Three days ago, The Intercept published a fascinating and alarming report: Members of the Republican Attorneys General Association (RAGA) had “created a secret online bulletin board called the ‘Briefing Room’ that’s allowing big donors to help shape legal policy” as a part of its so-called “nonprofit policy arm,” a 501(c)(4) named the Rule of Law Defense Fund (RLDF). Their correspondence and reports have largely remained unknown to the public, despite the fact that this organization is comprised of a group of elected officials who collaborate on making policy recommendations to the White House and various federal departments and agencies..
“Ethics experts said Republican attorneys general — who are responsible for ensuring compliance with open records laws — are improperly hiding their own policy dealings from the public,” The Intercept reported.
According to RAGA’s most recently available 990 report to the IRS, which covers the year 2016, the organizations appear to be two sides of the same coin, sharing office space and personnel with one another.
Louisiana Attorney General Jeff Landry currently holds a prominent title with RAGA; he is the organization’s “Nominations Chair,” and his employee, Louisiana Solicitor General Liz Murrill, is named in at least one internal document as a point of contact for RLDF’s working group with the Trump administration.
The Intercept made multiple public records requests in multiple states for any and all communications shared by state attorneys general and the RLDF, which charges donors $25,000 a piece for access to its secret “Briefing Room” bulletin board; for the most part, they were met with obfuscation and denials.
However, they did acquire a letter from Liz Murrill to Health and Human Services Secretary Tom Price, requesting that the HHS change the interpretation of a federal rule in order to allow Landry and others to pursue investigations and arrests of individuals accused of Medicaid beneficiary fraud. Murrill had attached her office’s letter to Sec. Price in an e-mail sent to a staffer at RLDF, requesting the item be placed onto the agenda of their next meeting. (The Bayou Brief is currently developing a separate story about this effort, which we hope to publish within the next two weeks).
The Bayou Brief reached out to one of the reporters who collaborated and contributed with The Intercept on its story about the RLDF, Andrew Perez, who works for the non-profit government watchdog group MapLight. Perez volunteered to provide The Bayou Brief with the entire cache of public records they had received from Jeff Landry’s office. These documents shed no additional light on the contributions Landry’s office has made to the RLDF, but, in many ways, they provide unique insight into his office’s priorities and policy agenda, which we will explore and unpack in a subsequent series of reports.
There is, however, one immediate thing that stands out about Landry’s office and the ways in which it evaluates and determines which records it considers to be subject to disclosure, and it should be a cause of concern for anyone who champions government transparency and respects the fundamental right of citizens, as enshrined in the Louisiana State Constitution, to have access to public records.
It is particularly troubling because, as The Bayou Brief can independently confirm, the tactic has been used by Landry’s office on at least two occasions.
As a part of The Intercept‘s initial public records request, which was filed in late September of last year, Perez requested e-mails between Landry’s office and the United States Department of Justice, the Environmental Protection Agency, and the White House. According to Luke Donovan, a staff attorney who handles public records requests, there were more than 1,800 documents that fit their search criteria, primarily due to the voluminous records exchanged between the state’s Department of Justice and the federal Department of Justice.
“Are there a lot of DoJ records? Would it have much impact if you just cut those out?” Perez asked Donovan on Oct. 31st of last year.
Donovan responded the same day, “That’s not a specific value that we coded for, so I couldn’t give you an exact page number for DoJ records, but yes, I believe cutting those out would decrease your page count significantly. I will work on it and get a more accurate page count for you.”
Donovan was right: Nearly a month later, on Nov. 27th, 2017, he sent his response to Perez (emphasis added), “Our office identified 40 pages of responsive non-privileged records. In addition, 16 pages of records were withheld under attorney-client and deliberative process privileges.” Out of the 1,800 pages of documents initially identified, Landry’s office could now furnish only 40 pages.
Perez forwarded the letter to one of his colleagues at MapLight, the Pultizer Prize-winning journalist Frank Bass. “Got these files from Louisiana AG’s office,” Perez wrote (emphasis added). “I asked him (Donovan) about the files he says they are withholding because I don’t see how they can use a deliberative process exemption when we are requesting their comms with people outside the agency.”
Around the same time last year, The Bayou Brief submitted a different public records request with Landry’s office, seeking, among other things. any and all correspondence to or from Shane Guidry.
Guidry is a mega-millionaire who owns a successful maritime transportation company, Harvey Gulf, and is currently the single largest donor to Republican candidates and causes in Louisiana. He also just so happens to be moonlighting as an employee of Landry’s office, with the title of “Head of the Criminal Investigations Unit.”
On Dec. 22nd of last year, I received the following response from Luke Donovan (emphasis added):
After a diligent search of our records using the search terms you provided, our office has identified 37 pages of responsive records for the first portion of your request (which asked for Guidry’s e-mails) and 176 pages of responsive records for the third portion of your request (which asked for records containing my name; I was interested in how my records requests were being handled). Copies of these records are attached to this correspondence.
Furthermore, 311 pages of intra-office email records will be withheld under the deliberative process privilege and six (6) pages of email records will be withheld under the attorney-client privilege. The deliberative process privilege protects confidential intra-agency advisory opinions, disclosure of which would be injurious to the consultative functions of government. Accordingly, it is this office’s position that these 317 pages of records are not subject to disclosure.
Once again, the Attorney General’s Office was asserting an expansive deliberative process privilege; nearly 90% of the responsive documents, they asserted, were exempt from public disclosure.
