Appeal
from the Superior Court of the State of Alaska No.
4FA-16-02509 CI, Fourth Judicial District, Fairbanks, Douglas
Blankenship, Judge.
Kaleb
Lee Basey, pro se, Fairbanks, Appellant.
John
J. Novak, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger and
Carney, Justices.
OPINION
BOLGER, JUSTICE.
I.
INTRODUCTION
In this
appeal, Kaleb Basey argues the Alaska State Troopers (AST)
must comply with his requests for certain public records. The
State contends the requested records are statutorily exempt
from disclosure because the records pertain to currently
pending federal cases: a criminal case against Basey and a
related civil suit he brought against various state
employees. We conclude the State has not established that
disclosure of these records "could reasonably be
expected to interfere with enforcement
proceedings"[1] or that either of these pending actions
"involv[es] a public agency"[2] as required by
the statutory exceptions the State cites.
II.
FACTS AND PROCEEDINGS
Basey
was the subject of a joint criminal investigation conducted
by AST and the Fort Wainwright Criminal Investigation
Division. He is now a party to two federal cases stemming
from that investigation. First, Basey was indicted by a
federal grand jury in December 2014 and is the defendant in a
federal criminal case.[3] Second, Basey brought a federal civil
rights lawsuit in January 2016 against more than a dozen
named individuals, including AST officers, based on their
alleged actions during the investigation and his
arrest.[4]
In
September 2016 Basey filed two public records requests with
AST. He sought records related to his specific investigation,
records related to AST's use of military search
authorizations, and disciplinary and training certification
records for two AST investigators who are defendants in the
civil case.[5] About a week later AST denied Basey's
requests on the basis that all of the information he
requested pertained to pending litigation. Basey appealed to
the Commissioner of the Department of Public Safety,
[6]
challenging AST's determination that the records were not
disclosable and arguing that any nondisclosable information
could be redacted. The Commissioner denied the appeal. The
denial letter stated that the requested records "pertain
to a matter that is currently the subject of civil and/or
criminal litigation to which [Basey is] a party" and
that pursuant to AS 40.25.122 the records "continue to
be unavailable through [a public records request] and must be
obtained in accordance with court rules."
Basey
subsequently filed a complaint in superior court to compel
AST to produce the records. The State filed a motion to
dismiss, asserting that two statutory exceptions justified
the denial of Basey's requests. First, the State claimed
that "[AS] 40.25.120(a)(6)(A) authorizes refusal to
disclose records when the records pertain to a pending
criminal prosecution, " and it asked the court to take
judicial notice of the pending federal criminal case. Second,
the State claimed "[AS] 40.25.122 authorizes refusal to
disclose records when the requestor is a party in a pending
civil lawsuit that relates to the sought after records,
" and it asked the court to take judicial notice of the
pending federal civil case. The State attached a redacted
version of the federal civil complaint to its motion.
Basey
opposed the motion, challenging the State's
characterizations of the cited statutory exceptions. Citing
Brady v. State[7] and an attorney general opinion,
[8] he
argued that the AS 40.25.122 litigation exception applies
only when the requestor is "involved in litigation
with the state" and that he had named
individual persons, not the State, in his civil suit.
(Emphasis in original.) Basey also argued that the AS
40.25.120(a)(6)(A) law-enforcement exception did not apply
because the State had not "made a sufficient showing . .
. that disclosure of the requested records and information
would reasonably interfere with enforcement
proceedings."[9]
Without
holding a hearing, the superior court dismissed the case with
prejudice "[b]ased upon the reasoning in [the
State's] Motion to Dismiss."
III.
STANDARD OF REVIEW
The
State did not indicate the procedural basis for its motion to
dismiss, nor did the superior court do so in granting the
motion. We construe the motion as one to dismiss for failure
to state a claim pursuant to Alaska Civil Rule 12(b)(6),
[10]
which we review de novo.[11] Under Rule 12(b)(6) "[a]
complaint should not be dismissed 'unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim' that would entitle him to some form
of relief."[12] This case also presents questions of
statutory interpretation, which we decide "using our
independent judgment."[13] We consider the statute's
"text, legislative history, and
purpose."[14]
IV.
DISCUSSION
"[T]here
is a strong commitment in Alaska 'to ensuring broad
public access to government records.'
"[15] Consequently, "[e]very person has a
right to inspect a public record in the state, " subject
to certain exceptions set forth in statute.[16] These
exceptions are "narrowly construe[d]" in order to
further the legislative policy of broad access,
[17]
and the State generally bears the burden of showing that a
record is not subject to disclosure.[18] Throughout this case, the
State has relied on only two exceptions to justify AST's
nondisclosure of the requested records: the AS 40.25.122
litigation exception and the AS 40.25.120(a)(6)(A)
law-enforcement-interference exception.
A.
Litigation Exception (AS 40.25.122)
Alaska
Statute 40.25.122 provides that documents relating to
litigation involving a "public
agency"[19] are subject to disclosure, with one
exception:
A public record that is subject to disclosure and copying
under AS 40.25.110-40.25.120 remains a public record subject
to disclosure and copying even if the record is used for,
included in, or relevant to litigation, including law
enforcement proceedings, involving a public agency, except
that with respect to a person involved in litigation, the
records sought shall be disclosed in accordance with the
rules of procedure applicable in a court or an administrative
adjudication. In this section, "involved in
litigation" means a party to litigation or representing
a party to litigation, including obtaining public records for
the party.
Basey
was unquestionably "involved in litigation" when he
submitted his records requests, but he asserts that the
exception does not apply because he was not involved in
litigation with a public agency. Rather, he was
involved in litigation with individual state officers he sued
in their personal capacity. The State responds that the
exception applies but does not cite any authority for its
position or otherwise develop its argument.[20] Implicit in
the State's unsupported argument is a contention that the
litigation exception applies whenever the requestor is
involved in litigation, regardless of whether a public agency
is a party to the litigation.
