CHEYENNE — Attorneys argued before the Wyoming Supreme Court on Thursday over whether Gov. Matt Mead’s administration properly withheld from an environmentalist state records concerning federal endangered-species protections for grizzly bears.
The state denied the records on the grounds they are exempted under “deliberative-process” privilege. Such privilege would shield records of discussions and deliberations that lead up to decisions by state officials from release under Wyoming’s public-records law.
Bruce Moats, an attorney for environmentalist Robert Aland, argued that the state law doesn’t recognize deliberative-process privilege. An attorney for the state, Ryan Schelhaas, countered that it is permissible based on legislators’ intent when they passed the law in 1969.
State officials need to have the “freedom to think out loud, and test out ideas prior to making decisions” without having those talks known to the public, Schelhaas told the justices.
That serves the public’s interest by leading to better government, he argued.
The high court took the arguments under advisement and will rule in writing later.
Aland seeks records supporting Mead’s assertion that the greater Yellowstone grizzly population is healthy enough so that it no longer needs federal Endangered Species Act protections. Mead made the claim in a 2012 letter to then-Interior Secretary Ken Salazar.
Aland, a tax attorney, received 175 documents from the state. Mead and Game and Wyoming Fish Department Director Scott Talbott withheld 42 other documents.
Moats argued that state lawmakers in 2012 considered adding deliberative-process privilege to the state’s public records law but ultimately didn’t. They wouldn’t have done that, he said, if the privilege already had existed in the law.
There’s no real evidence to support the claim that having government operate in a “fishbowl,” or transparently, impedes good decision-making, he said.
“This idea that an adviser would not give their best advice to a decision-maker, and therefore would withhold their best advice, is questionable,” Moats said.
Moats also argued that because state policy already supported delisting grizzly bears, no documents related to delisting grizzlies could be considered “pre-decisional” and therefore withheld under the deliberative-process privilege — even if such privilege existed.
The federal Freedom of Information Act recognizes deliberative-process privilege. Wyoming lawmakers were aware of that when they modeled the state’s open records law closely on the federal law 45 years ago, Schelhaas argued.
“The executive branch is not a town hall meeting. It is not intended to get the public involved in every decision, as with boards and commissions,” he said.
The state Supreme Court ruled in 2010 that deliberative-process privilege did not apply to draft state budget documents denied to the Wyoming Tribune Eagle newspaper. The justices wrote that if legislators wanted to incorporate deliberative-process privilege into state law, they would go ahead and do so.