Invoking Alaska's Public Records Act, an organization asked the governor of Alaska to produce documents relating to the governor's lobbying efforts to open the Arctic National Wildlife Refuge for oil exploration and drilling. The governor withheld the documents, claiming privilege. In the ensuing administrative appeal, the superior court held that the deliberative process privilege protected the documents from disclosure. We affirm because we conclude that the documents are predecisional and deliberative, and because the requesting organization did not establish that its need for the documents outweighed the governor's interest in nondisclosure.
II. FACTS AND PROCEEDINGS
The Gwich'in Steering Committee characterizes itself as a nonprofit organization formed to protect the birthplace and nursing grounds of the Porcupine Caribou Herd in the Arctic National Wildlife Refuge (ANWR). It claims that it has been prominent in efforts to prevent oil drilling on the coastal plain of ANWR.
The governor and his executive staff in the Office of the Governor have been active in lobbying the United States Congress to open ANWR for oil and gas development. As part of that effort the Governor's Office hired a lobbying company, The Wexler Group.
Arctic Power is a nonprofit organization that promotes congressional and presidential approval of legislation opening ANWR. Arctic Power has received grants from the Alaska legislature to fund its lobbying efforts.
The Office of the Governor produced most of the requested materials, but declined to produce thirteen documents, claiming that the deliberative process privilege and constitutional rights to privacy and association protected them from disclosure. Gwich'in appealed the nondisclosure to the governor's Chief of Staff, Jim Ayers.
Gwich'in filed a superior court administrative appeal from the refusal to disclose the eight documents. In response, the Office of the Governor released one of the documents and moved to supplement the administrative record with an affidavit of John Katz, the Director of State/Federal Relations and Special Counsel to the Governor, to further explain why the privilege applied to the seven remaining documents. The superior court declined to consider the Katz affidavit and limited its appellate review to the administrative record. The superior court examined the documents in camera and concluded that the deliberative process privilege protected all seven of the disputed documents. In a thoughtful and thorough memorandum opinion, the superior court affirmed the Office of the Governor's decision to withhold the documents.
The superior court also determined that the Office of the Governor prevailed in the litigation and awarded it $1,000 in attorney's fees and paralegal costs.
Both parties appeal. Gwich'in appeals the deliberative process privilege ruling, the attorney's fees award against it, and the denial of its motion for full attorney's fees. The Office of the Governor contingently cross-appeals the denial of its motion to supplement the record with the Katz affidavit.
A. May the Office of the Governor Withhold the Documents?
1. Standard of review
When a superior court acts as an intermediate court of appeal we give no deference to its decision.
2. Alaska's Public Records Act
The 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,"
The Public Records Act contains exceptions to the public disclosure mandate, including one for "records required to be kept confidential by ... state law."
3. The deliberative process privilege
The deliberative process privilege is one of the judicially recognized "state law" exceptions under AS 09.25.120(a)(4).
Gwich'in maintains that this privilege only protects communications relating to constitutionally-prescribed executive powers and duties, as determined by article III of the Alaska Constitution. It reasons that the privilege stems from the executive privilege, which is based on the separation of powers doctrine.
We stated in Capital Information Group v. State, Office of the Governor
To determine whether disclosure would interfere with that process, the proponent of the privilege must show as a threshold matter that the communication is both "predecisional" and "deliberative."
To qualify as predecisional, a communication must have been made before the deliberative process was completed.
The communication must also be deliberative.
c. The balancing test
If the agency demonstrates that a document is predecisional and deliberative, a presumptive privilege attaches in favor of nondisclosure.
4. Privilege application
Gwich'in advances four main arguments which we address in turn.
a. Did the administrative decision allow Gwich'in to meaningfully challenge the assertion of privilege?
Gwich'in first argues that the initial decision by the Office of the Governor is
The Office of the Governor promulgated 6 Alaska Administrative Code (AAC) 96.350 (2000), which requires that an administrative appeal determination of a Public Records Act request denial "must be in writing, must specify the specific statute, regulation, or court decision that is the basis for the denial, and must state briefly the reason for the denial." We have never addressed what an agency must show to invoke the privilege under 6 AAC 96.350.
In City of Colorado Springs v. White,
The requirements of 6 AAC 96.350 are not as extensive as the requirements for a "Vaughn index," but the purpose is the same—to "provide litigants with fundamental information about the allegedly privileged material, and provide them with a meaningful opportunity to challenge the government's claims."
