the public's
interest in disclosure outweighs the city's interest in confidentiality.

D. Fuller's Interest in Public Disclosure Outweighs Any Legitimate
Interest in Confidentiality the City Might Have.

We thus turn to Fuller's specific claim. Fuller, noting that we have never
extended the deliberative process privilege to a municipal government, argues that the
privilege does not extend to municipalities and that, in any event, it should not apply to
the records at issue here. The city counters that municipal officials need the privilege as
much as state officials and that there is no sound legal basis for declining to apply it in
the municipal context. The city goes on to defend its reliance on the privilege to prevent
disclosure of the records at issue here.

In our view , Fuller fails to articulate any convincing basis for declining to
extend the deliberative process privilege to municipal governments. We nevertheless
conclude that Fuller's request for disclosure must be honored because, on the facts of this
case, the public's interest in disclosure predominates over any legitimate interest in
confidentiality that Drathman might have retained after the city council opted to file his
proposed annexation petition.

While Drathman certainly might have had compelling reasons to protect
internal staff discussions from outside intrusion while his staff was actually deliberating
the issues, the legitimacy of the city's interest in stifling disclosure after discussion ended
seems far less obvious. We recognize, of course, that a predecisional and deliberative
communication does not automatically lose its privileged character after deliberation
ceases and a decision is made.28 In this regard, we have held that each case must be
considered on its own merits29 and that the time elapsed after deliberations is a relevant
consideration.30 But the facts of this case weigh strongly in Fuller's favor.

Here, Fuller submitted her request for disclosure not only after Drathman's
deliberative process had ended, but also after his recommendation had been submitted
to and approved by the city council and after Drathman had filed the city's petition for
annexation with the Local Boundary Commission. Earlier, in requesting information
from his staff, Drathman expressed concern about maintaining confidentiality while his
proposal was being prepared but implied that the disputed information could be disclosed
once the annexation plan was completed; his memorandum instructed his staff that
"information should not be released to [the] public or Commissions until the Staff plan
is complete."31 The council reviewed Drathman's report and elected to petition for annexation, using his report as its basis. In his affidavit supporting the annexation,
Drathman expressly states that the revenues and expenses he presented to the
commission reflect information developed by his various departments. The city
council's decision affirming Drathman's invocation of the privilege mirrored his
concerns, specifically describing the need to protect staff members from public scrutiny
while their deliberations were in progress, but neglecting to specify any ongoing need
for confidentiality after the deliberative process ended.32

Given these circumstances, neither Drathman nor members of his senior
staff could reasonably have expected that any internal communications addressing the
merits of the annexation process would remain sheltered from public disclosure under
a claim of privilege after the council ultimately decided to file an annexation petition.
In contrast to the city's attenuated interest in confidentiality, the public's interest in disclosure of all potentially relevant government records grew strong and specific once
the council filed the annexation petition.

Our review of the disputed records confirms that the public's interest in
their disclosure now clearly outweighs the city's initial interest in confidentiality. The
documents are basically factual, dealing largely with issues of costs and the city's ability
to extend its services. Moreover, these documents include important annexation cost
information not readily available elsewhere. We find no tactical discussion that could
be considered as "suggesting a strategy" for presenting the case either to the council or
the local boundary commission.33 And we see no realistic danger that post-petition
disclosure would have any appreciable chilling effect on the city's future deliberative
process. Thus, regardless of whether the deliberative process privilege might have
justified denying access to the documents at some earlier stage of the process, we
conclude that the privilege was not available by the time the council denied Fuller's
request for disclosure.

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Click the case caption above for the full text of the Court's opinion.