Government & Politics
 

Jindal administration invoking 2009 law to shield public records

Gov. Bobby Jindal took office in 2008 promising the most transparent administration in Louisiana history, and he quickly began to deliver. He got the state Legislature to approve one measure that requires elected and appointed officials to disclose their personal finances and another that provides greater public disclosure of government contracts.

But over the past year, while taking the initial steps for an apparently relentless  presidential campaign, Jindal has become increasingly unavailable to Louisiana reporters, refuses to disclose in advance when he travels out of state and declines to identify who provides the private aircraft he flies on.

Add another layer of secrecy: His senior aides and appointed officials are now refusing to turn over potentially controversial public records by citing a 2009 public records law that the Legislature approved at the governor’s behest.

In doing so, Jindal may be provoking a fight. Legislators and the press are beginning to consider ways to push back, though it is unclear whether they can muster enough resolve to challenge a powerful governor.

The Jindal administration sold the 2009 measure to legislators as a way to subject even the governor’s office to public records rules from which it had long been immune. Instead, Jindal aides and appointees have been using it as a shroud to drape over a variety of executive-branch agencies by claiming that the requested record is part of policy debate and deliberation and thus off limits for at least six months. Some legislators are accusing Jindal of using the law as a subterfuge to avoid public scrutiny.

In the past few months, controversy has swirled around decisions by the state Department of Education and the LSU Board of Supervisors to invoke “deliberative process” in rejecting requests for public records involving politically charged issues. The Department of Transportation and Development did the same thing to a private contractor over a northwest Louisiana highway project but produced the records after the contractor filed suit.

“My biggest concern is that it has expanded far beyond what everybody was told it would do,” said state Sen. Robert Adley, R-Benton, who wants the Legislature to review and restrict the law. “People are beginning to see more of a problem.”

State Rep. Jerome “Dee” Richard, an independent from Thibodaux, said he wants to try again with a measure, kept from a vote last year, that would eliminate the “deliberative process” shield.

It is not yet clear if Adley, Richard and other critics of the law can count on the support of the Louisiana Press Association – traditionally among the state’s strongest foes of government secrecy, but weakened as a political force because of the newspaper industry’s economic decline.

The association now acknowledges misgivings about its decision to support the 2009 measure. But its leaders haven’t decided whether they will join legislators or, alternatively, go to court in an active campaign to make the Jindal administration more accountable.

The 2009 measure with which Jindal has buttressed his latest efforts to avoid or delay access to public records was Senate Bill 278. A review of testimony before Senate and House committees shows that Jimmy Faircloth, then the governor’s executive counsel, dismissed fears that the bill would be used to stymie public scrutiny of state government.

At the time, Louisiana law exempted the governor’s office from providing records sought by reporters and citizens, but the public did have access to government records generated by cabinet agencies and state boards.

Faircloth testified that the proposed measure would, for the first time, give the public a peek into the inner workings of the governor’s office, shielding only those documents generated as he made up mind – i.e. “deliberated” – over a policy matter.

The law was needed to protect the governor’s office in a narrow range of instances, Faircloth said, specifying that it was aimed only at documents involved in preparation of the governor’s budget.

“We made it clear to the press association that our only concern was the advice and concern regarding the budget,” Faircloth told the House and Governmental Affairs Committee on June 16, 2009.

“Those in other agencies are not covered,” Faircloth said several minutes later. “It does not cover those in any other executive agency.”

He went on to say that by shielding only budget matters, “we don’t protect the deliberative process of the governor on all other subject matters where he is getting advice from his appointed folks. We don’t think that’s what’s very important about this legislation.”

Testifying a month earlier – on May 6, 2009 – at the Senate and Governmental Affairs Committee, Faircloth said: “So how anyone can say that this doesn’t open up access to the governor’s office, I’m at a loss. This does open it up.”

