The Enlightened Despot

I can now say with reasonable certainty that Andree McLeod’s current appeal will be denied. (If you’re not following me, catch up here and here.) This has nothing to with the merits of the argument, and everything to do with the fact that the appeal is being considered by… wait for it… Sarah Palin. The first recourse for someone whose request for public records is denied is an appeal to the agency that did the denying, asking them to reconsider. In this case, I’m guessing not too much deliberation will be required.

There is, of course, another level of appeal once this falls through, though I have not yet figured out what the details of that are. I’m also not certain how long Palin gets to pretend to deliberate before rejecting the appeal, but the time limit for responding to the initial request for documents is ten business days; if the limit for responding to an appeal is the same, she would have to say ‘no’ a week from Tuesday.

Kevin Drum has a copy of the appeal. Though I am by no means a legal expert, I haven’t found someone who is one talking about this, so I muddled my way through it and looked up some of the relevant laws. Here is a very rough outline of the argument:

1.) First off, the Freedom of Information Act isn’t directly involved at all. The documents were requested under an Alaskan law which serves the same purpose.

2.) As it turns out, there is nothing like executive privilege anywhere on the books in Alaska. There is, however, a list of exceptions included in the FOIA-like law, one of which is the following: “(4) records required to be kept confidential by a federal law or regulation or by state law”. An Alaskan court ruled that an executive privilege should be understood as assured by the seperation of powers embodied in Alaska’s constitution. A later ruling held that this ruling should be considered a state law for the purposes of (4) above. (This is unrelated, but note that the Alaskan courts did a nifty bit of legislating on the grounds of the seperation of powers. But don’t get me started.)

3.) There are apparently no relevant precedents in Alaskan law concerning executive privilege being invoked with regards to a document that was sent to a private citizen.

4.) The Alaska Supreme Court has ruled that federal rulings on executive privilege with regards to the FOIA are “instructive” as to how Alaska’s executive privilege non-law should be interpreted.

5.) There are relevant precedents in federal law. There, the courts have ruled that voluntarily granting access to someone who isn’t an employee of the executive constitutes waiving executive privilege.

QED. Or so it would seem. It would be great if someone were reporting on this in a substantive way, so that legal experts could evaluate this, but no one is, so that will have to do for now.