Jeff Landry is withholding records from the public by citing an exemption that's not in law (2024)

As he pushed earlier this year to curtail the access Louisiana residents have to public records, Gov. Jeff Landry drew a culinary analogy, saying restaurant patrons don’t need to see where dinner ingredients come from or how a meal is prepared to enjoy it.

Landry complained that public records had been “weaponized to stifle deliberative speech.” His Republican allies in the Legislature moved to carve out a “deliberative process” exemption to allow government officials to have candid conversations with one another about proposed laws and regulations without fear that those communications could become public.

Even as Landry campaigned for the change to the law – which legislators nixed amid public outcry – he already was citing “deliberative process” and “executive privilege” exemptions to deny some records to members of the public. His administration cited those exemptions even though neither of those phrases currently appear in Louisiana’s public records statute.

A review of Landry’s first five months as governor shows that in nearly a quarter of all public-records requests his office fielded, his attorneys withheld records by citing deliberative process or executive privilege. The documents they withheld for those reasons included records related to Landry’s attempts to expand the death penalty, records dealing with the Louisiana National Guard’s deployment to Mexico and records related to Landry’s travel.

In some cases, Landry’s office withheld records by simply citing the state law that generally refers to records of the governor’s office. And in at least one other case, they cited a constitutional right to privacy as a reason for withholding records about a rash of resignations at the Louisiana Department of Environmental Quality.

“I can’t see the legal justification for it,” said Steven Procopio, president of Louisiana’s nonpartisan Public Affairs Research Center, after reviewing the requests. “Because they’re doing this in a very broad way and using exemptions that don’t seem to have legal standing, it’s preventing the public’s right to know what their government is doing.”

Terry Ryder, who served as a senior attorney to three former Louisiana governors, said Landry’s administration is essentially daring people to sue.

“You just can’t make up law,” Ryder said. “There’s no such thing as executive privilege or deliberative process privilege if it’s not in law.”

Landry’s administration declined to answer detailed questions from The Times-Picayune | The Advocate about their use of deliberative process and executive privilege. Instead, spokesperson Kate Kelly said the office has “never denied a public records request.”

“Every record request has been answered in compliance with the law,” she said. “We may ask for clarification and never hear back from the requester—but we never just deny a request.”

Landry himself opposed the concept of executive privilege in 2022 when, as attorney general, he was a plaintiff in a lawsuit that accused the federal government of colluding with Big Tech to stifle speech. Back then, Landry said the federal Department of Justice “must not be allowed to hide behind the veil of executive privilege."

Former state Rep. Barry Ivey, R-Central, is among those who requested records from Landry’s administration and received a response that some records were being withheld under deliberative process and executive privilege. Ivey sought communications between Landry and members of his executive staff in January about their attempts to close political primaries.

“You have to be concerned when the executive branch wants to make sweeping changes to public records,” Ivey said. “That has to be a red flag for anyone concerned about accountability and government. Partisanship isn’t even part of it.”

After Jindal, public records laws were rewritten without deliberative process

Louisiana once had a deliberative process exemption in state law specifically for the governor’s office that was passed during former Gov. Bobby Jindal’s administration. But he and the Legislature agreed to do away with it once Jindal’s term ended.

Jindal’s office used “deliberative process” as a reason to avoid disclosing many records during his time as governor, setting the tone for other state offices. “Deliberative process” proliferated among cabinet secretaries and other state entities, including LSU.

Jindal’s administration could point to a state statute that allowed them to withhold the records as privileged. The same cannot be said for Landry.

“They did have a core legal argument: there was in fact a deliberative process privilege,” Procopio said. “Whereas now, it doesn’t exist in law.”

Landry’s supporters have leaned on a 2004 ruling from the First Circuit Court of Appeal in Kyle vs. Louisiana Public Service Commission, in which judges mused that a decades-old case in Washington, D.C. contained “an excellent discussion of the deliberative process privilege.”

But Louisiana’s constitution says “no person shall be denied the right” to observe public bodies and examine public records, except in cases in law. The public records statute has one provision that shields some of the governor’s communications, which says “a record of the office of the governor relating to intraoffice communications of the governor and his internal staff may be privileged from disclosure.”

