Wyoming open records: Press and government battle over exemptions

Wyoming’s ongoing debate about openness of government records and meetings mirrors a larger national discussion on the topic, an analysis of policies nationwide shows.

While every state gives citizens the right to access government information, lawmakers in many states are building in exemptions.

An analysis of public records policies within the State Integrity Investigation done by the Center for Public Integrity “reveals that, in state after state, the laws are riddled with exemptions and loopholes that often impede the public’s right to know rather than improve upon it.”

Wyoming has its share of exemptions, and open-records advocates say many of those are legitimate, but abused.

“In my view, it is not so much the exemptions that are a problem, but the broad interpretation of the exemptions,” said Bruce Moats. The Cheyenne-based attorney specializes in open-government law and has represented Wyoming media in many high-profile cases.

Moats said a lack of understanding, particularly in smaller local governments, often leads to a knee-jerk denial of access to records. Defining clear parameters for denying access to records, training government workers and educating the public becomes a key part of keeping records open. Clarifying misunderstandings about the law as it stands is an important part of the current debate, he said.

Because of misunderstandings about the law, Moats said, “Denying access becomes the default position when it should be the other way around.” The Wyoming Supreme Court has said openness should be the default position, he added.

As in many other states noted by State Integrity Investigation, Wyoming lawmakers have given themselves more exemptions than the governmental entities under their jurisdiction, such as city councils and school boards.

In 2006, the Republican-dominated Wyoming Legislature overrode a veto by Democratic Gov. Dave Freudenthal, exempting themselves from much of the open records law. Draft legislation is secret, as is communication with staff and constituents about a proposed law until a lawmaker files the bill for introduction.

Along with exemptions, Wyoming has seen a debate in recent years about the existence of a “deliberative-process exemption.” A deliberative-process exemption to open records requests denies public scrutiny of materials that elected officials use in decision-making, according to open records advocates.  Wyoming lawmakers who supported the exemption during this winter’s session argued, though, that it allows for candid opinions and more information. They said that they need to hear the opinions and the real-life stories of their constituents. Fear of public ridicule will deny their constituents that opportunity.

The exemption is also intended to protect the internal thought processes and notes of public officials from public scrutiny, as well, but the parameters for documents that are secret and those that are open are still being defined. And whether a deliberative process already exists within the existing law could still be decided by the Wyoming Supreme Court.

In 2009, Freudenthal tried to use the “deliberative-process exemption” as a reason to withhold department budget-cut proposals from the Cheyenne-based Wyoming Tribune Eagle newspaper. In 2010, the state Supreme Court ruled that Freudenthal had to turn over the documents. The nature of the budget documents made them open records whether the exemption exists or not, the court said. By doing so, the court tossed the issue back to the Legislature for a decision, but also left open the possibility that it may revisit the issue in another case. That decision led to two years of vigorous debate.

This year the Wyoming Legislature passed, and the governor signed, a pair of bills to clarify the Wyoming Open Records Act of 2003.  The additions to the law represent a compromise between the Wyoming Association of Municipalities, representing local governments, and the Wyoming Press Association, representing the press. But it did not come easily and the discussion may not be over. There are still some questions about exemptions and the question of a deliberative-process exemption.

The Wyoming Association of Municipalities lobbied this winter primarily for the Legislature to bring more clarity in the law, said Mark Harris. An Evanston-based attorney, Harris is the Legislative Director and General Counsel for the Wyoming Association of Municipalities (WAM). Harris said the 99 municipalities that WAM represents are not seeking to protect politicians. Association members sought to clarify several areas, Harris said, including whether a deliberative-process exemption exists in Wyoming. Their questions also included whether an e-mail conversation between less than a quorum of a board is exempt from open records laws, as is a verbal conversation between less than a quorum, he said.

Harris said that association members will discuss their legislative agenda for next winter’s session at the annual convention June 13-16 in Laramie. Whether that will include open-records and open-meetings legislation is undetermined, he said.

The deliberative-process exemption may not be dead in Wyoming, said Jim Angell, “but it was dealt a pretty crippling blow by the state Senate in the last session.” Angell is the executive director of the Wyoming Press Association. This winter, the Legislature had its third opportunity to pass a deliberative process exemption, but it died in the Senate. “Which tells me,” Angell said, “that they are not willing to go that far.”

Angell said that the legislation passed this year improved the public’s access to records and meetings. The legislation clarified the definition of public meetings to explicitly include electronic communications by public officials. An eight-hour notice is now required for special meetings. If a requested document is readily available, the law now requires that it be released immediately. It now also requires officials to respond within seven days to a document request.

Public bodies going into executive sessions must now cite the part of the state statute that allows them to meet in private.

While Angell believes that a serious blow has been dealt to legislative efforts to explicitly create a deliberative-process exemption, he and Moats said open records advocates cannot be apathetic, particularly on the potential for recognition of a deliberative-process exemption.

“That is the loophole that threatens to swallow the process,” Moats said.

Bill McCarthy is a freelance journalist based in Cheyenne.

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