CHEYENNE, Wyo. — A dispute over an activist's request to inspect documents regarding grizzly bears sets the stage for another round of arguments at the Wyoming Supreme Court over whether public officials have the right to withhold materials they use in reaching final decisions about policy matters.
Grizzly activist Robert Aland, who divides his time between Wyoming and Illinois, filed a brief with the state Supreme Court last week arguing that Gov. Matt Mead and Scott Talbott, director of the Wyoming Game and Fish Department, were unjustified in withholding records he requested regarding grizzly bear management.
Aland had filed a request for records supporting Mead's conclusion that grizzly population is healthy enough that federal Endangered Species Act protections are no longer needed. Mead made the statement in a May 2012 letter to then-Interior Secretary Ken Salazar.
Aland, a tax attorney, has litigated against the federal government's efforts to end protections for grizzly bears in the Greater Yellowstone area and has worked to protect their habitat.
Aland's brief, written by Cheyenne lawyer Bruce Moats, states that Mead and Talbott refused to disclose some records that the governor relied on in reaching his conclusion that the bears no longer need federal protections. They cited the "deliberative process" privilege as justification for their refusal.
Federal law recognizes such an exception, which allows federal government officials to refuse to disclose certain materials they relied on in reaching a final decision. Aland maintains the exception doesn't exist in state law.
The Wyoming Supreme Court in a 2010 case declined to resolve the issue. In that case, Cheyenne Newspapers Inc., which publishes the Wyoming Tribune-Eagle, sued former Gov. Dave Freudenthal after his administration refused to turn over draft state agency budget materials.
In its 2010 ruling, the Wyoming Supreme Court said that if the deliberative process privilege existed, it still wouldn't apply in the matter of Freudenthal's administration withholding the draft budget documents. The court also stated that if the Wyoming Legislature wanted to incorporate the deliberative process privilege into the state's public records law, "we presume it will act to do so."
Aland is appealing a ruling by District Judge Thomas Campbell of Cheyenne, who upheld the denial of his records request. Campbell stated he had reviewed the Wyoming Supreme Court's 2010 ruling and was satisfied that deliberative process privilege should be adopted in the state and that it protected the documents Aland was seeking.
Renny MacKay, spokesman for Mead, said Monday he didn't have any immediate comment on Aland's appeal. The Wyoming Attorney General's Office also has a policy of not commenting on pending cases.
Moats, lawyer for Aland, said Monday that adopting the deliberative process exemption promises to result in a significant reduction in the amount of information that citizens are able to get from state government.
Moats frequently represents the Wyoming Press Association on public records issues and The Associated Press is a member of the association.
"If the federal experience is any predictor of what will happen in Wyoming, there will be widespread attempts at least to use the privilege to withhold information," Moats said. "How successful those might be will depend on the scope of any privilege that would be adopted."
Moats noted that the Wyoming Legislature considered a proposal to add the deliberative process exemption to the state's public records law in 2012 but voted against doing so. He said he believes the Legislature's refusal to codify the privilege is important, especially considering the Supreme Court's invitation to address the issue in its previous ruling.