327 P.3d 752
Wyo.2014Background
- Robert Aland requested public records about the Governor's May 24, 2012 letter re: grizzly bears from the Governor's Office and Wyoming Game & Fish under the Wyoming Public Records Act (WPRA).
- The State produced some records and withheld others, citing the deliberative process privilege (under WPRA §16-4-208(b)(v)) and the attorney-client privilege; privilege logs and affidavits accompanied the withholdings.
- Aland petitioned the district court for disclosure; the district court conducted in camera review and ordered disclosure of only a few disputed items, upholding most withholdings.
- On appeal the Wyoming Supreme Court reviewed (de novo) whether the WPRA incorporates a deliberative process privilege and whether the withheld documents fell within deliberative-process or attorney-client privileges.
- The Court held that Wyoming recognizes a common-law deliberative process privilege incorporated into WPRA §16-4-208(b)(v), but that the privilege is narrow and each withheld document must satisfy three prongs: (1) inter/intraagency communication, (2) pre-decisional and deliberative, and (3) disclosure would be contrary to the public interest.
- Applying the test, the Court affirmed attorney-client withholdings for two documents, upheld many but not all deliberative-process withholdings, and remanded/disclosed specific drafts and emails that were not deliberative or had been adopted as final.
Issues
| Issue | Aland's Argument | State's Argument | Held |
|---|---|---|---|
| Whether WPRA incorporates a deliberative process privilege | WPRA exemptions shouldn’t be read to import a broad deliberative privilege; legislature didn’t expressly add it | WPRA §16-4-208(b)(v) parallels FOIA Exemption 5 and incorporates the common-law deliberative privilege | Court holds Wyoming recognizes a narrow common-law deliberative process privilege incorporated in §16-4-208(b)(v) |
| Whether specific withheld records are protected by deliberative process privilege | Many withheld drafts/emails are final or factual and thus disclosable | Drafts, notes, and cover emails reflect pre‑decisional deliberation and would chill candid discussion if disclosed | Mixed: some drafts/notes/emails are privileged; others (e.g., adopted drafts, factual talking points, near-identical drafts, some agendas) are not and must be disclosed |
| Whether withheld records are protected by attorney-client privilege | Governor's logs insufficiently cited statute; some records are notes by non-attorneys or circulated beyond client, so not privileged | Records memorialize legal advice from Deputy AG to Governor staff; Attorney General’s Office is the client; privilege applies | Court upholds attorney-client privilege for two disputed documents (notes/memo of legal advice); privilege log citation was adequate |
| Whether WPRA notice requirements were violated by privilege log wording | The State’s log failed to cite the specific statute and thus violated WPRA §16-4-203(e) | Describing documents as "privileged legal advice" provided sufficient notice of grounds without statutory citation | Court rejects Aland’s notice argument: the log and affidavits gave adequate information; no WPRA violation found |
Key Cases Cited
- Powder River Basin Res. Council v. Wyo. Oil & Gas Conservation Comm'n, 320 P.3d 222 (Wyo. 2014) (WPRA statutory interpretation and disclosure presumptions)
- Freudenthal v. Cheyenne Newspapers, Inc., 233 P.3d 933 (Wyo. 2010) (prior discussion of deliberative privilege and WPRA)
- Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (U.S. 2001) (FOIA Exemption 5 and incorporation of privileged intra-agency materials)
- EPA v. Mink, 410 U.S. 73 (U.S. 1973) (FOIA discovery-language as guide to privileges)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (adopted advice loses chilling effect once it becomes public)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (deliberative process privilege origins and limits)
- Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980) (tests for pre‑decisional and deliberative character)
- Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999) (drafts and deliberative status analysis)
- Trentadue v. Integrity Comm., 501 F.3d 1215 (10th Cir. 2007) (minor details of decisionmaking not automatically protected)
- City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) (state adoption of FOIA-style exemption incorporates deliberative privilege)