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

AuthorKevin M. Blanchard
Pages703-747
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 assessmentsjust 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 SenateRobert 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.

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