Robert H. Aland v. Matthew H. Mead, Governor of the State of Wyoming Wyoming Game & Fish Department and Scott Talbott, Director of the Wyoming Game & Fish Department
2014 WY 83
Wyo.2014Background
- Robert Aland requested records under the Wyoming Public Records Act (WPRA) concerning Governor Mead’s May 24, 2012 letter about grizzly bears; the Governor’s Office and Wyoming Game & Fish produced some records and withheld others.
- The State withheld documents under two privileges: the deliberative process privilege (as an exemption under Wyo. Stat. §16-4-203(b)(v)) and the attorney-client privilege.
- The district court, after in camera review, held WPRA incorporates the deliberative process privilege and upheld withholding almost all challenged documents; it also upheld withholding two of three attorney-client items.
- Aland appealed. The Wyoming Supreme Court reviewed statutory interpretation and privilege application de novo.
- The Court recognized a common-law deliberative process privilege as incorporated into §16-4-203(b)(v), but limited its scope: some drafts/communications were privileged and properly withheld, while others (e.g., documents substantially identical to final, factual memoranda, and some draft agendas/letters) were not and must be disclosed. The Court also affirmed withholding of the two attorney-client documents at issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WPRA incorporates a deliberative process privilege | Aland: WPRA’s text & legislative history do not show intent to adopt such a privilege; public-interest language cuts against it | State: §16-4-203(b)(v) parallels FOIA exemption and thus incorporates the privilege | Court: WPRA incorporates a narrow common-law deliberative process privilege under §16-4-203(b)(v) |
| Scope of the privilege — what documents qualify as intra/interagency, pre-decisional and deliberative | Aland: Many withheld materials are factual, final, or substantially similar to released documents and thus not privileged | State: Drafts, notes, and advisory emails reflect candid deliberations and should be withheld | Court: Applied three-prong test (inter/intraagency; pre-decisional & deliberative; disclosure contrary to public interest) and held some documents privileged, others (e.g., adopted drafts, factual recitations, non-deliberative drafts) not privileged |
| Public-interest balancing unique to WPRA ("contrary to the public interest") | Aland: WPRA’s explicit public-interest requirement weighs against privilege invocation | State: Public interest in candid internal deliberation justifies withholding in many instances | Court: Public-interest prong must be weighed; often satisfied where privilege applies, but custodian bears burden and must justify withholding narrowly |
| Attorney-client privilege for two documents (Docs 1 & 8) | Aland: Privilege log failed to cite statute; documents are notes/memo among non-lawyers or waived by related disclosures | State: Documents memorialize deputy AG legal advice to Governor’s staff and are privileged; log adequately identified legal advice | Court: Privilege log was sufficient; documents reflect legal advice and were properly withheld under attorney-client privilege |
Key Cases Cited
- Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (FOIA Exemption 5 protects deliberative process to enhance candid internal discussion)
- EPA v. Mink, 410 U.S. 73 (1973) (FOIA Exemption 5 incorporates privileges protecting intra-agency advisory materials)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1979) (articulating tests for pre-decisional and deliberative material and when status is lost)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (adopted/used predecisional material may lose privilege)
- United States v. Nixon, 418 U.S. 683 (1974) (privileges are narrowly construed because they impede truth-seeking)