In the 213 pages of e-mails they provided, there was only a single e-mail from Shane Guidry, containing only a single word, “Wow.” Guidry was responding to the news that Matt Sledge, a reporter for The Advocate, had subsequently made an almost identical records request as I had previously filed about the so-called “Louisiana Violent Crimes Task Force,” which apparently generated nearly 5,000 documents. That was it: Wow.
I wrote Donovan back (again, emphasis added):
I appreciate your interesting and novel application of the deliberative process exemption as it relates to this particular records request. Incidentally, when I was in law school, I wrote an entire commentary on the origins and application of Louisiana’s deliberative process exemption.I think your office has just made history.
With apologies to Mr. Donovan, who, I appreciate, was merely doing his job, there was a good reason for my dismissiveness: The deliberative process exemption no longer exists in Louisiana.
It was eliminated in 2015, after then-Gov. Bobby Jindal signed Act 145 into law. But even when it had been on the books, the exemption, specifically, had never applied to anyone other than the governor.
Landry’s office was concealing public records by citing an old law that never applied to them in the first place, and no doubt, they were counting on the belief that no one would question or challenge their deception.
Act 145 of 2015, which was sponsored and written by State Sen. Dan Claitor, contained the following redaction:
Before Claitor’s bill was signed into law, this particular state statute- LA R.S. 44:5– had actually been known as the “Deliberative Process Privilege,” a part of former Gov. Bobby Jindal’s so-called “ethics reform” package that he touted during his first year in office. Before Jindal, the statute had simply been known as the “governor’s privilege,” a term that dates all the way back to the administration of Huey P. Long.
Jindal had pledged the reform would increase transparency in government. It actually had the opposite effect. Although the privilege was supposed to be limited only to the governor’s office- and not to any other state agencies and departments, it was routinely asserted by just about everyone in the administration. State Sen. Robert Adley had presciently warned at the time that the change in the law would turn Louisiana from “sunshine into moonshine.”
In 2011, Kevin Blanchard, then a student at LSU Law, wrote an exhaustive and informative, 43-page comment about the deliberative process exemption.
“LPA (the Louisiana Press Association) feels that the deliberative process has morphed into something other than what we thought it would be when it was presented in 2009,” former LPA President Norris Babin told Gambit in 2013. “It’s being used more broadly than promised. We were told it would make more records public. In actuality, it has taken more things off the public records table — and we would like to see something done about that.”
Legislators had been trying to close the loophole created by the privilege almost immediately after it became law, but Jindal waited to make the fix right until the moving vans pulled up the driveway of the Governor’s Mansion.
Ostensibly, the privilege was supposed to have allowed the governor the authority to withhold public records if those records were part of an ongoing deliberation, a right that all previous governors had always possessed; the change had been sold as a recapitulation of existing state law. However, the law’s broad language- anything that would assist the governor “in the usual course of the duties and business of his office”- was exploited by department heads and agency leaders to withhold records about routine government business, despite the fact that the law specifically stated, “Internal staff shall not mean any person employed in any other government agency.”
A lawyer for the Jindal administration advised LSU to invoke the privilege in order to prevent LSU from sharing with the media about proposed budget cuts at the school and potential plans for privatizing health care services.
And now, Attorney General Landry is refusing to release documents he claims are about “the consultative functions of government,” which is a meaningless term.
There are countless other examples, and it’s worth noting, at the time, Jindal’s Executive Counsel was Liz Murrill, who is now serving Landry as his Solicitor General.
The law was ripe for abuse, and, in fact, it was abused routinely to hide from the public those records from agencies and departments that could be perceived as embarrassing or problematic for the governor, all under the dishonest pretext that disclosure would have compromised the governor’s ability to do his job.
The state Attorney General can assert privilege over documents and records related to “prosecutive, investigative, and law enforcement agencies and communications districts,” which is enshrined in LA RS 44:3, but those privileges are entirely concerned with the production of documents and evidence related to criminal investigations and the identities of confidential sources; it does not allow him to withhold internal communication about public policy, finances, and “staff deliberations.”
He cannot assert a now-defunct “deliberative process privilege” to withhold staff communications or his own correspondence with the federal government, and given that his office has made a distinction between the meanings of “deliberative process privilege” and “attorney-client privilege” (which he can rightfully assert), there is ample reason to conclude that Landry’s office is improperly hiding hundreds of pages of records from the public.
On the same day The Intercept revealed that the Landry-led Republican Attorney Generals Association and the RLDF were concealing public records from the media, Jeff Landry shared this on his Twitter account:
It’s an opinion column written by the leader of the organization Citizens United, David Bossie, in which he argues in strong support of a criminal investigation into Sec. Hillary Clinton. It’s a bizarre column, written by one of Clinton’s most vociferous critics, but at its core, Bossie makes the same, tired argument he has been repeating for years now: Hillary Clinton should be criminally investigated for potentially concealing and allegedly failing to disclose public records she housed on a private server.
Landry would be wise to reflect on the old adage: “When you point one finger, there are three fingers pointing back to you.” And while he’s reflecting on it, he may recommend to his colleagues at the Rule of Law Defense Fund and his friend, benefactor, and employee, Shane Guidry, to stop using private e-mail addresses on private e-mail servers to discuss public business.
According to Landry, that sort of stuff should lead to a criminal investigation.
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