Nebraska governor’s use of ‘executive privilege’ to withhold records troubles transparency advocates

Governor’s spokesperson says office 'has responded to all public records requests in accordance with the law'
Jim Pillen
Posted at 12:36 PM, Aug 19, 2023

Before he took office, Gov. Jim Pillen joked about phone conversations being exempt from public disclosure. Now, his administration has taken what seems to be an unprecedented step to shield the governor’s communications.

Pillen’s staff denied the Flatwater Free Press access to four emails the governor sent, in part citing “executive privilege” — a phrase absent from Nebraska’s public records laws.

A half-dozen former and current officials and advocates who spoke to the Flatwater Free Press couldn’t recall any other Nebraska governors who invoked executive privilege to deny access to records. A couple said they were alarmed by the privilege claim, which governors elsewhere have employed to rebuff access.

One press freedom advocate described its apparently novel use in Nebraska — and the lack of further explanation from the governor’s office — as “disturbing.”

Former Gov. Dave Heineman, a Republican who served from 2005 to 2015, said he’s unfamiliar with the concept of executive privilege relative to governors’ emails. He supports full transparency, he said, with narrow exceptions for things like unresolved personnel or legal matters.

“When you're the governor, you’re a publicly elected official and your records are subject to freedom of information requests, and we routinely complied with those,” Heineman said. “I think that's important, because the public has a right to know what a governor is doing and the kinds of emails that we get.”

Jack Gould, a board member with open government group Common Cause Nebraska since 1985, said this is the first time he’s heard of a Nebraska governor invoking “executive privilege” to deny records.

Sen. Danielle Conrad, a Democrat from Lincoln, lawyer, and former head of the state ACLU, also couldn’t remember a case. The current ACLU Nebraska legal director couldn’t either.

Allen Beermann, emeritus executive director of the Nebraska Press Association and former Nebraska secretary of state, couldn’t remember a specific example from a former governor, but said he could imagine an appropriate use of executive privilege.

“I'm just hoping that the governor conversed with the attorney general,” he said.

The Flatwater Free Press has asked three times for emails the governor has sent since he took office in January.

In April, legal counsel Maureen Larsen provided a handful of email threads and withheld four records, writing that they were “protected by executive privilege.” A subset of records, she wrote, “are also protected by deliberative process privilege” and an exception in state law allowing officials to withhold some information to protect public safety.

In response to Flatwater’s two other requests, Larsen said there were no records.

It means the governor sent just that handful of emails during his first five months in office that were considered public record and hadn’t sent any text or chat messages. Spokesperson Laura Strimple said that Pillen communicates by phone or in-person.

“The bulk of constituent inquiries are submitted through a portal on the Governor’s website,” she wrote in an email to Flatwater Free Press. “Letters are distributed to subject matter experts on the Governor’s staff or to the appropriate agency for review and response. If they are of a personal nature, the Governor responds on his own.”

A mid-July review of the office’s other denial letters showed that Pillen’s administration had denied access to records three times, and this was the only time it cited executive or deliberative process privilege.

Neither is among the exceptions that allow public officials to withhold records under Nebraska public records laws. Neither is mentioned in Nebraska’s Constitution.

Staff did not directly answer requests to cite statute and describe the contents of the records that were withheld. State law requires agencies to do both.

Instead, Strimple responded: “The Governor’s Office has responded to all public records requests in accordance with the law.”

Sen. Tom Brewer, a Republican from Gordon and chair of the committee that handles bills related to public records, agreed. He said he consulted with legal counsel and didn’t think the governor’s office had violated state law. He said he fears a “side-effect” of the requests will be that people send very few emails.

“If I was them and any email I send comes under everyone’s scrutiny,” he wrote in an email, “I would rarely ever send an email.”

What’s in the emails matters, said ACLU Nebraska legal director Rose Godinez, to determine their importance and any consequences of withholding them.

“We would encourage Gov. Pillen to describe the documents, as required by statute, that are being withheld,” she said.

A broad application of executive privilege would be “alarming,” according to Conrad, who said she couldn’t interpret whether that’s what the governor was doing in this case.

The denial alarmed national experts in government transparency. Adam Marshall, a senior staff attorney with the Reporters Committee for Freedom of the Press, called it “disturbing” that the governor’s office cited a legal theory for apparently the first time and didn’t provide additional information.

“I think the governor’s office owes the public an explanation of what it’s doing and why it’s doing it,” Marshall said.

