This study of gambling on Oahu prepared by a gaming industry consultant has been a point of controversy since Governor Lingle’s office declined to make it public in response to a request from blogger Doug White (Poinography.com).
Although the governor’s office considers it confidential, lobbyist John Radcliffe, who submitted the report to Lingle, was more than willing to make a copy available. Just click on the cover page to read the whole report.
This does give us an interesting look at how well our public records law is working.
If you occasionally stop by Doug White’s blog, you know that he requested (and, after a year of waiting, finally received) communications received by Gov. Lingle asking her to sign or veto bills passed during the 2009 legislative session. Doug has been slowly working his way through the information received, painstakingly cataloging and indexing it all.
One document that caught his attention early on was described as “Executive summary and presentation material, Market and Economic Impact Analysis Two Casinos on the Island of Oahu.”
Governor Lingle’s office did not produce this report, claiming that it is exempt from public disclosure, citing “deliberative privilege.”
Here’s what Doug had to say in a blog entry last month.
This batch does have one especially intriguing item: check out this record, a letter from über lobbyist John Radcliffe about establishing two gaming casinos on Oahu. The report Radcliffe refers to in the letter was not provided in response to my UIPA request, and I challenged the Office of the Governor’s claim of “deliberative privilege.” The initial response from the OIP suggested that they will uphold the deliberative privilege—even if the report was not created by the government but was only “solicited by” a government agency. However, that OIP decision may have been made in ignorance of Radcliffe’s letter, which clarifies that the study is ten years old and, thus, was not solicited by the Lingle administration. I await further OIP review of my challenge, and I have a strong hunch that I’ll get the report. If I do get the report, it will be posted here, natch.
Doug wrote last week (Oct. 6) that he was still waiting to hear from OIP concerning their position on this report.
It’s hard to understand how this record could be considered exempt from public disclosure. First, it was not a product of internal government discussions, but was produced by a third party, in this case an organization that lobbies for the gaming industry. Second, it was never secret or confidential, and was intended for distribution. In the linked memo, Radcliffe says it was “widely circulated among legislative circles.” You can bet that he was well paid to get it in front of the eyeballs of as many influential people as possible. Third, it was over eight years old, dating from December 2000.
Doug says the governor’s office has claimed an exemption based on “deliberative privilege.”
The closest parallel is to Exemption 5 of the federal Freedom of Information Act, which allows federal agencies to withhold “inter-agency or intra-agency memorandums or letters” from the public if they “would not be available by law to a party other than an agency in litigation with the agency.” According to a Justice Department guide to Exemption 5, the “deliberative process privilege” is one of three legal privileges incorporated into this exemption.
According to this Justice Department discussion, the exemption would not apply to communications from consultants representing other outside interests advocating for their own position in competition with other interests.
The Reporters Committee for Freedom of the Press reports it this way:
In 2001, the Supreme Court unanimously reiterated that under Exemption 5 the source of the documents must be a government agency. The Court reasoned that agency consultants might be covered under this provision because they acted like agency employees. But communications from groups (such as the American Indian tribes at issue in that case) who worked in their own interest could not be covered. 54
A later version of this FOIA guidedescribes the circumstances under which courts have extended the privilege to consultants:
In these cases, courts have emphasized that the agencies sought this outside advice, and that in providing their expertise, the consultants effectively functioned as agency employees, providing the agencies with advice similar to what it might have received from an employee (though it should be noted that there is no requirement that an agency not have its own employee with relevant expertise before seeking the assistance of an outside consultant).
The DOJ then addresses the deliberative process privilege directly.
The most commonly invoked privilege incorporated within Exemption 5 is the deliberative process privilege, the general purpose of which is to “prevent injury to the quality of agency decisions.” Specifically, three policy purposes consistently have been held to constitute the bases for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency’s action.
There are a lot of legal references cited in these FOIA guides. But despite all the back and forth, it seems improbable that a ten-year old study prepared by an independent consultant for a special interest group that was widely circulated a decade ago, could now be legitimately claimed to be exempt from public disclosure in order to protect internal government deliberations.
Now its time to go watch the sunrise.