Manager withholding draft documents
Haines Borough Manager David Sosa this week refused to release a draft document on docking fee waivers for cruise ships that was circulated among borough staff and members of the Tourism Advisory Board nearly two weeks ago.
The CVN acquired the draft from another source.
The draft was sent out April 23 via community and economic development director Bill Mandeville’s work email account to Sosa, tourism director Leslie Ross, chief fiscal officer Jila Stuart, assembly member Diana Lapham and Tourism Advisory Board members Barbara Mulford, Jeff Butcher, Karen Hess, Michael Marks, Rhonda Hinson, Scott Sundberg and Sean Gaffney.
Sosa has also previously refused to release documents in draft form, despite specific language in Alaska Statutes identifying drafts as public records.
According to the Reporters Committee for Freedom of the Press, “the scope and coverage of the Public Records Act was intended by the legislature to be very broad, and the Supreme Court has interpreted it this way. The statute was amended in 1990 to expand the definition of public records, most significantly to reaffirm that it includes drafts, memorializations of conversations, and records ‘developed or received by a public agency or by a public contractor for a public agency.’”
The City and Borough of Juneau’s law department also clarifies that labeling a document “draft” doesn’t make any difference. A public records training document produced by the City and Borough of Juneau’s law department in 2012 reads, “Draft documents are public records, as are final documents.”
Sosa said he has reviewed the issue with borough attorney Brooks Chandler, who has invoked the legal basis of “deliberative process.”
Sosa relayed Chandler’s thoughts on releasing draft documents via email: “(Deliberative process) is that while the executive branch of government is in decision making mode on a particular matter, documents relating to that matter do not need to be made available in response to a public records request. The underlying reason for this privilege is that release of such drafts/works in progress/negotiations in progress would hinder the ability of the government to efficiently and effectively make decisions.”
When asked this week to release the entire email exchange between Sosa and Chandler, Chandler refused, invoking attorney/client privilege.
Media attorney John McKay, who recently represented the Alaska Dispatch News and Alaska Public Media in a public records lawsuit involving sexual misconduct in the Alaska National Guard, said the “deliberative process” argument would seem to lose strength when the document has already been sent to members of the community who volunteer on an advisory board.
“I don’t think they can just assume because it is a draft that gives them a free pass, especially when they are circulating it among members of the community,” McKay said.
Sosa said the cruise ship waiver report will be presented at Tuesday’s assembly meeting with a recommendation that it be sent to the Commerce Committee. “This will allow at least one and most likely two or three opportunities for public comment and review and allows the plan to be vetted and revised or scrapped based on input,” Sosa said.
“My goal is that most complex items go through this process (staff or committee development, staff and committee revision with public input, revised document brought to the assembly). This will take more time but allows for an issue to be reviewed at many levels before going to the assembly,” he added.