Laura Ebke, senior fellow at the Platte Institute and former state senator, said that – if you accept that there is executive privilege – she believes it should have clear and specific guidelines, and that those guidelines should be cited when it’s invoked.

Nebraska journalists use public records in reporting that influences government operations and provides the public important information.

A lieutenant governor abruptly resigned in 2013 after Omaha World-Herald reporters found 2,300 calls to women other than his wife in his state cell phone records.

And public records released to The World-Herald in 2021 showed that officials knew Nebraska wouldn’t be reimbursed for deploying state troopers to the Texas border, despite public statements suggesting otherwise.

Lawyers, lawmakers, political parties, interest groups, and citizens who simply want more information about the work of their government also frequently use the law.

“The governor’s not saying no to the Flatwater Free Press, he’s saying no to 2 million people – he’s shutting down 2 million people from getting information that they’re probably entitled to see,” said David Cuillier, director of the Joseph L. Brechner Freedom of Information Project at the University of Florida.

The Flatwater Free Press did not find the phrase "executive privilege" in archived denial letters from Heineman’s administration.

The governor’s office is required to keep such records for 10 years. However, the Flatwater Free Press was not able to inspect denial letters from the administration of Pete Ricketts, who preceded Pillen. History Nebraska, which maintains archived state records, said it didn’t have these records from Ricketts’ time. Pillen’s office also said it didn’t have the records.

Strimple said Pillen’s office couldn’t speak to whether former administrations had asserted executive or deliberative process privilege.

“They are not novel concepts and have been used in other states,” she wrote. “These types of privilege have been upheld by the U.S. Supreme Court … and are consistent with established NE Supreme Court precedence.”

According to an article in Journalism Quarterly, by 1994 supreme courts in half a dozen states had ruled that governors could use executive privilege to limit access to some records.

About 10 years ago, the supreme courts in Washington and Oklahoma ruled that it exists in some situations. Since 2020, the governors of Tennessee, Montana, Alabama and Florida have invoked executive privilege to deny records, according to news reports.

Cuillier said that historically this has not been a party-line issue.

“Those in power want to keep their power,” he said. “Information is power, so you keep it to yourself.”

In Nebraska, lawyers interviewed for this story all pointed to the same 2017 state Supreme Court case: State ex rel. Veskrna v. Steel, in which the court recognized a privilege that protects judges’ deliberations, with limitations, because of the separation of powers between the legislative and judicial branches. Dave Lopez, former assistant attorney general who’s now Pillen’s chief of staff, was one of the state’s lawyers in the case.

The court didn’t weigh in on executive privilege but referenced an opinion during the Nixon administration in which the Supreme Court first recognized it: “We note with approval that the U.S. Supreme Court has rejected overly broad claims of executive privilege to shield records from similar public disclosure laws,” the Nebraska opinion reads.

The Nebraska court saw the potential for abuse, said Kyle Langvardt, a law professor at the University of Nebraska-Lincoln. Based on that opinion, he said he thinks it’s more likely than not that the state Supreme Court would find some kind of an executive privilege exists, with limitations.

“It's probably not an absolute privilege,” he said. “You can't just make these blanket claims about executive privilege. That tends not to go too well in court, either at the federal level or in other states.”

This is not the first time Pillen has defied expectations regarding access. During his campaign, he declined to debate other candidates publicly.

Speaking at the state’s Center for Operational Excellence summit in December, he made a joke that implied secrecy was a benefit of phone calls.

“I’m learning … when you have phone conversations, they’re not (at the discretion of) open meetings laws,” Pillen quipped with a smile.

In March, the Omaha World-Herald reported that he broke with over three decades of governors by not releasing public schedules.

Strimple, his spokesperson, said Pillen is “very accessible.”

“Since taking office, he has attended hundreds of events across the state, including Lincoln and Omaha,” she said. “Events organized by the office or those which involve other agencies or organizations typically accompany prior notice to the media.”

Conrad said she’s seen a trend away from transparency at all levels of government in recent years, and that the “executive privilege” claim may represent a continuation of that trend. She introduced a bill meant to improve state public records law earlier this year. It didn’t advance out of committee.

The Platte Institute’s Ebke said that transparency is especially important now, when many people already distrust their government. In a 2022 study from the Pew Research Center, only 20% of Americans said they trusted the federal government to do the right thing just about always or most of the time.

“Public officials should do everything they can to shed light on things so that people have less reason to lack trust,” Ebke said.

The Flatwater Free Press is Nebraska’s first independent, nonprofit newsroom focused on investigations and feature stories that matter.

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