So-called deliberative process privilege is an affront to democracy

Trust me.

That’s pretty much what a district court judge told the Reno Gazette-Journal when he turned down the newspaper’s public records request for Gov. Jim Gibbons’ e-mails.

Judge James Russell said only six of 104 e-mails examined behind closed doors were public records and gave the governor 10 days to appeal that ruling before allowing the release of that half dozen e-mails.

Judge Russell refused to give the paper a log of the e-mails so it could argue for openness. A court master reviewed the e-mails and found 24 e-mails to be personal correspondence, 32 "transitory" e-mails describing "routine business activities" and 42 either transitory or protected by the deliberative process privilege.

Deliberative process privilege?

This is something, so for as I can find, that was hatched in a Colorado case years ago and has been tossed about by lawyers ever since. Why is the deliberative process secret? In fact that is how citizens and taxpayers can see whether their interests are being served. If they get only the outcome, there is no way to tell why a decision is made.

In fact, the Nevada open meeting law, which like the public records law demands the public be given access to government deeds and misdeeds, states flatly, “In enacting this chapter, the Legislature finds and declares that all public bodies exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.”

So where is privilege for “deliberative process” in our state law?

When the Review-Journal sued the county for cell phone records, we got them, but the court included a specious comment that the deliberative process privilege "permits agency decision-makers to engage in that frank exchange of opinions and recommendations necessary to the formulation of policy without being inhibited by fear of later public disclosure."

I hope the this case goes forward and this “privilege,” snatched out of thin air, is dispatched, spindled, shredded and stamped out.

Under this privilege, Illinois Gov. Rod Blagojevich could argue he was merely engaged in a deliberative process, engaging in a frank exchange of opinions and recommendation and he should not have been inhibited by fear of later public disclosure that he was trying to extort money from would-be Senate appointees.

The Gazette-Journal sued in October after it was denied access to six months of e-mail sent from Gibbons' state account to 10 people, including his former chief of staff, wife, Warren Trepp and others.