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February 28, 2012 9:00 am

Senate backs off proposal to limit public records

Written by CJ Baker

The Wyoming Senate has dropped a proposal to limit the public’s ability to access some government records and emails.

The Senate on Wednesday rejected some proposed new restrictions on public records and passed a bill, Senate File 25, that would modernize Wyoming’s public records law.

As introduced and passed, the primary change to the state’s public records law would be a requirement that governments respond to requests for records within seven days. The entity wouldn’t have to provide the records within seven days, but would have to tell the person requesting the information if the records are available and give an estimate of how long it will take to compile the information. The bill would also modernize the definition of what qualifies as a “record” to specifically incorporate electronic documents and data.

Information currently confidential under state law — such as information about personnel, medical records or building security — would stay that way under the bill, which was drafted by a working group of several government and public interest organizations.

Sen. Bruce Burns, R-Sheridan, had added an amendment — approved by a voice vote last Monday, affirmed Tuesday, then removed Wednesday — that would have blocked public access to “pre-decisional” records and recommendations used by public officials, such as projections and opinions from government staff. The amendment also would have specified that communications sent to fewer than a majority or quorum of the members of a public body wouldn’t be released to the public.

“A lot of people, a lot of common citizens out there, will communicate candidly, fairly confidential information with their elected officials, someone that they trust,” Burns had said. If that information was public, citizens and experts in private industry would be less likely to share that information with government, he said.

Sen. Chris Rothfuss, D-Laramie, said he was concerned about infringing on privacy rights of citizens who want to weigh in.

The information is generally considered public now.

Sen. Larry Hicks, R-Baggs, noted that the U.S. Forest Service and Bureau of Land Management can keep pre-decisional information and meetings from the public when working on land management plans in an effort to promote candid conversations.

“I would say in the context of pre-decisional, if it’s good enough for the feds to protect that information and those discussions that take place, it ought to be good enough for the state of Wyoming,” said Hicks.

Park County commissioners and other local governments have blasted BLM officials for having closed-door pre-decisional meetings and information while working on a new draft Resource Management Plan for the Big Horn Basin; they have also praised Shoshone National Forest officials for making their meetings open on a new forest plan.

Sen. Kit Jennings, R-Casper, said allowing preliminary information to be public was effectively letting the press tell government officials what to think and do.

“I know one guy that put up a gun bill and got called an idiot in the press after the bill was already formed,” said Jennings on Monday, Feb. 20. “Just think what would happen if all that information on putting that bill together was available.”

However, the Senate, after a motion from Sen. Curt Meier, R-LaGrange, on Wednesday, later voted to make the information public. Meier said Burns’ amendment went “a little bit farther than we needed to.”

“This is about restoring faith or having our public have faith in our local entities and open government,” said Sen. Tony Ross, R-Cheyenne, advocating for the removal of the amendment.

“This is all about openness. It’s all about making sure that the public knows what’s going on,” Ross said.

Criticism from the press, he added, “is part and parcel of the place we find ourselves in.”

Sen. Leland Christensen, R-Alta, had previously said that the public needed access to documents like land planning and zoning decisions.

“That is important information for the public to have access to — so that when they come to those final meetings, they have the same information in front of them and they are able to make appropriate comments and input based on what’s being considered, as opposed to they’re working off yesterday’s newspaper,” he said on Monday, Feb. 20.

On Wednesday, Christensen cited the example of a citizen walking into a meeting and watching a government board vote on something without any discussion.

Having predecisional information public is “removing that curtain and the shadow of doubt,” he said.

Last year, as the bill was being put together, the Legislature’s Joint Judiciary Interim Committee had similarly proposed putting pre-decisional information and some correspondence off-limits, then rejected those changes and defaulted to the compromise language adopted by the working group.

One member of the working group, Wyoming County Commissioners Association Executive Director Cindy DeLancey, said last month that the group’s compromise was “fragile.”

“It’d be nice to have all these privileges, I’m sure there’s no one in this room that would disagree,” DeLancey told Big Horn Basin commissioners and legislators in reference to making pre-decisional information and one-on-one communications non-public.

Washakie County Commissioner Ron Harvey agreed that he would prefer those items be in the final bill, but he joined Delancey in cautioning legislators against changing the bills as proposed.

On the Senate floor last week, Sen. Ogden Driskill, R-Torrington, noted the work that had gone into the compromise.

“Now we’ve decided in our infinite wisdom that we’re going to change what everybody spent a lot of time putting together,” Driskill said.

Local lawmakers comment on public records

At last month’s meeting in Cody, State Rep. Sam Krone, a former Cody city councilman and a current deputy Park County attorney and judiciary committee member, said that he believes pre-decisional information should not be public and that having it public is “very onerous” for governments. As one example of such information, he cited lists of things a governmental body is considering spending money on — such as specific bridges or state consensus funding projects.

“If that pre-decisional thought process in the form of emails or letters becomes public record, it really could stymie the process of being able to talk freely and openly,” Krone said.

Park County Commissioner Dave Burke had a different take.

“We really don’t have pre-decisional information,” Burke said of the county. “We’re either public or we’re executive (session) so I’m not sure where the issue is ... I’m not sure of any information we have right now that the public can’t have.”

Speaking at a panel discussion at Wyoming Press Association’s winter convention on Jan. 21, Cheyenne attorney Bruce Moats had called a deliberative process exemption “a very dangerous concept.”

“What kind of advice do people really want to hide?” Moats asked, answering that people generally want to hide advice when it’s biased or embarrassing.

The city of Powell is a member of the Wyoming Association Municipalities, which previously lobbied for making pre-decisional records and certain communications private. However, Powell Mayor Scott Mangold said he supports having emails and pre-council information public.

“If my computer, my Internet network, this office space, the heat that’s put into this office space, I think that if that’s all paid by taxpayers, that should allow anybody in the public to come and take a look at it,” Mangold said in a recent interview.

The mayor said he wants it to be easy for people to come in and learn how their government works.

“I want to make sure that it’s accessible, and that we can give it to them, and I don’t think there should be anything hidden inside of City Hall,” he said.

A separate bill proposed by the working group and endorsed by the judiciary committee, Senate File 27, would change Wyoming’s open meetings law. It would ban meetings by email and require officials to give the media at least eight hours’ notice before holding a special meeting; emergency meetings could continue to be held without notice to take temporary action.

At the Big Horn Basin meeting last month, Rep. Mike Greear, R-Worland, asked whether the state was better off with or without the new bills. DeLancey said as proposed, Wyoming’s counties support them.

“Are they perfect? No, but they do provide some more clarity and certainty than we have now,” she said.

Newspaper officials expressed a similar view at the press convention.

Harvey said there was a need for governments and also the media to be trained on what makes an open meeting — calling the training from the bill “perhaps the key point.”

Harvey referred indirectly to an April 2011 incident where Gov. Matt Mead’s office decided to call a closed door meeting in Cody with the full Park County commission, local legislators and sportsmen about a proposed wolf management plan for the state.

The Cody Enterprise, which was denied access to the meeting, wrote a story examining whether it was legal for the governor’s office to close the meeting and whether it was right to do so.

Harvey said the issue shouldn’t have come up.

“Someone in the press was misinformed or misunderstood the ruling (the law),” he said.

The Enterprise reported that the meeting was legal (because Mead’s office, and not the county commission, called the gathering), but also quoted Moats as saying the closed-door meeting seemed to push the envelope of the law.

“If it doesn’t violate the letter of the law, (commissioners’ presence at the meeting) certainly is chewing away at the spirit of it,” Moats said in the April 12 article.

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