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Judge orders some National Guard documents released

  • Author: Richard Mauer
  • Updated: September 28, 2016
  • Published October 30, 2014

An Anchorage judge on Thursday ordered Gov. Sean Parnell to release hundreds of documents related to the Alaska National Guard leadership and sexual misconduct scandal or explain why the documents can't be released.

Superior Court Judge Greg Miller gave the state until noon Friday to produce the records or provide a "privilege log" that would show why they aren't disclosable under Alaska law. He also directed the state to continue to review additional records and produce them until Election Day.

Assistant attorney general Elizabeth Bakalar asked for a stay pending appeal, but Miller denied the request. After the hearing, Bakalar said she would consult with Attorney General Michael Geraghty about whether the state will take the ruling to the Alaska Supreme Court. The Supreme Court could issue a stay of the ruling.

The decision by Miller represents a victory of sorts for the news organizations, which have been seeking documents related to the scandal since May without success. The state still has opportunities to delay release of the records -- a first batch of more than 100 emails and potentially thousands more to follow.

During the hearing, held on short notice after lunch Thursday, media attorney John McKay likened the current situation to an "emergency," with the Nov. 4 gubernatorial election looming. McKay said the media organizations weren't trying to decide whether Parnell properly handled the guard allegations since they first were made in 2010 and whether he should be punished or rewarded at the ballot box.

"We don't take a position on which of those is correct, but we do take a position that the public is entitled to know what the documents about this show so they can make up their own minds," McKay told Miller.

Bakalar said she wasn't there to protect Parnell "or conceal information from the public," but rather to "defend the office of the governor, regardless of who occupies that office." It was important to protect a governor's right to make deliberative decisions out of the view of the public. Sometimes documents need to be withheld under executive privilege, she said.

Bakalar also asserted there was no emergency -- that Parnell should have the right to take his time to review documents to see if they fall within the privileges that would prevent their disclosure.

But Miller clearly wasn't accepting that logic.

"The state now says there's no emergency, but I think everybody would be kidding themselves to suggest that the upcoming election isn't just around the corner and it doesn't matter that these National Guard records are not in any way related to the election," Miller said just before announcing his ruling.

In the end, it's possible the news outlets will get nothing but blank papers on Friday. As Bakalar noted, the governor's office can assert multiple privileges for withholding information, including privacy and "executive privilege" -- the right to make internal decisions unfettered by public viewing. It will then be up to the media organizations to challenge those assertions should they be invoked.

The attorney general's office and the media plaintiffs had initially agreed to work cooperatively after the lawsuit was filed Oct. 8. Attorneys from the Department of Law arranged for a search of the state's email system based on names and key words provided by the news organizations, and to then expedite a review of those emails for relevancy, privacy problems and other reasons for nondisclosure. The department assigned about 10 lawyers to the task and agreed to produce a "privilege log" that would show the records it was withholding and why.

The media outlets wanted the records to show when Parnell and his aides learned about allegations of fraud, sexual misconduct, leadership failures and other problems in the Alaska National Guard, and what they did about it.

Military chaplains and other officers say they've been trying to get Parnell to act on the allegations since 2010, but that he failed to move until confronted last month with a scathing report from investigators from the Pentagon's National Guard Bureau. Parnell and his aides said they investigated each charge as it arose and even asked the FBI for help, but no systemic problems were uncovered until the Guard Bureau came along.

McKay said a reporter with Alaska Public Media filed a broad public records request in May, and another from Alaska Dispatch News did likewise in June. Both were assured by Randy Ruaro, the governor's counsel, that records would be forthcoming, but the 10-day response period came and went, as did the 10-day extension. Finally, Ruaro sent a letter in September asserting that all the requested documents were privileged and that none would be provided.

The news organizations filed their lawsuit a few days later, McKay said.

In searching the state's email system, the attorney general's office said it found more than 12,000 documents that were potentially relevant.

McKay urged Miller to not see that number as a giant hurdle because it was so big. In fact, the state and the media parties had agreed to a "rolling release" in which the records could be reviewed and provided to reporters in batches. While hundreds have been delivered from the attorney general's office to the governor's office for final review, they all remain stuck in that bottleneck, McKay said.

"We don't want to hung up on the wrong number," McKay said. "We're not asking the governor's office today, or you today, to undertake some massive and impractical task of producing or going through 12,300 documents, or any other thousands and thousands of documents. The relevant number to focus on is none, your honor, because that's the number of documents that they have produced out of these 12,300 email records."

Before he announced his decision, Miller engaged in a civics lesson of sorts, relating that Alaska has had strong public records laws since it was a province of the federal government in early territorial days. In 1962, the young state affirmed public access to records in its statutes, Miller said.

"In 1990, the Legislature added comments, strengthened its position, and it said, 'Public access to government information is a fundamental right that operates to check and balance the actions of elected and appointed officials and to maintain citizen control of government.' Those aren't my words, that's the Alaska Legislature's words in 1990," Miller said. "Put another way, the Legislature made it very clear that it interpreted the disclosure of documents broadly and the limiting of documents narrowly."

The judge chided the state's attorneys for not being able to explain during the hearing how much time they needed to produce the records.

"The state can't just say I can't give you a time when we'll get to it," Miller said. "I asked five times how long, and they couldn't give me an answer. That's not what the statutes, that's not what the regulations say or permit."

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