Allsop v. Cheyenne Newspapers, Inc.

GOLDEN, J.,

dissenting.

[¶32] Allsop, acting in his official capacity as custodian of the Cox Report, determined that the report was exempt from public disclosure under Wyo. Stat. Ann. § 16-4-203(b)(i). As the majority opinion points out, Newspaper agrees that the Cox Report falls within that exemption.7 The main issue argued below was whether the Cox Report could be withheld because its disclosure would be contrary to the public interest. The district court ordered the disclosure of a redacted version of the Cox Report. Thus, implicitly, the district court found that the disclosure of the Cox Report would be contrary to the public interest unless certain portions of the report were redacted.8 The correct narrow question posed in this appeal, then, concerns the statutory authority of the district court to order Allsop to release the Cox Report in redacted form.9 Because I do not agree that the statutory language at issue grants the district court authority to order redaction, I must respectfully dissent.

[¶33] In addition to § 16-4-203(b)(i), Wyo. Stat. Ann., § 16-4-203(f) (LexisNexis 2001) is also pertinent to this appeal. Subsection 203(f) states:

Any person denied the right to inspect any record covered by this act may apply to the district court of the district wherein the record is found for any order directing the custodian of the record to show cause why he should not permit the inspection of the record.

When read as a whole, the statutory language is unambiguous. The legislature has determined that the custodian makes the initial determination regarding the exempt status of a record, subject only to having to explain his reasoning to the district court via a show cause proceeding. If the custodian successfully bears his burden of showing that an exemption applies to a given record and that the release of the record would be contrary to the public interest, that is the end of the judicial inquiry. The statutes extend no further authority to the district court.

[¶34] I fully agree that the purpose of the Wyoming Public Records Act (WPRA) is to allow disclosure of information. However, *1103the legislature did include several exemptions to disclosure. While these exemptions must be interpreted narrowly, this Court does not have authority to move beyond the language selected by the Legislature. As this Court stated in Allied-Signal, Inc. v. Wyoming State Bd. of Equalization, 813 P.2d 214 (Wyo.1991):

Legislative intent must be ascertained initially and primarily from the words used in the statute. Phillips v. Duro-Last Roofing, Inc., 806 P.2d 834 (Wyo.1991); Wyoming Workers' Comp. v. Halstead, 795 P.2d 760 (Wyo.1990); Halliburton Co. v. McAdams, Roux & Associates, Inc., 773 P.2d 153 (Wyo.1989); Dept. of Revenue and Taxation of State of Wyo. v. Hamilton, 743 P.2d 877 (Wyo.1987); Huber v. City of Casper, 727 P.2d 1002 (Wyo.1986); In re Adoption of MM, 652 P.2d 974 (Wyo.1982); Oroz v. Hayes, 598 P.2d 432 (Wyo.1979); Seyfang v. Board of Trustees of Washakie County School Dist. No. 1, 563 P.2d 1376 (Wyo.1977). When the words used are clear and unambiguous, a court risks an impermissible substitution of its own views, or those of others, for the intent of the legislature if any effort is made to interpret or construe statutes on any basis other than the language invoked by the legislature. Our precedent demonstrates that this rule also is an absolute. If the language selected by the legislature is sufficiently definitive, that language establishes the rule of law. Any additional construction can be resorted to only if the wording is ambiguous or unclear to the point of demonstrating obscurity with respect to the legislative purpose or mandate. Blue Cross Ass'n v. Harris, 664 F.2d 806 (10th Cir.1981); Johnson v. Statewide Collections, Inc., 778 P.2d 93 (Wyo.1989); Wyoming Insurance Dept v. Avemco Ins. Co., 726 P.2d 507 (Wyo.1986); Campbell v. State, 709 P.2d 425 (Wyo.1985); [State Board of Equalization v.] Tenneco [Oil Co., 694 P.2d 97 (Wyo.1985)]. This inhibition upon statutory construction offers assurance that the legislative efforts and determinations of elected representatives will be made effective without judicial adjustment or gloss. Id. at 219-20. This is a perfect example of a case in which judicial restraint is appropriate in order to prevent the addition of any "judicial adjustment or gloss" to the WPRA.

[¶35] The pertinent language in the exemption is the beginning language stating: "[the custodian may deny the right of inspection of the following records." Wyo. Stat. Aun. § 16-4-203(b) (LexisNexis 2001). Clearly, the initial decision regarding access to records belongs to the custodian of the records. Any person denied the right to inspect any public record because the custodian thereof has invoked an exemption is limited to asking the district court for an "order directing the custodian of the record to show cause why he should not permit the inspection of the record." Wyo. Stat. Ann. § 16-4-203(f) (LexisNexis 2001). Both see-tions speak only of "the record," not portions thereof, and the district court's jurisdiction is specifically limited to a show cause proceeding. Thus, the only function of the district court is reviewing the reasons given by the custodian for not releasing the record. If the custodian adequately shows cause why the record should not be released pursuant to the provisions of the WPRA, that is the end of the judicial inquiry.

