Vandelay Entertainment, LLC v. Fallin

Vandelay Entertainment, LLC d.b.a. The Lost Ogle filed suit in district court to obtain records that the Governor withheld when responding to Vandelay's Open Records Act request. The district court ruled the Governor had a common law privilege to withhold the records in question. In conclusion, we hold that the trial court correctly ruled that the Governor has a privilege to protect confidential advice solicited or received from "senior executive branch officials" for use in deliberating policy and making discretionary decisions. We disagree, however, with the trial court's conclusion that this privilege rests solely upon common law. We hold that this privilege is a "power properly belonging" to the Governor's constitutional office as head of the executive branch and is protected by the separation of powers clause in Article 4, section 1. The need for confidential advice from "senior executive branch officials" for use in the Governor's deliberations and decision-making is "essential to the existence, dignity and functions" of the executive branch. Also, the need to protect such confidential advice is so ultimately connected and bound up with the executive function that the right to regulate disclosure of such confidential advice by way of a privilege naturally and logically belongs to the executive branch. This privilege is not absolute, however, and is subject to the check and balance of in camera judicial review, in lieu of legislatively-mandated public disclosure. The Governor has the burden upon in camera judicial review to demonstrate that any material relating to such confidential advice satisfies the criteria set forth in this opinion. Even confidential advice that satisfies this criteria can be subject to disclosure where (1) the requesting party can show a substantial or compelling need for disclosure and (2) the need for disclosure outweighs the public interest in maintaining the confidentiality of the advice. View "Vandelay Entertainment, LLC v. Fallin" on Justia Law