Alaska News

Release of state records still pending in National Guard lawsuit

More than a month after suing Gov. Sean Parnell for the release of public records related to problems in the Alaska National Guard, plaintiffs Alaska Dispatch News and Alaska Public Media have received more than 2,000 pages of documents, but the heavily redacted material sheds little light on how Parnell and his staff addressed guard-related complaints.

On Oct. 9, the attorney general agreed to rolling production of the desired records. When that didn't happen, the news outlets sought relief in court. On Oct. 30, Alaska Superior Court Judge Greg Miller ordered the state to begin daily production of the records sought until Election Day.

Between Oct. 24 and Nov. 5, the state provided eight logs, 10 document dumps and one affidavit from the governor's chief of staff. The logs contain either lists of records or lists of records withheld and the reasons why. The document dumps contain thousands of pages of records, often with redactions and many times entirely blacked out.

In the wake of a federal report revealing misconduct and a harsh command climate within the guard, the news outlets pressed for the release of records originally sought dating as far back as May. Guard-related communication between the governor and his top aides became the priority as the litigation process played out.

To date, the state has provided nine logs that contain lists of records believed to be responsive to the search request. Some of the logs explain why some or all of the individual records identified won't be made public, citing any number of state or federal laws and executive privileges under which records can be withheld.

Among the documents provided is a signed statement by Chief of Staff Mike Nizich that he searched his personal email for any records related to the National Guard issue and forwarded those emails to his work address, thus preserving the emails within the public record.

The remaining 10 document dumps yielded more than 2,778 pages of material containing mostly emails and their attachments. It is thought that thousands of documents have yet to be turned over, but it is unclear how relevant the outstanding materials will be.

One of the challenges has been trying to assemble a search that will "intercept" the information sought by Alaska Dispatch News and Alaska Public Media. Since the news outlets don't know the universe of records that exist within state government that would shed more light on what state officials did or didn't know, and what they did or didn't do, in response to problems within the guard, the records requests are to some extent guided by instinct. Armed with a few anchor points -- known pieces of correspondence provided by whistleblowers -- the plaintiffs sought those items and others thought mostly likely to expand the public's view into the conditions within, and the governor's management of, the guard.

Now that the court's order to expedite production before the election has expired, attention from both the plaintiffs and the state has turned to how to yield more productive results. A standing agreement still calls for ongoing production. Both sides benefit by not wasting time on duplicate records or on reviewing obviously irrelevant material. The effort also includes refining the search priorities and, for the plaintiffs, pushing for greater transparency.

"We don't know what we don't have. We don't know what we don't know," plaintiffs' attorney John McKay said in an interview Thursday.

"In general we are not getting much meaningful information from what we have seen so far. We think we are entitled to meaningful information, so we believe the redactions are excessive because we are not getting information that the public needs to understand what happened and what didn't happen with the Alaska National Guard," McKay said.

The federal Privacy Act, the Alaska Public Records Act, laws covering Alaska personnel records, deliberative process and executive privilege have all been invoked to continue to keep much of the information shielded from view. Because the state personnel act does not apply to National Guard employees or employees of the office of the governor, McKay has asked that the state re-evaluate its approach.

One example is a one-page email with the subject line "Investigations (UNCLASSIFIED)," sent by then-adjutant general hopeful Thomas Katkus to Nizich on Oct. 21, 2009. It is cc'd to Ward Hinger, the governor's military affairs liaison, and includes attachments. Only two words are unredacted in the email: the opening salute "Sir" and the signoff "Katkus." All 12 lines of the main body of the email are redacted, as are portions of the titles for the attachments. The attachments are listed as "FW: New TAG for AKNG (UNCLASSIFIED);" (redacted portion) "Mark Begich (UNCLASSIFIED)."

A little more than two weeks later, Parnell named Katkus the state's new adjutant general, serving a dual role as commissioner of military and veterans affairs.

The state is also using something it calls "balance of interests" to redact things like personal email addresses and cellphone numbers from the correspondence.

The state has used the "balance of interests" rationale to hide the identity of citizens who felt compelled to write letters of concern to the governor about what was going on in the guard and to redact previously published press releases or email addresses to which the releases went.

Thursday afternoon, assistant attorney general Alan Birnbaum sent a letter to plaintiffs' attorney McKay agreeing to review some of the redactions -- but only if the state personnel act was the only reason cited for redactions, and even then Birnbaum argued that where the state personnel act isn't applicable, federal privacy laws and Alaska's constitutional right to privacy generally remain applicable.

Birnbaum also offered insight into the redactions made for deliberative process and executive privilege.

"Many of the communications Plaintiffs seek are between the governor and his closest advisors or among the governor's closest advisors for the purpose of determining the need to act and what action to take regarding the Alaska National Guard; in particular, the Guard's leadership. Thus, these governor's office records are quintessential executive privilege-protected and deliberate process privilege-protected communications. Moreover, given that these communications concern many significant decisions involving the Alaska National Guard that were recently reached or that are pending, the government's interest in nondisclosure outweighs the public's interest in disclosure," Birnbaum wrote.

The result of the election itself may also affect production. Parnell's challenger, Bill Walker, is holding on to a lead as the Elections Division counts early, absentee and questioned ballots. If he maintains the lead and does indeed become Alaska's next governor, he has said he will take a close look at the records requests and comply with the court's orders.

"My practice is to err on the side of transparency without violating anybody's rights in the process," Walker said.

"Candidate Bill Walker called for greater transparency in government generally," McKay said, "and he specifically said the governor's office should be releasing more information about the National Guard scandal and how it was handled. If there is a change in administrations, I hope that the new governor will quickly and clearly authorize the release of the documents that will shed real light on this whole thing.

"Meanwhile, we are continuing to work together to make this process as efficient and as productive as possible."

Jill Burke

Jill Burke is a former writer and columnist for Alaska Dispatch News.

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