[¶36] This reading of the statute becomes even clearer when the WPRA is compared with the Federal Freedom of Information Act (FOIA). As the majority opinion points out, the FOIA contains specific provisions requiring redaction. At the end of the section dealing with exemptions there is a general statement mandating that "[aJny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C.A. § 552(b) (West 1996). Under the section authorizing judicial review, the statutory language specifically states that the district court "shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld." 5 U.S.C.A. § 552(a)(4)(B) (West 1996). The WPRA does not contain any such language.

*1104[¶37] The majority opinion seems to suggest that since the FOIA contains such language, we should read such language into the WPRA by analogy. The WPRA, however, contains no such analogous language.

There are ... rules of construction which eventually force us into a corner from which we have little hope of escape. The omission of words from a statute must be considered intentional on the part of the legislature. State v. Reese, 1974, 12 Wash.App. 407, 529 P.2d 1119. Words may not be supplied in a statute where the statute is intelligible without the addition of the alleged omission. Ward v. Yoder, Wyo. 1960, 355 P.2d 371, 376, reh. den., 357 P.2d 180; Montoya v. McManus, 1961, 68 N.M. 381, 362 P.2d 771. Words may not be inserted in a statutory provision under the guise of interpretation. Kirkwood v. Bank of America Nat. Trust & Savings Ass'n, 1954, 48 Cal.2d 333, 273 P.2d 532. The Supreme Court will not read into laws what is not there. Durante v. Consumers Filling Station Company of Cheyenne, 1953, 71 Wyo. 271, 299, 257 P.2d 347, 356; Cook v. Hill, 1960, 224 Or. 565, 356 P.2d 1067. This court will not supply omissions in a statute and redress is with the legislature. Lo Sasso v. Braun, Wyo.1963, 386 P.2d 630, 631-632. We are alerted by all this to the result that it is just as important to recognize what a statute does not say as it is to recognize what it does say.

Matter of Voss' Adoption, 550 P.2d 481, 485 (Wyo.1976).

[¶38] The above-quoted FOIA language regarding redaction was added to the FOIA by amendment in 1974. The Wyoming legislature has never added the same or even analogous language to the WPRA. The omission of such language, especially in light of the presence of specific language in the FOIA, should not be treated by this Court as an oversight by the Wyoming legislature. The legislature has never explicitly given the courts the power to order the release of portions of records, and such authority should not now be read into the WPRA.

[¶39] The majority opinion claims that the addition of the language requiring redaction now found in the FOIA was simply a codification of a judicially created remedy. I do not believe this to be an accurate statement. In a decision issued before the 1974 amendments to the FOIA adding the redaction requirements, the United States Supreme Court determined that judicial inspection and redaction was not authorized under at least one exemption in the FOIA. In EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), certain members of Congress were attempting to gain access to specific Executive Branch records concerning a scheduled underground nuclear test. Access to these documents was denied based upon two distinct exemptions. The first exemption claimed was an exemption for documents "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." Id. at 80, 93 S.Ct. at 833. The second exemption claimed was an exemption for "inter-agency or intra-agen-cy memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."10 Id. at 85 n. 11, 93 S.Ct. at 835 n. 11. The District Court found that the documents at issue were exempt from compelled disclosure for the reasons given,. The Court of Appeals reversed, holding that an inquiry into the appropriateness of redaction was required for records in both categories of exemptions and any information falling outside the stated exemption should be released.

[T The United States Supreme Court analyzed each exemption separately. Re*1105garding the first exemption, the Supreme Court held that the district court did not have authority to inspect or order redaction of any document falling within the first exemption. The Supreme Court reasoned quite simply that the statutory language at issue only authorized the district court to determine if the record was subject to an appropriate Executive order. Evidence was presented that certain documents were subject to an appropriate Executive order, leading the Supreme Court to conclude that, with regards to these documents, the "petitioners had met their burden of demonstrating that the documents were entitled to protection under [the pertinent exemption], and the duty of the District Court ... was therefore at an end." Id. at 84, 93 S.Ct. at 834-35.

[¶41] While acknowledging that there may be room for criticism of the resulting limitation of judicial review, the Supreme Court deferred to what it considered to be Congressional intent as evidenced by the pertinent statutory language. As Justice Stewart stated in his concurring opinion, Congress "has built into the Freedom of Information Act an exemption that provides no means to question an Executive decision to stamp a document 'secret, however eynical, myopic, or even corrupt that decision might have been. .... Congress chose, instead, to decree blind acceptance of Executive fiat." Id. at 95, 93 S.Ct. at 840.

