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State high court: 'Deliberative process' is a limited exemption

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State high court: ‘Deliberative process’ is a limited exemption

  • A privilege that protects the candid exchange of opinion among government decisionmakers is limited and must be examined on a case-by-case basis, the Alaska Supreme Court ruled Aug. 15.

Aug. 19, 2003 — A city resident can see the City of Homer’s staff memoranda leading up to its decision to annex adjoining areas, the Alaska Supreme Court ruled Aug. 15. The justices rejected the city’s argument that a “deliberative process” privilege protects the information from disclosure under the state’s open records law.

The court said that the exemption in the state open records act for information protected by state law covers a common law “deliberative process” privilege, which protects candor among decisionmakers. However, the court said that in order to invoke that privilege, the government must find, in a case-by-case analysis, that any interest it has in confidentiality outweighs the public’s interest in disclosure.

Shortly after the Homer City Council agreed in March 2000 to annex property, Abigail Fuller asked to see staff memoranda preceding that vote. They included comments from various department heads which the city manager relied upon in drafting the annexation petition which the council approved.

The council refused to give out some of the memoranda, and when Fuller sued, the superior court in Homer upheld that decision.

But the state’s high court reversed. It said that the city had only an attenuated interest in confidentiality while the public’s interest in disclosure “grew strong and specific,” once the council filed the annexation petition.

Fuller told the Anchorage Daily News that she believes the documents will show that annexation makes less financial sense than the city has revealed.

The Peninsula Clarion in Kenai reported that the annexation issue in Homer has been highly contentious. Opponents object to the new taxes and regulations they would face in city limits and have also complained that the city has been “high-handed and secretive” in discussing annexation.

The Alaska Press Association filed a friend of the court brief in the case.

(Abigail Fuller v. City of Homer; Counsel: Brooks Chandler, Anchorage; Media counsel John McKay, Anchorage) RD

© 2003 The Reporters Committee for Freedom of the Press

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