Alaska Comm. R. Evid., art. V, V
Article V provides for eight different privileges and recognizes that other privileges may be created by statute or court rule. Because most of the privileges covered by Article V were recognized before the adoption of these Rules, the Reporter's Comments do not attempt to state the rationales for the various privileges and to justify them. Most of the privileges have been debated elsewhere, and the privileges have survived the debate. The Reporter's Comments accompanying the various rules do explain, however, why particular approaches to defining rules were taken and why others were rejected.
Two rules of privilege which are found in several jurisdictions are omitted from these rules. One is the privilege for official information; the other is the privilege previously provided by Rule 43(h) (7), Alaska R. Civ. P., covering evidence tending to degrade the character of a witness. This Comment explains the omissions.
The Wigmore treatise, 8 Wigmore on Evidence § 2378, at 807-08, (J. McNaughton rev. 1961), states that the best collection of arguments in favor of an official information privilege is as follows (quoting Gellhorn & Byse, Administrative Law Cases and Comments 617-18 (4th ed. 1960):
[The discussion relates to the SEC and summarizes that agency's brief in a federal case]. The documents and testimony relating to intra-agency discussions, communications, memoranda, reports, recommendations, positions taken at staff and Commission level with respect to the investigation and possible injunctive or criminal action are protected for the following reasons:
Assuming that similar arguments would be made by state officials and by most government officers and agencies in favor of a privilege, the fact is that these arguments are not convincing. The first argument is that intra-agency memoranda and reports are not official records. This begs the question. Such reports and memoranda may not be legally binding on third persons, but they may be admissible, if relevant, against the agency in litigation. The important thing is that they will rarely be relevant and thus will not often be disclosed under governing discovery rules. The second argument is that since courts cannot control non-action, the court cannot review non-public aspects of agency work. But if non-public aspects of agency work are relevant to a lawsuit, the court is not reviewing the action of the agency under an Administrative Procedure Act; it is deciding a lawsuit which is something that lies within the powers granted the state judiciary under the Alaska Constitution. The third argument is that investigative functions of agencies are like those of a grand jury and are therefore immune from scrutiny. Once again the question is begged and the analogy inappropriate since grand jury proceedings are disclosed under some circumstances. The work product argument fails because the "work product" doctrine can exist in the absence of an absolute privilege. Another argument, that the decisional process of an agency is immune from judicial probing, states a conclusion, not an argument. The opposite conclusion is available also. That much of the information is covered by the attorney-client privilege suggests that another privilege may not be necessary. The next to the last argument is that a government based on separation of powers requires that the judiciary stay its hand when asked to intervene into the internal affairs of an agency. But checks and balances are as real as separation of powers. In fact, the ultimate judicial check of review over agency matters suggests that the agency is not beyond the reach of the courts. Finally, the notion that public disclosure of trivia and possible falsehoods might work grave injury and injustice to members of the community assumes that courts are without power to protect against oppressive disclosure, something which is not true.
It is difficult to see why a government agency should be given a greater privilege than a corporation is given to protect its secrets. Yet, the Model Code of Evidence rule 228 and Uniform Rule 34 (1953) recognized a privilege for official information. Proposed Federal Rule 509 also recognized such a privilege, as do Rule 508, Maine Rules of Evidence (West 1978); Nebraska Rule 509; N.J. Stat. Ann. 2A:84A-34 (West 1976); Rule 34, Utah Rules of Evidence (1977); and V.I. Code Ann. tit. 5, § 862 (1967) (Virgin Islands). In refusing to recognize an official information privilege, Alaska rules take the view that in the rare case when internal government documents would be relevant to litigation, they should be disclosed. Protective orders under the discovery rules are available to mitigate any unfortunate consequences that might flow from this position. Also, the legislature remains free to enact statutes to protect certain information that may be especially sensitive.
Nothing in these Rules speaks to the various constitutional issues that may arise when a privilege is claimed. For example, these rules do not attempt to decide whether the doctrine of separation of powers implies a constitutionally based executive privilege. See generally United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039 (1974). Nor do these rules discuss constitutionally based claims of legislative privilege. See generally Gravel v. United States, 408 U.S. 606, 33 L. Ed. 2d 583 (1972).
The other privilege that is omitted by these rules is the one that would allow a witness to refuse to disclose in any action "any matter that will have a direct tendency to degrade his character" unless the exercise of the privilege would prevent a party from obtaining information relating to a fact in issue or to a fact from which the fact in issue would be presumed. Since Rule 404 is designed to protect against certain embarrassing disclosures, and Rule 608 bars any inquiry into prior bad acts not the subject of a criminal conviction used for impeachment purposes, no privilege is necessary under these Rules. Were it not for these two rules, it might be necessary to add some sort of a privilege to make it clear that the court is to balance the impact of questioning on a witness against the need of a party for evidence, as well as to balance the prejudicial effect of certain evidence on one party against the beneficial effect on another party. While there may be embarrassing details not covered by Rules 404 and 608, they do not seem to present a sufficient danger to warrant the creation of a privilege.
Rule 501 speaks of statutory privileges. Whether any particular privilege is more substantive or procedural need not be decided. The purposes served by most privileges are such that they can be equally well served by the creation of substantive rights by the legislature or procedural rights by the courts. There may be cases in which a determination of their character-- i.e., procedural or substantive -- will have to be made in order to decide whether article IV, section 15 of the Alaska Constitution has been satisfied (requiring a two-thirds vote of the legislature to supersede rules of practice and procedure promulgated by the Supreme Court). But such cases may never arise and it would be premature to comment upon them in advance.
Alaska Comm. R. Evid., art. V, V