From Sunshine to Moonshine: How the Louisiana Legislature Hid the Governor?s Records in the Name of Transparency

• Author: Kevin M. Blanchard
• Pages: 703-747

From Sunshine to Moonshine: How the Louisiana

Legislature Hid the Governor’s Records in the Name

of Transparency

TABLE OF CONTENTS

I. Introduction ..........................................................................703

II. The Public’s Right to Access in the Federal Context: FOIA,

Exemption 5 and the Deliberative Process Privilege ...........708

A. The Constitutional Right to Know: “A River Without

Water”. ...........................................................................708

B. Statutory Solutions to the Right of Public Access to

Information ....................................................................710

C. FOIA Exemption 5’s Deliberative Process Protection ..711

D. Procedural Requirements Under FOIA ..........................714

III. Louisiana’s Public Records Law and Its Special

Treatment of the Governor ...................................................715

IV. Possible Interpretations and Amendments to Act 495:

How to Turn Moonshine Back into Sunshine ......................718

A. The Deliberative Process Privilege in Louisiana ...........719

B. The New Budgetary Privilege: Shutting the Old

“Back Door” ...................................................................728

C. The Intra-Office Exemption—the Old Blanket

Exemption in Disguise ...................................................732

D. Louisiana Courts Should Require a Vaughn-Like

Index…. .........................................................................735

E. The Legislature Should Open Up the Governor’s

Past Schedule to Scrutiny ...............................................738

F. The Governor Must Archive All Records ......................741

V. Conclusion ...........................................................................746

I. INTRODUCTION

Government records fill up boxes, filing cabinets, and hard

drives across Louisiana. They are the evidence, the breadcrumbs,

the snail slime trails that show where government has been and in

what direction it is heading. Most seem innocuous enough—forms,

license applications, or property tax assessments—just a narrow

slice of the government decision-making process that fuels the

routine paper-pushing of a bureaucracy. But all public records are

704 LOUISIANA LAW REVIEW [Vol. 71

not created equal. The higher up the bureaucratic food chain it was

generated, the more likely that a public record will involve a

decision that has real-life ramifications for a wider audience. A

neighbor’s property tax assessment is small beans. A proposal to

raise the homestead exemption for all Louisiana property owners is

a big deal.

People paid attention, then, when Governor Bobby Jindal

proposed legislation in 2009 to rework the way public records law

applies to the governor’s office. Of the mountains of public records

in this state, the governor’s have some of the highest value. A

governor is elected, in large part, to make decisions that affect the

entire state. Governor Jindal swept into office in 2008 on a wave of

voter dissatisfaction over perceived government mismanagement

during Hurricanes Katrina and Rita.1 He declared a “war on

corruption and incompetence in government”;2 then, in his first

year of office, he fought and won an entrenched battle with the

Louisiana Legislature over changes to the state’s ethics rules. 3

In 2009, Governor Jindal turned his attention to the availability

of public records in his own office.4 The governor’s

representatives touted the measure as a “transformational” move

toward greater transparency in government.5 The opposition

thought differently, to put it mildly. Critics described the

Copyright 2011, by KEVIN M. BLANCHARD.

1. Adam Nossiter, An Improbable Favorite Emerges in Cajun Country,

N.Y. TIMES, Oct. 19, 2007, at 17A, available at http://www.nytimes.com/2007/

10/19/us/19louisiana.html.

2. Bobby Jindal, Governor Jindal’s Inaugural Address, OFF. OF THE

GOVERNOR (Jan. 14, 2008), http://gov.louisiana.gov/index.cfm?articleID=24&

md=newsroom&tmp=detail.

3. Robert Travis Scott, Watchdog Seeks Reversal of Change in Ethics Law;

Standard of Proof for Violations at Issue, TIMES-PICAYUNE (New Orleans, La.),

May 1, 2008, at 4A, available at http://www.nola.com/news/t-p/capital/index.

ssf?/base/news-6/1209620079213470.xml&coll=1. The politically charged fight

over those ethics rules overshadowed a slight change to the public records law in

2008. At Jindal’s urging, the legislature disallowed those agencies under the

governor’s office from being able to claim the governor’s blanket exemption

from public records law. Act No. 765, § 3, 2008 La. Acts 2925, 2926 (“The

provisions of this Section shall not apply to any agency transferred or placed

within the office of the governor.”).

