Ain’t No Sunshine: Deliberative Process

Mar 17, 2015

This is “Sunshine Week”, with media organizations and civic groups across the nation working to educate the public on governmental access.

Here in Louisiana, the House Appropriations Committee starts working through the proposed budget this morning, yet the budget bill, HB 1, didn’t appear on the legislative website till 4 p.m. yesterday. Meanwhile, the Associated Press asked state agencies for public records regarding worst-case scenarios for the $1.6-billion budget shortfall. AP was told no.

One reason? “Deliberative process.”

“That ‘deliberative process’, which applies only to the governor and only to his office, has been widely used by all the other state agencies,” says The Advocate’s Capitol Bureau chief, Mark Ballard.

The newspaper has run afoul of a 2009 addition to Louisiana’s public records law numerous times. 2009’s SB 278 was intended to provide more access to the governor’s records, which had traditionally been completely closed to public scrutiny. Instead, its exemption for the “deliberative process” of the governor has become an excuse for most state agencies not to comply with public records requests.

“The state’s public records law, R.S. 44:1-44, says the records have to be immediately turned over, if they’re not in use,” Ballard explains. “And if they’re in use, you have three days to either turn over the records or explain why not.”

That’s the law, but Ballard says the actual practice of state agencies is something quite different.

“The first thing that they’ll do is wait three days before they respond. And then they respond by saying, ‘Well, I need ten more days to take a look and see what it is.’ And then they’re raise this fuzzy exemption,” Ballard says, with more than a bit of dissatisfaction.

Usually, he says, the exemption cited is “deliberative process”, whether the request is made to the Department of Education, or the Department of Wildlife and Fisheries. And the only recourse allowed by law is to file a lawsuit — within five days.

“They’re almost daring you to sue them,” Ballard says. “And there are very few news organizations these days that have the wherewithal to actually file that lawsuit.”

With respect to the budget, House Appropriations chairman Jim Fannin doesn’t see any problem in officially filing HB 1 less than 24 hours before hearings on it are to begin.

“Anyone could access the details by looking up the executive budget on the Division of Administration’s website,” Fannin said by phone. “It’s been there for the past three weeks.”