Because we hold that the administrative decision and the superior court's in camera review were sufficient, we do not need to address the Office of the Governor's cross-appeal.
b. Did the Office of the Governor establish that the documents fall under the privilege?
Gwich'in next argues that the Office of the Governor fails to meet the threshold requirements
(i) Decision Management, Inc. memoranda
The Office of the Governor withheld an eleven-page February 4, 1997, memorandum to John Katz from DMI regarding "Congressional passage of ANWR bill." It also withheld two five-page February 26, 1997, memoranda from DMI to Katz regarding the same subject.
Gwich'in first argues that nothing in the administrative record establishes that the DMI memoranda were directly solicited. To qualify for the privilege, the communication or document at issue must be an "internal communication" or one "directly solicited" by a government official.
After reviewing the February 4, 1997, memorandum, we conclude that the document establishes that it was "directly solicited." The Office of the Governor clearly invited DMI to submit a proposal and DMI responded. The February 26, 1997, memoranda were merely addenda to that proposal and therefore were also directly solicited.
Second, Gwich'in argues that the three DMI memoranda are not predecisional because no specific decision was identified; the memoranda were incorporated by reference in a document disclosed by the state, a contract between Arctic Power and DMI; and the memoranda relate to an agreement beyond the decisionmaking capacity of the executive, namely a contract between two private parties.
No specific decision needs to be identified for a document to be predecisional.
Documents that are incorporated by reference or expressly adopted in a final decision by an agency may lose their predecisional status.
We conclude that the DMI memoranda are both predecisional and deliberative. As Gwich'in notes, the decision about whether Arctic Power would contract with DMI was beyond that office's authority, but we conclude that DMI submitted the memoranda in February 1997 as proposals "suggesting a strategy for public information and lobbying campaigns to be overseen by Arctic Power." Although DMI ultimately contracted with Arctic Power, the DMI memoranda are inextricably intertwined with the proposed lobbying plans of the Office of the Governor; those plans may have included using Arctic Power
(ii) The draft media plan
The Office of the Governor also withheld a November 25, 1997 "[d]raft media plan for ANWR from Wexler Group to John Katz." The Wexler Group had originally contracted with the state in September 1995 to lobby for opening ANWR for oil and gas development. That contract was extended through June 1998.
First, Gwich'in argues that the administrative record fails to show that the media plan was directly solicited. Unlike the DMI memoranda, the draft media plan itself does not establish that the Office of the Governor directly solicited the plan from The Wexler Group. But we conclude that other documents withheld by the Office of the Governor—the e-mails between David Ramseur and John Katz—do establish that the draft media plan was directly solicited.
Second, Gwich'in reasons that the privilege protects nongovernmental, directly solicited documents because disclosure would tend to silence informants who provide confidential information. It concludes that disclosure here would have no such chilling effect because the Wexler Group was contractually obligated to provide information. But the privilege does apply in this context, because disclosure might chill "honest and frank communications" between hired consultants and the agency.
Third, Gwich'in claims the media plan is not predecisional to the decision to undertake a media campaign, a decision made when the Office of the Governor hired The Wexler Group in 1995. Even though that decision had already been made, the draft plan is the kind of communication that the privilege protects—a preliminary communication that reflects the give-and-take deliberation of an executive agency. Ongoing deliberation continued on how to effectuate the Office of the Governor's goal of opening ANWR by lobbying Congress in a variety of ways, including deliberation on what media strategy to use. The primary characteristic of the media plan is predecisional.
(iii) The e-mails
In June 1997 David Ramseur, the governor's Deputy Chief of Staff, and John Katz wrote three e-mail messages about hiring a media consultant.
Gwich'in argues that the e-mails were not predecisional because the Office of the Governor did not identify a decision and because the decision to undertake a media campaign had already been made. A specific decision need not be identified for the privilege to attach, and decisions were ongoing regarding the Office of the Governor's lobbying strategies.
Gwich'in also argues that the e-mails were not deliberative because the privilege only protects communications from subordinates. Communications from a senior to a subordinate are not necessarily postdecisional.
c. Has the privilege evaporated?
