Legal View: Palin's use of executive privilege

We offer a lesson for all Alaskans in the appropriate use of executive privilege from one of the smartest lawyers in town on the issue.

Somebody in the Palin administration has some explaining to do.

An important rule regarding privilege and privilege logs: The description of the contents has to be descriptive enough so that it is readily apparent why the privilege is invoked.  The person seeking the documents has to be able to make an argument, based on the description, whether the documents should be disclosed.  In this case, it is clear that all they have done is taken the re line from the email.  Not good enough by any means.

There are two ways to go on this one.  (1) Demand a better description.  Or much better in my opinion, (2) stick with the description given and argue that an email "re Andrew Halcro" cannot possibly be covered by the deliberative process privilege.  On the second approach, the type of privilege claimed, as well as any other reason for claiming privilege, in my opinion are now waived.  For example, they should not be permitted, if now pressed, to offer a better description.  They should have to live with what they have put forth as the reason for invoking the privilege. 

That leads now to how to properly produce documents where privilege is claimed.  Only those portions which actually satisfy the criteria for the deliberative process. Likewise, the portions of the email that involve "Andrew Halcro" can in no way under any circumstances be considered privileged.  Those must be revealed right off the bat, without further discussion.

Finally, the deliberative process privilege is more narrowly applied the lower down the pyramid one goes. So, a discussion between the Governor and a the lt. governor or commissioner gets greater and broader protection than, say, a discussion the Director of Boards and Commissions, Frank Bailey, or the Special Assistant, External Affairs, Ivey Frye.

When this has been done before, the AG's office took this deadly seriously.  There had to be detailed and reasoned arguments on each one.  The attitude was that the Access to Public Records Act was the primary standard applied, and the deliberative process was used as exceptions, not vice-versa.

I would be quite surprised if the AG's office was even consulted on this.  I cannot imagine any experienced lawyer allowing representatives of his client (i.e., the State) to abuse the privilege like this to thwart the public's right to see the records.