Lawmakers stall public records debate

A different kind of Fourth
July 9, 2013
‘Hail Satan!’ : The new mantra
July 9, 2013

Lawmakers complain that they can’t get certain information from Gov. Bobby Jindal’s administration and that a provision they wrote into public records law in 2009 has been wrongly applied to other agencies.

Yet the discussion of tweaking the law to address worries that too many items are kept secret from the public about their government and their tax dollars came up only once during the recently-ended legislative session.

And it was quickly squelched because of opposition from Jindal’s office.

So the law remains the same, and the only way people can complain if they are denied access to documents is the expensive and burdensome one: to file a lawsuit.

The Republican governor, who campaigned on improving government transparency, backed legislation four years ago that rewrote the governor’s office public records exemption.

The change removed a blanket exemption for the governor and replaced it with language that allows the governor’s office to shield records relating to its “deliberative process,” with the argument made that internal decision-making is protected to allow the free flow of ideas.

Lawmakers were clear when they debated and passed the change in 2009 that they intended it for the governor’s office, not other agencies, boards and commissions.

But the Jindal administration has broadly interpreted the deliberative process exemption and instead used it to expand what can be kept from public view in a way that several lawyers and public records experts say isn’t supported in law.

Records in departments outside the governor’s office have been withheld, and other agencies overseen by Jindal allies have started shielding documents by claiming the privilege and asserting it is established in federal and state case law.

The legal claim has been used to avoid turning over documents about contentious and politically-sensitive topics, including disagreements over the handling of a tax credit program, budget cuts to the LSU health care system and privatization efforts at university-run hospitals.

One of Jindal’s former executive counsels, who still works for the administration, encouraged LSU officials to shield records about budget decisions by claiming a deliberative process exemption – an exemption the university system isn’t granted in state statute.

In asserting the exemption, some agencies have cited a 2004 court ruling from the 1st Circuit Court of Appeal involving a dispute in which the Louisiana Legislative Auditor’s Office was denied documents from the Public Service Commission.

The appeals court upheld the agency’s ability to shield some records from the legislative auditor, but the decision had nothing to do with public records law. That hasn’t stopped agencies from declaring a records exemption they were never given by lawmakers.

“It’s become somewhat of a virus. It’s spread around in a way that we think is harmful,” Robert Travis Scott, president of the nonpartisan Public Affairs Research Council of Louisiana, told lawmakers during the one legislative hearing involving the topic.

PAR advocates for openness in government.

“If this trend goes unchecked, every bureaucrat in every state agency in government will be marking documents and correspondence as off limits to public access simply because these government employees and not the law have decided to keep the records off limits,” Scott warned.

Agency claims of a deliberative process exemption came up when the House and Governmental Affairs Committee debated a bill by Rep. Jerome “Dee” Richard, an independent from Thibodaux, that would have limited the governor’s public records exemption.

Rep. Mike Danahay, D-Sulphur, agreed that lawmakers never intended the deliberative process claim to be used beyond the governor’s office.

“They’re doing something outside of what it was intended to do, and that needs to be addressed,” he said.

But lawmakers on the committee suggested Richard’s bill went too far.

Rather than tweaking the bill to deal with concerns about the inappropriate use of the governor’s public records exemption across other state agencies and boards, the committee – including Danahay – simply voted 6-3 to kill the bill.

That was the last debate on the issue for the session. If someone wants change, the next debate likely will have to be in a courtroom.

EDITOR’S NOTE: Melinda Deslatte covers the Louisiana Capitol for The Associated Press.