At that same hearing, Sen. Jody Amedee, R-Gonzalez, explained why he was sponsoring the legislation. Withholding records about official deliberations, Amedee said, “fosters a creative debate between the staff members. If I’m on the staff, and every time I say something and it might be used against me, well then I may not be willing to say a lot. … It protects the public – this is not coming from me; this is coming from some cases that we found – it protects the public from being confused. If you get exposed to all kind of premature ideas and thoughts, you know, they’re going to be confused. … Public officials should be judged by their decisions, not by their decision-making process.”

The Senate approved the bill, 28-8. The House approved it, 62-41.

In approving the measure, House members took the unusual step of rebuking their leader, Speaker Jim Tucker, R-Algiers, by rejecting his amendment to give the governor no greater rights to withhold documents than legislators had. Tucker’s defeat not only showed Jindal’s political muscle but also the importance to the governor of shielding his decision-making from public review.

Carl Redman, executive editor of The Advocate, vigorously opposed the bill before the Senate and House committees, to no avail.

“We think this will put an awful lot of stuff off-limits that we think probably is accessible to us,” Redman told the House committee.

“It’s even worse than what I warned about,” Redman said in a recent interview. “They never sold it as a sweeping deliberative process. The ultimate impact of the bill is very insidious. They were very devious, sly and crafty.”

Reached via email, Faircloth said his 2009 testimony “accurately reflects my comments on the concept of deliberative process.” He is now a private attorney who handles legal disputes for the Jindal administration, among other clients.

Shannon Bates, Jindal’s press secretary, offered this defense via email:

The deliberative-process protection has been in place a long time and has applied to agencies long before we entered office. It’s a protection that the courts have recognized. It exists for the Legislature and the judiciary. We did not create it. This protection encourages the free flow of ideas and innovation. It encourages thoughtful analysis from the folks who the people of Louisiana entrust to come up with good ideas and good policy.

The recent cases that have provoked the biggest complaints have involved the Department of Education and the LSU Board of Supervisors.

In the Department of Education case, DOE Superintendent John White refused to supply records sought by The News-Star in Monroe regarding how he and his aides chose which schools qualified for state dollars under the new voucher program. DOE ultimately provided the documents after the News-Star filed a lawsuit. (The paper then dropped the suit.)

In the LSU case, Tom Aswell, who writes a blog called The Louisiana Voice, sought records related to the LSU board’s decision to cut health care spending and privatize its hospitals. Shelby McKenzie, an outside attorney hired by LSU, said in a letter to the LSU System president that Jindal’s executive counsel, Liz Murrill, advised him that they should invoke “deliberative process” in order to deny Aswell the records he sought.

McKenzie’s letter was leaked to The Advocate. The newspaper, in disclosing the letter’s contents, noted that Kyle Plotkin, Jindal’s director of communications, had said the administration had played no role in LSU’s decision, a statement belied by McKenzie’s letter. (Plotkin said his comment was a “miscommunication,” not a deliberate misstatement.)

Jean Armstrong, president of the League of Women Voters’ Baton Rouge chapter, testified against the Amedee bill in 2009 and wondered whether Jindal’s apparent presidential ambitions are behind the law.

“His approach to making it so secretive worries me,” Armstrong said in an interview. “Why would he want this if he ran on transparency and ethics? He wants to be president. That is blatantly clear to everyone.”

Said state Rep. Sam Jones, D-Franklin: “I can’t think of any other reason for him to be so secretive other than his future presidential aspirations. You don’t want your closet to be wide open.”

The Public Affairs Research Council, a nonpartisan think tank based in Baton Rouge, opposed the 2009 measure and now voices dismay about how Jindal and his appointees are using it. Another Baton Rouge nonpartisan group, the Council for a Better Louisiana, supported the 2009 law, but has joined those worried that state government is becoming less transparent.

The Reporters Committee for Freedom of the Press, a Virginia-based nonprofit, is also concerned about how Jindal and his appointees are interpreting the law, said Mark Caramanica, the group’s Freedom of Information director.

