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Freudenthal v. Cheyenne Newspapers

June 22, 2010

DAVID D. FREUDENTHAL, GOVERNOR OF THE STATE OF WYOMING, AND DR. BRENT SHERARD, DIRECTOR OF THE DEPARTMENT OF HEALTH, IN THEIR CAPACITY AS CUSTODIAN OF RECORDS, APPELLANTS (DEFENDANTS),
v.
CHEYENNE NEWSPAPERS, INC., A WYOMING CORPORATION, APPELLEE (PLAINTIFF).
CHEYENNE NEWSPAPERS, INC., A WYOMING CORPORATION, APPELLANT (PLAINTIFF),
v.
DAVID D. FREUDENTHAL, GOVERNOR OF THE STATE OF WYOMING, AND DR. BRENT SHERARD, DIRECTOR OF THE DEPARTMENT OF HEALTH, IN THEIR CAPACITY AS CUSTODIAN OF RECORDS, APPELLEES (DEFENDANTS).



Appeal from the District Court of Laramie County, The Honorable Thomas T.C. Campbell, Judge The Honorable Edward L. Grant, Judge, Retired.*fn1

The opinion of the court was delivered by: Kite, Justice

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Declining mineral revenue required the Governor of the State of Wyoming, David D. Freudenthal (the Governor), to request budget reduction plans from all state agencies. Claiming the budget reduction plans were public records under Wyoming's Public Records Act (WPRA), Wyo. Stat. Ann. §§ 16-4-201 through 16-4-205 (LexisNexis 2009), Cheyenne Newspapers, Inc. (the Newspaper) requested copies of the plans the Department of Family Services (DFS) and the Department of Health submitted to the Governor. The Governor denied the request asserting the plans fell within a deliberative process privilege incorporated in the WPRA.

[¶2] The Newspaper petitioned the district court for access to the budget reduction plans. After an in camera review of the plans, the district court held they were not the sort of documents to which the privilege would apply. As to whether the WPRA incorporated the privilege, the district court opined that the better policy would be to recognize the privilege where the facts warranted it.

[¶3] The Governor and the director of the Department of Health, Dr. Brent Sherard, (collectively the State) appealed the district court's ruling that the privilege did not apply and the plans must be disclosed. The Newspaper cross appealed, asserting Wyoming has not and should not recognize the deliberative process privilege within the WPRA. We affirm the district court's ruling that the documents requested must be disclosed. As to the district court's comments that the privilege should be recognized, we conclude this case does not present the appropriate occasion to decide whether or not the deliberative process privilege is incorporated into the WPRA.

ISSUES

[¶4] The State presents the following issue in its appeal:

Whether the documents sought to be inspected by the Newspaper fall within the deliberative process privilege incorporated in Wyo. Stat. Ann. § 16-4-203(b)(v).

The Newspaper restates the issue as follows:

Whether the budget reduction plan of the Department of Health submitted to the Governor would fall within the deliberative process privilege if the privilege is adopted in Wyoming.

In its cross appeal, the Newspaper states the following issue:

Whether Wyoming courts should recognize the evidentiary privilege against discovery of information regarding the deliberative process of government decision-makers, and, if so, in what form.

The State rephrases the issue as follows:

Whether Wyo. Stat. Ann. § 16-4-203(b)(v), which exempts "[i]nteragency or intraagency memoranda or letters which would not be available by law to a private party in litigation with the agency" from required disclosure under the Wyoming Public Records Act, incorporates the "deliberative process privilege."

FACTS

[¶5] The 2008 Consensus Revenue Estimating Group (CREG) reports projected falling prices for Wyoming produced minerals indicating a likely decline in state mineral revenue. On November 25, 2008, the Governor advised all executive agency heads and the 2009 Wyoming Legislature of the predicted revenue shortfalls. He requested all agency heads to prepare a contingent budget reduction plan.

[¶6] On February 12, 2009, the Governor renewed his request, and directed all agencies to submit budget reduction plans by May 5, 2009, incorporating both a five and ten percent reduction in general fund appropriations. On May 5, 2009, the Newspaper verbally requested DFS's budget reduction plan pursuant to the following WPRA provision:

§ 16-4-202. Right of inspection; . . . .

(a) All public records shall be open for inspection by any person at reasonable times, except as provided in this act or as otherwise provided by law . . . .

[¶7] The Governor's office denied the request stating the documents were in draft form. The Newspaper then made verbal requests to DFS as well as the Department of Health to inspect their budget reduction plans. Again, the Governor's office denied the requests. The Newspaper requested a written statement explaining the grounds for the denial. The Governor issued a written explanation for the denial citing the following WPRA provision:

§ 16-4-203. Right of inspection; grounds for denial; . . . .

(b) The custodian may deny the right of inspection of the following records, unless otherwise provided by law, on the ground that disclosure to the applicant would be contrary to the public interest;

(v) Interagency or intraagency memoranda or letters which would not be available by law to a private party in litigation with the agency[.]

[¶8] On May 22, 2009, the Newspaper petitioned the district court for access to the records previously requested. The Newspaper also sought an order to show cause naming the Governor, Dr. Sherard and DFS director Tony Lewis as defendants.*fn2 On June 18, 2009, the district court issued an Order to Show Cause directing the State to submit the disputed documents to the court, under seal, for in camera review.

[¶9] After reviewing the documents, the district court issued its decision letter in which it stated:

It is the opinion of this Court that it would be better policy to recognize the privilege where the facts warrant it. The more immediate question is whether the documents at issue in this case create facts that warrant application of the privilege.

The district court concluded the documents did not fall within the privilege because they were essentially spread sheets showing the various programs, current allocations, recommended reductions and the impact of those reductions. Concluding that the information contained in the plans was purely factual and contained no personal opinion or advice about policy-making, the district court ordered the ...


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