Former state Sen. Dan Claitor, R-Baton Rouge, authored the bill to do away with deliberative process in 2015. He said it was difficult to strike the right balance between giving government officials room to work without preventing the public’s right of access. The public should get to see both what’s “on the surface and under the hood,” Claitor said.

Claitor pointed to the introductory paragraph of the state statute on governor’s records, which states that democracy depends in part on open access to records so that citizens may better understand “the deliberations and decisions that go into making public policy.”

Any “deliberative process” exemption would have had to be created by a Louisiana judge, said Claitor, a lawyer, adding that he is not aware of any judge having done so.

When state Sen. Heather Cloud, R-Turkey Creek, opted in May to shelve her bill gutting the public records law, she warned lawmakers that while they enjoyed “legislative privilege” exemptions, the governor did not – a distinction she portrayed as unfair.

“If the governor has a conversation with (legislative director) Lance Maxwell, it is not protected,” Cloud said on the Senate floor. “That is open for public scrutiny.”

Nonetheless, Landry’s records show at least four instances where his office withheld documents from people who requested communications involving Maxwell. Those seeking records asked for communications between Maxwell and other staffers about a proposed constitutional convention, about Democratic party leadership, about changes to public records law and about puberty blockers for minors. Parts of their requests were withheld under deliberative process and executive privilege exemptions.

Cloud did not return a message for this story.

Attorney General Liz Murrill also pushed for the changes to state public records law, and said in an April news conference that they’ve been applying deliberative process and such an exemption is recognized jurisprudence.

“It is simply intended to allow for frank discussions from high people working with a decision maker that protects that decision-making process,” Murrill said. “It doesn’t hide the decision, it doesn’t hide the implementation of the decision, it doesn’t hide a myriad of other things.”

Out-of-state residents no longer allowed to access governor’s records

While legislators rejected wholesale changes to the state’s public-records law this year, they did agree to limit access to the governor’s records to in-state residents. Members of the public had little chance to weigh in on that change.

State Rep. Julie Emerson, R-Carencro, emerged from a closed-door meeting on the final day of the legislative session and announced the residency requirements had been added to her bill calling for statewide elected officials’ schedules to be kept confidential for seven days after an event. The change garnered enough support to pass, and it went into effect Aug. 1.

“I really couldn’t find any particular reason why someone outside of Louisiana would need that and again, I think we are most accountable to the citizens of Louisiana,” Emerson said on the House floor.

Notably, more than half of the public-records requests filed with Landry’s office during his first several months came from out-of-state requestors.

Alysson Mills, a Louisiana attorney who handles public-records cases, said she worries about how the change will affect ordinary citizens who may not live in-state but are interested in keeping an eye on Louisiana’s government. Corporations and nonprofits that want records from the governor’s office should be able to find workarounds, she said.

Mills also wondered how the change squares with the language in the state’s constitution.

“The specific provision in the constitution says ‘no person’ shall be denied (records),” Mills said. “It doesn’t say, ‘no resident,’ it doesn’t say, ‘no citizen.’”

Among the groups that have denounced the change to Louisiana’s law are American Oversight and Citizens for Responsibility and Ethics in Washington. Both groups have filed public records requests about Landry in recent months and both are based in Washington.

American Oversight filed four requests during Landry’s first several months in office, seeking the governor’s communications about in vitro fertilization, puberty blockers, public records law and more broadly all of the emails he sent. The group said the residency requirements will hamper the flow of information to the people of Louisiana.

“This bill flies in the face of open government, restricting who can ask for records that belong to the public and placing an extra burden on resident requesters who seek to hold the Louisiana governor accountable,” American Oversight said in a statement.

CREW sought communications about the Louisiana National Guard’s deployment to the Mexico border and conversations between Landry and Texas Gov. Greg Abbott. Nikhel Sus, the organization’s deputy chief counsel, said the nonprofit often works with peers in states that limit public records to in-state residents.

“All the states are connected and there are many actions that state officials take that affect other states,” he said. “Out-of-state entities have a very strong interest in accountability and transparency.”