4. Hearing on SB 278 Before the Senate and Gov. Affairs Comm., 2009

Reg. Sess. (La. May 6, 2009) [hereinafter Senate Hearing], available at

http://senate.legis.state.la.us/Video/default.asp; see also Public Records in the

Office of the Governor (2009) (PowerPoint presentation by the Governor’s

Office, on file with the author and available from the Senate and Governmental

Affairs Committee) (describing the measure as the governor’s proposal).

5. Ed Anderso n, Jindal Vetoes Bill to Create a ‘Homeless Czar’; Governor

Concerned by Effect on Budget, TIM ES-PICAYUNE (New Orleans, La.), July 8,

2009, at 2A.

2011] COMMENT 705

governor’s rhetoric as Orwellian6 and called the bill “a devastating

blow to open government.”7 Newspaper editorials described the

bill as “ill-considered and dangerous”8 and wondered what the

governor “has to hide.”9 One legislator, state Senator Robert

Adley, Jindal’s fellow Republican,10 said the bill would result in

Louisiana being more closed than a Communist state like Cuba.11

The bill, Adley said, would “take the state of Louisiana from

sunshine to moonshine.”12

Governor Jindal and his legislative allies prevailed over the

heated rhetoric.13 On the surface, the resulting language of Act 495

amends Louisiana Revised Statutes section 44:5 in a truly

6. James Gill, Op-Ed., Doublespeak, with a Louisiana Accent, TIMES-

PICAYUNE (New Orleans, La.), July 22, 2009, at 7B, available at

http://blog.nola.com/jamesgill/2009/07/james_gill_in_gov_bobby_jindal.html

(“Our current administration has evidently been inspired by the Ministry of

Truth to turn words on their heads and bamboozle the masses. In ‘1984,’ War is

Peace, Freedom is Slavery, and Ignorance is Strength. In Baton Rouge today,

Secrecy is Transparency . . . . Only a few legislators protest at the brainwashing

of the proles.”).

7. PAR Says Public Records Bill Would Stifle Open Government, PUB.

AFF. RES. COUNCIL OF LA. (June 17, 2009), http://www.la-par.org/article.cfm?id

=268&cateid=2.

8. Editorial, ADVOCATE (Baton Rouge, La.), June 18, 2009, at 8B.

9. Editorial, ADVOCATE (Baton Rouge, La.), June 26, 2009, at 8B.

10. Adley is a Republican from Benton, La. who served as the Vice-

Chairman of the Senate Revenue & Fiscal Affairs Committee. See Louisiana

State Senate—Robert Adley, LA. ST. SENATE, http://senate.legis.state.la.us/

Adley/ (last visited Dec. 13, 2010).

11. Mark Ballard, Op-Ed., Open Should Mean Open, ADVOCATE (Baton

Rouge, La.), May 10, 2009, at 7B, available at http://www.2theadvocate.com/

blogs/politicsblog/44643182.html (quoting state Senator Robert Adley: “He’s

making horrible arguments and the Legislature, because of all the lobbying he’s

doing, is swallowing the whole thing. . . . Transparency is gone. Checks and

balances are gone. I’m beginning to believe I’m sitting in a communist state.”);

Marsha Shuler, Governor’s Office Records Access Bill Gets Final Approval,

ADVOCATE (Baton Rouge, La.), June 25, 2009, at 6A, available at http://www.

2theadvocate.com/news/49054976.html.

12. Shuler, supra note 11. Adley was part of a group of state legislators,

including Representative Wayne Waddell, a Republican from Shreveport, who

championed competing legislation.

13. In 2010, legislators attempted to heavily amend Louisiana Revised

Statutes section 44:5, but the attempt died. Bill Barrow, Governor’s Office

Records Bill Advances over Bobby Jindal’s Objection, TIMES-PICAYUNE (N ew

Orleans, La.), May 26, 2010, available at http://www.nola.com/politics/index.

ssf/2010/05/senate_committee_approves_gove.html. Another bill requiring the

governor to disclose records from his office dealing with the BP oil spill passed

the Louisiana Legislature but did not survive a veto from Governor Bobby

Jindal. Mark Ballard, Jindal Vetoes Bill Opening Oil Leak Records, ADVOCATE

(Baton Rouge, La.), June 26, 2010, at 6A, available at http://www.2theadvocate.

com/news/97210804.html.