[¶42] Regarding the second exemption claimed, the Supreme Court again analyzed the precise statutory language used by Congress. On the issue of redaction, the Supreme Court focused on the language of the statute that allowed parties to receive records under the same rules as if they were in litigation with the custodial agency. The Supreme Court interpreted this statutory language to mean that Congress expected the rules of discovery to be applied, at least "by way of rough analogies." Id. at 86, 93 S.Ct. at 835. In discovery, upon a claim of privilege, severing information from documents is common and "courts often [are] required to examine the disputed document in camera, in order to determine which should be turned over or withheld." Id. at 88, 93 S.Ct. at 836. The Supreme Court reasoned that Congress was expected to know of this common practice and therefore judicial inspection and redaction was anticipated. Thus, any record for which this particular exemption is claimed potentially could be subjected to judicial in camera review and judicially mandated redaction and disclosure.

[¶48] In Mink, the United States Supreme Court stayed true to the language employed by Congress in the FOIA. It did not judicially create a remedy of inspection and redaction that had no basis in the language of the FOIA. In fact, the Supreme Court specifically rejected the suggestion that such a remedy was implicit in the FOIA. Congress amended the FOIA the year after Mink was decided to include provisions for redaction for records sought to be withheld under all listed exemptions. Given this background, I fail to see how the pertinent Congressional amendment to the FOIA constituted "a legislative adoption of a court created remedy" as stated in the majority opinion.

[¶44] I find the reasoning in Mink to be very persuasive. The doctrine of separation of powers mandates that we apply the law as written. The exemption at issue provides for the custodian to make the decision regarding disclosure of a record. The custodian is not required under the terms of the pertinent exemption to examine the record and segregate exempt portions from nonexempt portions. In terms of judicial review, the Wyoming legislature specifically has limited judicial review of the claim of an exemption under the WPRA to making a decision under an order to show cause. There is no legislative authority for the district court to order redaction of portions of an otherwise exempt record. This Court should restrain its statutory interpretation and abide by the dictates of the legislature. Questions regarding the wisdom of the limits of such judicial review are for the legislature, not this Court, to decide.

[¶45] In the final analysis the Legislature must answer to an informed, and perhaps ultimately aroused, public opinion for its action. We may not substitute our judgment for its own. The forum for the correction of *1106ill-considered legislation is a responsive legislature.

. Despite the declared intention of the majority opinion to "very carefully limit our review of this matter to those issues which were raised in the district court," the majority opinion immediately proceeds to offer an entire section related to whether the Cox Report falls within the claimed exemption. The majority opinion presents the section as "guidance" for future cases. I question both the wisdom and the result of this "guidance."

. The majority opinion offers a section regarding whether Allsop adequately demonstrated that disclosure of the Cox Report was contrary to the public interest. In my view, that issue is not properly before this Court on appeal. The correct narrow issue raised by Appellant Allsop concerns the authority of the district court to order redaction. Having said that, I will, nevertheless, briefly comment on the serious deficiencies that exist in the statute regarding judicial review of the determination whether disclosure of an exempted record is or is not contrary to the public interest. In the pertinent statutory provisions, Wyo. Stat. Ann. §§ 16-4-203(e) and (F), the legislature has not provided the district court, before which the show cause proceeding is conducted, any guidance regarding the various factors, and the weight properly to be given to each, to consider when reviewing the custodian's showing that disclosure would be contrary to the public interest. In the instant case, Allsop showed cause, presenting evidence in the form of affidavits of undisputed experts on jail security operations. Newspaper did not present evidence contradicting Allsop's showing. Nothwithsitanding Allsop's showing, the district court, without evi-dentiary support, concluded that disclosure would not be contrary to the public interest. It is elementary that a court may not substitute its own factually unsupported opinion for the factually supported showing of a party litigant. In the absence of legislatively declared factors that inform judicial review of "public interest" determinations, the risk of arbitrary and capricious judicial decision-making is unacceptably high.

. This Court has never been faced with the issue of whether a custodian of a record is required under the WPRA to redact information in an individual record. Sheridan Newspapers Inc. v. City of Sheridan, 660 P.2d 785 (Wyo.1983), does contain language regarding redaction of information within individual records. Such language must properly be classified as dicta, as such issue was not properly before the Sheridan Court.

. The WPRA has a substantially similar exemption, Wyo. Stat, Ann. § 16-4-203(b)(v). It is interesting that the very reason for this exemption in the FOIA is to encourage the free and open exchange of ideas, opinions and critiques between and within government agencies during the process of deliberation and policy making. The U.S. Congress recognized that the desired openness and frankness of discussion within the government might not be achievable if all records thereof are open to public scrutiny. See Mink at 87, 93 S.Ct. at 836. Footnote six of the majority opinion seems to disavow this reasoning. Because of the requirement under the WPRA that a record can be withheld only if it fits within a delineated exemption and its disclosure would be contrary to the public interest, the disavowal of the public policy behind the exemption calls the application of this exemption needlessly into question.