Both
Basey's narrow reading of the litigation exception and
the State's broad reading are plausible on the face of AS
40.25.122: the statute's first clause refers to
"litigation . . . involving a public agency, " but
the second clause - containing the exception-refers only to
"litigation." Basey's is the more natural
construction, though. Generally, "each part... of a
statute should be construed with every other part... so as to
produce a harmonious whole."[21] The litigation exception
contained in the second clause of AS 40.25.122 is an apparent
exception to the first clause: the clauses are joined with
the conjunction "except, " and they both refer to
the same subject matter. When the clauses are read together,
the litigation exception exempts from disclosure certain
records otherwise disclosable under the first clause of the
section-that is, certain records "used for, included in,
or relevant to litigation... involving a public
agency."[22] The exception therefore applies only
when the litigation involves a public agency.
The
history of the litigation exception confirms this
interpretation. The apparent precursor to AS 40.25.122 is a
regulation drafted by the Department of Law and adopted in
1982. Former 6 Alaska Administrative Code (AAC) 95.150
provided that if a "requestor ... is in litigation
with an agency in a judicial or administrative
forum, disclosure of. . . records relevant to that litigation
or reasonably likely to lead to the discovery of relevant
evidence is governed by the rules or orders in that
forum."[23] In a letter presenting 6 AAC 95.150 and
related regulations, Attorney General Wilson Condon explained
that the regulation was a response to an "attempt"
the preceding year "by an attorney in the midst of
litigation to carry on discovery of evidence outside the
parameters of the court rules."[24] According to Attorney
General Condon, the attorney's use of the Public Records
Act to obtain discovery had "intruded on the state's
ability to present its case at trial since the state's
witnesses had to divert their attention from the trial to
respond to the requests."[25]
The
legislature took up this issue eight years later in 1990 when
it enacted House Bill (H.B.) 405, a significant overhaul of
the Public Records Act.[26] According to Assistant Attorney
General Jeff Bush, who testified in support of H.B. 405, the
Department of Law "worked closely" with the
bill's sponsor, Representative Kay Brown, in coming to a
final version of the bill.[27] The bill did not contain a
litigation exception when it first passed the
House.[28] But Representative Brown suggested in a
memorandum to Pat Pourchot, the Chair of the Senate State
Affairs Committee, that "a provision relating to public
records involved in litigation" be added.[29] The proposed
litigation provision was "OK with Dept. of
Law/[Assistant Attorney General] Bush, " according to a
handwritten note on Senator Pourchot's copy of the
memorandum.[30] The provision made it into the Senate
State Affairs Committee substitute[31] and ultimately into the
enacted statute, [32] and it is now codified at AS
40.25.122.[33] After the Senate's version of H.B.
405 had passed both chambers, Attorney General Douglas Baily
sent a bill review letter to Governor Steve Cowper in which
he discussed the litigation exception.[34] He wrote that
AS 40.25.122 was "consistent with ... 6 AAC 95.150 and
[did] not change existing law."[35]
The
foregoing history shows that the litigation exception was
initially conceived to protect the State during litigation -
to ensure that the State receives the protections afforded by
the rules of discovery. Attorney General Condon cited this
purpose when he presented former 6 AAC 95.150, and in fact 6
AAC 95.150 only applied when the requestor was in
"litigation with an agency." There is no indication
that the legislature intended a different purpose when it
enacted AS 40.25.122. To the contrary, the Department of
Law's substantial involvement in drafting H.B. 405 and
its approval of adding a litigation provision to the bill
suggest that AS 40.25.122 was intended as a statutory
replacement for 6 AAC 95.150. Attorney General Baily's
contemporaneous interpretation of AS 40.25.122 strongly
supports this conclusion.[36] The history of the litigation
exception thus indicates the exception was intended to apply
only when the requestor is involved in litigation
"involving a public agency."[37]
Former
Attorney General Bruce Botelho reached the same conclusion in
a 1994 informal opinion.[38] He referred to the legislative
history, citing Attorney General Baily's bill review
letter and former 6 AAC 95.150.[39] He further explained that
"[t]here are legitimate public policy reasons for
differentiating between record requests made by parties
involved in litigation against the state and those made by
other parties":
When the state is involved in the litigation, requiring the
discovery rules to apply to documents sought by the other
side ensures that the state is not disadvantaged in
litigation by its public records statutes. ... [I]t ensures
equal footing for the state. This analysis simply does not
apply when the state isn't a party to the
litigation.[40]
Attorney
General Botelho briefly addressed this issue again in a
formal opinion to the Commissioner of the Department of
Public Safety on "requests for public release of... law
enforcement records."[41] There too he concluded that
the litigation exception applies only to "records sought
in conjunction with litigation involving the
State."[42] He explained that the purpose of the
exception was to "ensure[] that the state and its
agencies are given the same protections afforded all
litigants by the court rules governing discovery even when
the documents sought are public records."[43] We find the
reasoning in these opinions persuasive, and the State does
not repudiate the opinions or otherwise attack their
reasoning.[44]
Finally,
we note that we endorsed Basey's narrow interpretation of
AS 40.25.122 in Brady v. State.[45] We wrote that
the statute "limits access to otherwise public records
by 'person[s] involved in litigation' with the
State."[46] That case did not present the question
whether the litigation exception applies only when the
requestor is involved in litigation with a public agency or
applies more broadly, [47] and thus our interpretation of AS
40.25.122 in Brady is perhaps dictum.[ ...