Wisconsin Supreme Court Considers Deliberative Process Privilege for Governor

The Wyoming Supreme Court heard oral arguments in a case to decide whether the governor enjoys a "deliberative process privilege," which he could use to shield documents from public view.

The case stems from the Wyoming Tribune Eagle's request to see recommended budget cuts from two state agencies and the governor last spring.

Attorney General Bruce Salzburg argued that the privilege fosters frank discussions between agency employees and executives, which might be stifled if the public had access to them.

Open records law advocates disagree, saying if there is to be a deliberative process privilege, it should be the legislative branch that decides, not the judicial branch, and that the public has a right to know the deliberative process of its representatives.

Cheney's Role in the Valerie Plame Wilson Leak Exposed

Thanks to a FOIA lawsuit filed by Citizens for Responsibility and Ethics in Washington ("CREW"), former Vice President Cheney's interview with the FBI in the Valerie Plame Wilson leak investigation will see the light of day.  

The DOJ had sought to withhold the records, arguing that future White House officials would be unwilling to cooperate with law enforcement inquiries if the records were released.  U.S. District Court Judge Emmet G. Sullivan allowed the documents to be redacted for privileged communications.  

Get more here. 

Connecticut Physicians Say FOI Undercuts the Peer Review Process

In a split decision, the Connecticut Supreme Court ruled that peer review privileges do not apply to public records requests filed by patients, stating the privilege only applies in the context of court actions.

The case stems from a former patient's request regarding a state hospital's decision not to renew a doctor's clinical privileges.  

Physicians say the ruling will have a chilling effect on the peer review process for state hospitals and could potentially have an adverse effect on private practices as well. 

In the decision, the majority court said the Legislature would need to fix any perceived flaws in the law.  

For more information, click this link from amednews.com.  

Holder Announces DOJ Policies re: State Secrets Privilege

Attorney General Eric Holder today released new policies and procedures for the Department of Justice regarding the invocation of the state secrets privilege in litigation. The policies go into effect on October 1.

The policies are designed to "strengthen public confidence that the U.S. Government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests."

Under the new policies, the Justice Department will not defend an assertion of the privilege from a government department or agency without the personal approval of the Attorney General. It also establishes a State Secrets Review Committee comprised of senior DOJ officials designated by the Attorney General.

When seeking to invoke the privilege, the department or agency must make a sufficient showing that the privilege is necessary to protect information that could lead to significant harm to national defense or foreign relations.

The new policies announce that the Justice Department will not invoke the privilege to conceal violations of law, inefficiency, or administrative error; to prevent embarrassment; to restrain competition; or to delay the release of information undeserving of the state secrets privilege.

More from the Washington Post here and The Hill here.

Documents being withheld based on privilege

From the Tacoma News Tribune:

Washington’s open records law is far from absolute. Over the years, lawmakers have granted more than 300 exceptions to its broad mandate for public disclosure.

But the common theme among most of those exemptions is that they reside explicitly in state law. Government agencies and citizens may not always agree on whether an exemption should apply, but at least they are both reading from the same page.

Not so with the nebulous “privilege” invoked by the Legislature and governor. In at least three publicized instances this year – and perhaps more lesser-known ones – the legislative and executive branches have claimed an immunity that appears nowhere in statute.

More here.

Text messages are public records, Mich. judge rules

The Detroit Free Press anticipates previewing some 1,400 previously unreleased text messages from former Mayor Kwame Kilpatrick and his former aide Christine Beatty on Monday. The messages were requested by the newspaper after prosecutors used them for Beatty's perjury case. Wayne County Circuit Judge Timothy Kenny denied Kilpatrick and Beatty's right to assert a marital privilege, attorney-client privilege or deliberative-process privilege since the text messages were sent on city-issued pagers.

Wayne County Circuit Judge Timothy Kenny has ruled that former Mayor Kwame Kilpatrick and his former aide Christine Beatty have no right to assert a legal privilege that would allow them to keep previously undisclosed text messages secret.

Kenny is giving lawyers for Kilpatrick and Beatty until Monday to appeal.

"This court does not see the existence of a valid privilege that can be asserted by Ms. Beatty or Mr. Kilpatrick at this juncture," said Kenny, in ordering the release of some 1,400 text messages held by prosecutors and previously under seal.

More here.

Newspaper under fire for story based on police report

Although newspapers have a "fair report privilege" ensuring their liable for printing potentially false information they obtained from police reports, a Houston lawyer says an Arkansas newspaper did not proceed responsibly in this case, the AP reported. The article in question centers around a woman who reported that she had been raped at Ryan Whiteside's house. Whiteside had been connected with the high-profile murder case of an Arkansas beauty queen in 2005. The Arkansas Supreme Court will hear his case against The Courier newspaper, which ran a front-page story on the rape accusation, which was later dismissed.

The slaying of an Arkansas beauty queen still dominated talk around Russellville when an 18-year-old woman told police she had been raped at the home of one of the men who discovered the murder victim's body.

The woman said she didn't remember everything that happened at Ryan Whiteside's house, but was sure she awoke next to Kevin Jones, who later was acquitted in Nona Dirksmeyer's death.

Arkansas State Police troopers investigated and dismissed the woman's allegations — a fact not disclosed until after the local newspaper ran a Page One story detailing the accusations against two men already involved in the high-profile murder case.

More here.