In May 2014, APRN’s Alexandra Gutierrez made a public records request to the Governor’s Office, asking for records relating to the Alaska National Guard scandal. By Alaska law, the Governor was required to respond within 10 days, with one additional 10 days extension for cause.
The Governor responded September 26, 2014. Only 120 days late. And denied the request.
The denial came from Randy Ruaro, Captain Zero’s Policy Director and Special Counsel. And let’s just say that Ruaro’s response is much better at fertilizing pastureland than explaining why a reasonable request for public records has been denied. Let’s examine some of Ruaro’s excuses, and see if WC’s readers don’t agree. WC won’t address all of the 2.5 pages of feeble excuses Ruaro offers, but WC will touch on some of the more ridiculous ones.
Mr. Ruaro opens by asserting:
Under the Alaska Constitution, parties to misconduct allegations have a constitutional privacy interest that exempts information from disclosure. Alaska Wildlife Alliance v. Rue, 948 P.2d 976 (Alaska 1997).
Mr. Ruaro’s problem here is that Rue says nothing of the kind. In Rue, the state supreme court held that time records, along with names and compensation, of ADF&G employees had to be produced in response to a public records request, that those records were not exempt from production. Rue held that where there were death threats against persons – in that case, wolf-hunting independent contractors of ADF&G – there names need not be produced. But there are no death threats in the Alaska National Guard scandal. If the scandal is threatening to kill Captain Zero’s political career, that’s not a death threat. Rue says nothing like what Ruaro claims. His argument doesn’t pass the red face test.
Ruaro claims executive “deliberative privilege” as a reason for denying the public records request. It’s absolute nonsense. The deliberative privilege, announced by the Alaska Supreme Court during the second Hickel administration, applies to deliberations among administration officials as to how to act. Reports of criminal activity aren’t deliberations. They might be the trigger for deliberations, which might protect bona fide delierations about how to respond. But not the reports themselves. The claim fails the red face test.
One of the requests went to the email communications regarding the three military clergy who brought their concerns about sex abuse to the Governor. The Governor had earlier promised to provide them. He broke that promise. Gutierrez had asked for those communications.[^1] Ruaro refused, saying:
[P]rovisions of State law protect information and communications by a victim or victim counselor from disclosure. AS 18.66.200. The chaplains, in this instance, were serving as a victim counselor. The fact that the victim counselors were also chaplains means another privilege from disclosure applies. Alaska Rules of Evidence, Rule 506, provides a specific privilege from disclosure for information and statements made to clergymen by a victim.
But we know that the three chaplains were not serving as victim counsellors. They were given the information they had to attempt to get the Governor to do something about ongoing misconduct at the Alaska National Guard. And Mr. Ruaro, who is a lawyer, knows that Evidence Rule 506 only applies to admission of evidence into court or administrative proceedings. It’s completely irrelevant here. The chaplains who met with Captain Zero weren’t offering evidence in court; Ms. Gutierrez wasn’t offering evidence in court. Mr. Ruaro’s claim – Captain Zero’s claim – fails the red face test.[^2]
Ruaro has other excuses:
Similarly, AS 40.25.120(6) provides a broad exemption for information compiled for law enforcement purposes. The term “law enforcement purposes” is broadly construed to include records and documents generated in a civil personnel investigation of alleged misconduct by employees or particular identified officials.
Excuse me? What criminal investigation? The point here is that there has been no criminal investigation. The fact is that Captain Zero and state government has done nothing except stall in responding to or investigating anyone about the shocking misconduct in the Alaska National Guard. If there is, for example, a state grand jury investigation under way, let’s see a statement from Attorney General Mike Geraghty saying as much. The possibility of a criminal investigation – assuming the statutes of limitation hasn’t run on most of the victims’ claims – is not an excuse. Such an argument would prove too much: any time there was possible criminal misconduct the Governor could wrap himself in the excuse, making the public disclosure laws meaningless. Again, the excuse fails the red face test.
WC has no idea if APRN’s resources extend to a superior court appeal from Ruaro’s idiot, clumsy decision. Or if the risk of political heat is too great for APRN. But Ruaro’s wretched excuses for denying this public record request are patently wrong. The Governor’s flack is covering the Governor’s butt. It’s not a surprise; it’s consistent with everything else Captain Zero has failed to do. Including choosing respect.
[^1]:Chief of Staff Mike Nizich apparently used his personal email for some or all of these communications, according to Captain Zero. We went through this battle during The Quitter’s administration. It’s illegal. It has to stop.
[^2]Redaction, n., [Lat. redigere] To remove objectionable or confidential portions of a document before publication.