You have to look at the executive branch and the legislative branch separately. Executive branch has gotten “worse and worse and worse” since he started out. Each administration has learned from the previous administration how to keep things secret. “Certainly, the Palin administration is the worst we’ve ever seen.” He’s said the same about the Murkowski and Knowles administrations. On the other hand, the legislative branch has become much more open and transparent. They still do go behind closed doors, but it happens less frequently. “By and large, the direction of change in the Legislature has been better.” Maybe they have less to hide, or maybe they are less concerned about public criticism. Electronic bill tracking has made things easier to follow; “people are on the record a lot, lot more than they used to be.” You don’t have to be a journalist to ferret things out. Our public records laws are not ideal; Rep. Mike Doogan has sponsored legislation this session that may improve them.
John McKay, attorney
The Palin candidacy shed some light on our public records laws. The most significant change in terms of public records access in the last 10 years has been the change in the public interest attorney rule. We are the only state in the union that penalizes citizens for seeking records, unless it turns out that you’re right. “It’s a tremendous disincentive.” Deliberative process privilege is asserted more and more; for example, it was asserted in regard to the Todd Palin memos during the election. A few years ago, there was a woman appointed to a state commission, and another commissioner happened to have a job as the head of the Republican party. He was using state time to do party business, and the woman became upset because she wasn’t able to blow the whistle on the other commissioner because it was the subject of an ethics investigation. The woman felt muzzled. She was being told that because it was being pursued as an ethics violation, she couldn’t speak publicly about it, but she did finally talk to some reporters. Eventually the ADN filed a lawsuit requesting the public records. The woman, of course, was Commissioner Sarah Palin. Palin talked a lot about openness and transparency during her campaign. We need to appeal to people’s better natures and attempt to enlist them as allies; remind them that they once espoused the idea of open and transparent government.
Jason Moore, KTUU
Moore has been covering Governor Palin since she was mayor of Wasilla, and what he’s seen is the change in Palin over the last six months. He thinks there was a genuine sense during her first two years in office that she was more open, although he attributes that in some ways to the “love affair” the media had with her at first; she was a “breath of fresh air” after Murkowski. He saw that change dramatically once she became a national candidate. She came back and it’s been drastically different; she now has a press office that is as hostile as he’s ever seen. E-mails are “over-the-top” with complaints about how the administration is covered. Before the Republican National Convention, reporters could knock on Palin’s door and talk to her; now it’s “nearly impossible” to get a straight answer.
When Palin came into office, she told ABR she couldn’t understand why Alaska Budget Report was so “crosswise” with the government over public records; she seemed to want to be more open. Two weeks later, ABR submitted a request for transition reports from the Murkowski administration that they knew had been shared outside the executive branch, which should have meant deliberative process did not reply. The request was denied. They were later told they could see the reports, but not make copies or take notes because they would “confuse the public” about what the administration had in mind. The document on top was a memo from the attorney general’s office that indicated that the documents had been redacted as fully as possible. Ultimately, ABR managed to get the documents released. The problem, it turned out, was that perhaps the Department of Law had been “a little too candid” about some of the failures of the Murkowski administration. If you go to court to try to make public records public and you lose, you are on the hook to reimburse the Department of Law. It has “a tremendous chilling effect” on public records requests. You can’t convince a publisher to be on the hook for tens of thousands of dollars.
What records become state property? Ruedrich blurred the line between personal and public. Recently an Attorney General opinion ruled that personal electronic devices (such as BlackBerries) aren’t necessarily personal if they’re being used to do state business. That doesn’t necessarily mean the state will give e-mails up easily. Bill Dedman of MSNBC wrote an article about the State of Alaska’s attempt to charge him $15 million each for three different requests for state e-mails.
Asked about the status of requests for Gov. Palin’s e-mails, McKay said he doesn’t know of any pending litigation. Andree McLeod, who is not a journalist, has filed some requests, but will she take the financial risk of pursuing them? He’s not sure. Just because Todd Palin was copied on an e-mail does not necessarily mean that deliberative process privilege is not legitimate. Deliberative process is not the end of the road; if the citizen can prove the interest of the people outweighs the interest of the government, the privilege can be revoked. Remember that Gov. Palin ran as a reformer, and that’s how she views herself. Hold her to that.
— Maia Nolan