Deliberative process exemption-Alaska

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A deliberative process exemption to open records requests is one that shields from public scrutiny that papers and materials that elected officials use in the course of reaching a decision. There are two clear arguments for this exemption. The first argument for the exemption centers on the notion that public officials should be able to conceal much of the thought process behind making a decision in order to protect the free flow of opinions and information. The courts and legislatures have traditionally argued that without the exemption in place, the ability of public officials to receive opinions from their constituents would be hampered. In addition, the exemption is in place to protect the internal thought processes and notes of public officials from public scrutiny, as predecisional material is typically considered work product and is thus exempt. Various states approach this exemption differently, with some enforcing a broad definition while others reject it outright.

In 1986, in the case of Doe v. Superior Court, the Alaskan Supreme Court ruled that there is a limited "executive" or "deliberative process" privilege in the Alaska Public Records Act that protects communications between the governor and his or her aides about policy matters. This decision related to internal communications about advice, opinions and recommendations. The decision was justified using the separation of powers argument.

In 2000, Gwich'in Steering Committee v. Office of the Governor modified the justification of the deliberative process exemption. The court said the privilege is intended to "protect the mental processes of governmental decisionmakers from interference." .[1]

In 2003, in Fuller v. City of Homer, the court extended the deliberative process to municipalities, given that they met the appropriate requirements. However, the court said that the City of Homer was wrong to claim that it could withhold access to staff documents under the "deliberative processes privilege" as it failed the balancing test established in City of Kenai v. Kenai Peninsula Newspapers.[2]


The Alaska Public Records Act does not mention the deliberative process exemption.


See also