Before it addresses the balancing of interests, Gwich'in argues, citing a Washington case,
The question is not whether the decision has been implemented, or whether sufficient time has passed, but whether disclosure of these preliminary proposals could harm the agency's future decisionmaking by chilling either the submission of such proposals or their forthright consideration.
d. Does the public interest in disclosure outweigh the interests in non-disclosure?
Finally, Gwich'in argues that the documents relate to the "fate of the Gwich'in's culture and way of life" and that the public has a proprietary interest in the expenditure of over a million dollars of state funds. It further claims that the Office of the Governor's interest is weaker when the documents relate to political lobbying and not to an essential executive branch function.
The Office of the Governor argues that Gwich'in failed to produce any evidence it had a particular interest in disclosure, and that the public has an interest only in how funds are actually spent, not how they might have been spent. It counters Gwich'in's "essential executive function" argument by citing Capital Information Group, which allowed the privilege for documents unrelated to the constitutionally mandated executive activity of policymaking.
When balancing the interests in Capital Information Group, we held that agency proposals submitted to the governor fell under the privilege. We explained:
Gwich'in's attempt to resurrect its "essential executive function" argument in the balancing test therefore fails. The privilege may protect any governmental decisionmaking function, including the governor's policymaking and lobbying of either state or federal government.
Here, even though two years have passed and the communications do not appear to be highly sensitive, the scales tip in favor of nondisclosure. The governor's national political agenda for the state is no less important than the governor's state political agenda, a topic we discussed in Capital Information Group. And while the public has an interest in how the state spends public money, it has less interest in knowing how the state might have spent public money, but did not. Finally, Gwich'in has a great interest in maintaining its way of life and culture, but it can conduct its own lobbying efforts to advance that interest.
We therefore hold that the deliberative process privilege protects all seven disputed documents.
B. Attorney's Fees
The superior court awarded the Office of the Governor $1,000 in appellate attorney's fees and paralegal costs under Appellate Rule 508(e), and summarily denied Gwich'in's motion for attorney's fees. In doing so, it found that the Office of the Governor was the prevailing party.
Gwich'in claims that it was the prevailing party because the Office of the Governor released one of the eight documents it originally withheld. We review the superior court's prevailing-party determination for abuse of discretion.
Here the superior court affirmed the withholding of the seven disputed documents and decided that the agency was the prevailing party. Even though Gwich'in may have induced the release of an eighth document, the state's withholding of the seven documents was the main issue in the appeal to the superior court.
Gwich'in next argues that because it qualifies as a public interest litigant, it was an abuse of discretion to award partial attorney's fees against it. The Office of the Governor counters that Gwich'in failed to establish public interest litigant status by evidence or affidavit.
We review the superior court's resolution of the public interest litigant status issue for abuse of discretion.
Gwich'in provided the superior court detailed information relevant to the public interest litigant issue. Its attorney's fees motion argued that Gwich'in met all four elements of the public interest litigant test. Its opposition to the Office of the Governor's motion for attorney's fees again asserted that Gwich'in sought the records as a public interest litigant and had no financial interest in the litigation. Unlike the party opposing KBW's claim of public interest litigant status, the Office of the Governor did not provide more detailed information than Gwich'in to rebut Gwich'in's assertion of public interest litigant status, but instead simply relied on briefing arguments. Gwich'in's failure to submit formal evidence or affidavits therefore did not doom its fees arguments.
We next consider whether it was an abuse of discretion to award attorney's fees against Gwich'in.
Many people share the Gwich'in Steering Committee's views on developing ANWR. Many people therefore might have benefitted had the disclosure effort succeeded, given the likelihood that disclosure would have hampered pro-development lobbying.
Because the Office of the Governor withheld the documents, only a private, nongovernmental party could reasonably have been expected to request this information to further Gwich'in's goal of ensuring compliance with the Public Records Act.
Finally, the Gwich'in Steering Committee is a nonprofit, tribal-based organization whose administrative appeal sought access to information, not money or other economic advantage. Although the Office of the Governor argues that the Gwich'in has an economic interest in the caribou it seeks to protect, we have held that "a group partially motivated by a threat to its subsistence lifestyle did not have sufficient economic incentive to sue" and that "a more substantial financial interest is required"
We therefore hold that it was an abuse of discretion to award attorney's fees against Gwich'in.
Because the seven disputed documents are all predecisional and deliberative, and because