Press Release

Attorney General Issues Statement Regarding Irwin Memorandum

October 27, 2005

(Anchorage) – Attorney General David Márquez today addresses questions raised by the media regarding Commissioner Tom Irwin's Request for Legal Advice.

Department of Natural Resources Commissioner Tom Irwin sent a memorandum dated October 20, 2005, requesting advice from the attorney general regarding negotiations with the Producers under the Alaska Stranded Gas Development Act. At the request of the Governor, the Department of Law prepared a response to Commissioner Irwin's inquiries. This response is being made public and is included with this statement.
The Department of Law has reviewed and responded fully to Commissioner Irwin's questions. However, it should be noted that:

  1. The issues raised by the Commissioner are largely, if not entirely, policy questions, not legal questions, and as such are within the purview of the governor and the legislature to resolve.
  2. The suggestion that Administration officials do not currently have authority to negotiate with the Producers is plainly incorrect. The Governor has broad authority to negotiate contracts on the state's behalf and to propose legislation, with or without the SGDA. The Administration will not enter into a SGDA contract without legislative approval.
  3. The process for approval under the Alaska Stranded Gas Development Act that will be followed for any contract that may be developed, provides for the opportunity for public and legislative comment, including discussion and debate about the issues raised by the Commissioner, the attendant preliminary findings, all aspects of the proposed contract and any statutory changes that may be offered with the draft contract. The process provides important checks and balances among the public, the legislature and the administration in the resolution of the issues raised by the Commissioner and any other important issues that may be raised in the process. It may result in proposed amendments to the draft contract, and ultimately the contract must be approved by the legislature.
  4. The questions set forth in the Commissioner's memorandum have been recognized and discussed among the gas cabinet members and their staffs, the Governor's staff, and with members of the legislature for weeks and months. There has been acknowledgment that these policy issues will have to be resolved by the Governor and the legislature and that supportive or curative legislation will be needed.

Several members of the Alaska media have asked questions regarding the release of Commissioner Irwin's memorandum to the media and the legality of doing so. Governor Murkowski was fully within his rights as governor of the State of Alaska to distribute the memorandum.
Under the Stranded Gas Development Act, the governor and his administration, as the lead members of the state's negotiating team, hold the right to confidentiality with respect to the advice tendered by all members of that team. Even though records regarding state positions related to negotiations under the Act are not public records under AS 43.82.310, the Governor has discretion to release those records if he chooses.
It is important to note that there was no reference to confidentiality or privilege on the face of the memorandum or the email by which it was transmitted to the Attorney General. Also three people within the Department of Natural Resource received copies of the memorandum by email and the memorandum was emailed to three offices of the Governor, in Anchorage, Fairbanks and Juneau. This appears inconsistent with how material would be transmitted where confidentiality was important. Moreover, information provided to the administration indicates that the document was reviewed by a person outside the administration prior to it being sent to the Department of Law, calling into question any claim of confidentiality by the state. The attorney client communication protects a party from being compelled to disclose that communication. That protection can be waived.

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