Gov. Bobby Jindal’s executive counsel suggested LSU reject public records requests for documents related to budget cuts and privatization efforts at LSU’s public hospitals, according to a letter from the LSU system’s outside counsel.
The letter to LSU system President William Jenkins, obtained Friday by The Advocate, contradicts earlier assertions by Jindal administration officials that LSU decided on its own how to respond to requests to make the records available publicly. Jindal’s top lawyer, Executive Counsel Liz Murrill, reviewed the records before being released and suggested LSU use the “deliberative process privilege” as grounds to keep some records out of the public domain, the letter stated.
Jindal’s office, through spokesman Kyle Plotkin, asserted last week that the administration had nothing to do with LSU invoking the deliberative process privilege on requests filed by The Advocate in late September.
Deliberative process is a legal term that involves the internal agency mechanics of making a public policy decision. Supporters of the exemption argue that advisers would not feel as free to give unfettered advice if they knew their thoughts could be made public. Louisiana law protects deliberations in the Governor’s office and for agency officials’ recommendations to the governor.
The Aug. 16 letter to Jenkins concerned a request by Tom Aswell, an independent Baton Rouge journalist. Aswell’s public records request was similar to others made by reporters, including those from The Advocate, following the LSU Board of Supervisors decision at the time on how to cut the budgets of several public hospitals. Those initial requests, which were handled by LSU officials whose duties have since been reassigned.
The documents released at the time showed Alan Levine, who was Jindal’s former health secretary and now works in business development for a Florida hospital management company, was advising LSU officials on how to handle the cuts.
Baton Rouge lawyer W. Shelby McKenzie, who has contracted to provide legal advice to the LSU Board, wrote Jenkins in the three-page letter that Aswell’s request “was broader” but otherwise identical to the requests of other reporters. Murrill asked to see the documents LSU was considering releasing to Aswell and concurred with the selection LSU chose to make public, McKenzie wrote.
The documents also were shared for review with Lee Kantrow, a private Baton Rouge lawyer contracted as external counsel for LSU’s University Medical Center Board. The entity is constructing the academic medical center in New Orleans and charged with its management.
“Ms. Murrill’s interest was to inform us of the administration’s request that we assert the deliberative process privilege, where appropriate, in response to public records requests,” McKenzie wrote.
Jenkins did not respond to two requests for comment Friday. McKenzie refused comment, saying he would not discuss communications with him as an attorney.
The Advocate repeatedly asked Murrill for an interview Friday to discuss the letter and the Jindal administration’s position on the deliberative process privilege. She was emailed specific questions in writing. Murrill responded late Friday with a 31-word written statement.
“As executive counsel, I have discussions about the law with LSU’s legal counsel and other agencies,” Murrill wrote. “At the end of the day, it’s the agency’s decision to determine how they respond.”
Plotkin, Jindal’s communications director, had denied on Oct. 9 that Murrill had advised LSU to invoke the deliberative process privilege in connection to The Advocate’s most recent public records request on the issue. When asked why, considering what the Jenkins letter stated, Plotkin said Friday that he was referring only to The Advocate’s request, not to the Jindal administration’s general stance of the release of public records.
The LSU Board of Supervisors, a majority of whom were selected by Jindal, recently approved a plan that cuts more than $150 million from operations of seven south Louisiana hospitals and moved more health care from the public to private sector. The board had announced other budget cuts during the summer.
At the time each of the cuts were announced, The Advocate had sought records that would further detail how the budget was being reduced.
The latest board plan, announced a couple weeks ago, calls for nearly 1,500 employee layoffs, reduces beds and medical services, changes some graduate medical education programs and relies heavily on an increased role of the private health care sector.
Both the budget-cutting proposals came in response to the U.S. Congress reducing the federal share of funding for the Medicaid program, leaving the state to pay more of the costs.
The Jindal administration ordered LSU to cut the budgets of the public hospital system. Jindal administration officials also claim the current LSU hospital system is unsustainable and that the proposed changes would improve not only the quality of health care rendered, but also the training experiences for the state’s future physicians.
McKenzie’s letter to Jenkins also raises legal questions about the Jindal administration’s stance on the deliberative process privilege.
McKenzie went on to explain in the letter to Jenkins, the meaning and history of the deliberative process privilege and Louisiana law concerning the issue.
He wrote: “The express provisions of the statute are not broad enough to apply to the current public records request.” An argument could be raised that the privilege is grounded in constitutional principles “of separation of powers and personal freedom of expression,” he wrote. Those arguments are reasonable, despite not being articulated in state law. Sorting out the issue “is a genuine legal dispute” that only a court can resolve, he wrote.
McKenzie said because the deliberative process “presently is being asserted by multiple Louisiana agencies, it is unlikely that LSU will be the target of any legal attack on the privilege.”