Sen. Amedee, who said he sponsored the bill at the Jindal administration’s request, said with the Legislature out of session, he hasn’t followed the recent controversy over his law.

“If they’re misusing it, I would think at some point, someone would bring them to court,” he said. “We make laws. We don’t enforce them.”

Sen. Adley, who opposed the 2009 bill, said he wants to work with the Jindal administration to restrict the law. Getting Jindal’s support is the only way to overcome a veto, he noted.

Adley will play an important role because he supported the Jindal administration’s initiatives on a range of issues in 2012 after frequently opposing the governor in previous years. That gives him some stroke with the administration in the upcoming legislative session.

But is there any real chance Jindal will reverse course and agree to repeal or revise a measure that his administration has used successfully to shield itself from the public?

Adley says yes. The governor, he said, could be convinced that doing so would burnish his national reputation. “He could be thinking, ‘When I came into office, the state was ranked last in transparency,’” Adley said. “He must want to change that. He must want to have a new ranking that will show us in a better light.”

That may be the only hope for getting the governor’s support. (Bates did not respond to a question via email about whether Jindal would support limiting his shield.)

Jindal and his legislative allies have defeated previous attempts by Adley and others to open up his records.

Rep. Richard said he sponsored a measure in 2012 that would have reversed the 2009 law. Jindal and his supporters bottled it up. Rep. Tim Burns, R-Mandeville, who chaired the House and Governmental Affairs Committee, refused to give it a hearing. (Burns said his committee would have heard the bill had Richard really wanted it to.)

The role of the Louisiana Press Association also will be key. The group represents newspaper publishers – with input from their editors — and can take a position even if the support is not unanimous.

The Advocate, The Monroe News-Star and The Times-Picayune all opposed the 2009 law for fear that it would hide too many records.

State Rep. Tony Ligi, R-Metairie, who handled the bill in the House, said in an interview that he did so because it had the press association’s support. A review of the House debate shows that Ligi repeatedly invoked the group’s backing in asking his colleagues to support the measure.

Pamela Mitchell, the press association’s executive director, said in an interview that the group supported it to give greater clarity to the often convoluted public records law.

But Kathy Spurlock, The News-Star’s editor, said the real reason was the group’s fear that if it opposed Jindal, he might try to get the Legislature to yank an important revenue source, the legal notices that government agencies are required to print in certain publications—typically newspapers.

Sheriffs, courts, city councils and police juries are among government agencies that have to publish public notices of their business in “official journals,” a revenue stream worth an aggregate $6 million to $8 million a year to the state’s newspapers, Mitchell estimated.

With newspapers increasingly publishing online, some people believe that the notices should be published on government websites, at no cost to taxpayers.

Industry support for the 2009 “deliberative process” law was “a business decision to keep the legal notices,” Spurlock said bluntly. “For a lot of small newspapers, legal notices are a key component of their revenue. There are always business issues that go along with freedom-of-the-press issues.”

Mitchell and Johnny Koch, the press association’s Baton Rouge lobbyist, acknowledged that legal notices were a factor in its support for SB 278, but said they weren’t the main reason.

Mitchell and Koch said the press association’s members haven’t decided yet how hard they’ll push to restrict the 2009 law.

Lawmakers and editors told The Lens that they expect that courts would limit or overturn the 2009 law, but no one so far has offered to assume a lawsuit’s cost.

“The economics of newspapers today does not support the filing of lawsuits,” Koch said, a reference to plunging circulation and advertising revenues. “Ultimately, we need a Louisiana Supreme Court decision to resolve this matter.”

Update: Jimmy Faircloth’s comment regarding his 2009 testimony was added after this story was published.

Correction: The original version of this story misstated Sen. Robert Adley’s residence. The error has been corrected.

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  • Bobby j

    Cam you share the name of the contractor for DOTD referenced earlier? What court was that in?

  • Tyler Bridges

    Willis-Knighton Health System filed a writ of mandamus in the 19th JDC in East Baton Rouge Parish