Trombley v. Bellows Falls U.H.S.

TROMBLEY_V_BELLOWS_FALLS_UHS.91-392; 160 Vt. 101; 624 A.2d 857


[Filed 26-Feb-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court,  109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-392


 Patricia Trombley and                        Supreme Court
 Georgia Lique
                                              On Appeal from
      v.                                      Windham Superior Court

 Bellows Falls Union High School              September Term, 1992
 District No. 27, et al.


 Silvio T. Valente, J.

 Stephen L. Fine, Athens, for plaintiffs-appellants

 Lawrence Miller and John Paul Faignant of Miller & Faignant, Rutland,
   for defendants-appellees


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Plaintiffs, residents of the Town of Rockingham, brought
 this action against their local union high school district, its board of
 directors, the chair of the board and the superintendent of the district,
 alleging that the board violated the open meeting law, 1 V.S.A. {{ 311-314,
 and the access to public records act, 1 V.S.A. {{ 315-320, in denying them
 information about a teachers' grievance.  The Windsor Superior Court found
 no violation of either law.  Plaintiffs appeal, arguing that the court mis-
 applied the relevant laws.  We reverse and remand.
      This controversy started when the board reduced the budget for the
 district, in response to voter rejection of an earlier budget, by cutting
 some of the allocation for sports activities.  Three athletic instructors
 complained about the action in a letter, sent out on official high school
 stationery, to voters in the district.  The board, believing that the
 instructors had misused the school letterhead, voted to condemn the actions
 of the instructors.  At a special meeting to reconsider the budget cuts, the
 board read its condemnation statement to the public.
      The three instructors responded by filing a grievance contesting the
 condemnation.  The grievance came before the board on July 19, 1990.  Under
 the contract between the board and the Windham Northeast Education
 Association, the union representing teachers in the district, the grievants
 requested that the grievance be heard in executive session.  The board
 agreed and so heard the grievance, which it denied on July 30, 1990.
      On August 2, 1990, one of the plaintiffs requested to see the grievance
 and the response to it by the board, the superintendent and the principal of
 the high school.  The superintendent denied this request.  Plaintiff
 appealed the superintendent's decision to the chair of the board, who put it
 on the agenda for the next board meeting.  On advice of counsel, the board
 adopted in open session on September 10, 1990, a resolution formally denying
 the grievance for the reasons stated in the July 30th written decision.  The
 board denied plaintiff's appeal on the grounds that the documents requested
 were exempt from disclosure under 1 V.S.A. { 317(b)(7).  This suit followed.
      In a lengthy complaint, plaintiffs sought (1) a declaration that the
 board had violated the open meeting law, together with an injunction
 against further violations, (2) an order requiring disclosure of the
 documents, (3) a declaration that the board chair did not act timely in
 response to the appeal of the superintendent's denial of the documents, and
 (4) costs.  The Windham Northeast Education Association was allowed to
 intervene as a party defendant.  On cross-motions for summary judgment, the
 court dismissed the complaint, holding that the grievance could be
 considered in executive session pursuant to 1 V.S.A. { 313(a)(1), that the
 decision on the grievance was valid, and that the documents are exempt from
 disclosure under 1 V.S.A. { 317(b)(7) because they relate to a personnel
 matter.
      Plaintiffs first attack the court's decision that the grievance could
 be considered in executive session, claiming that the statutory requirements
 were not met. (FN1) Specifically, they argue that the grievance hearing was a
 meeting of a public body that was required to be open to the public under 1
 V.S.A. { 312(a), and that it could not be held in executive session under {
 313(a)(1) because the statutory prerequisite that "premature general public
 knowledge would clearly place the . . . public body[] or person involved at
 a substantial disadvantage" was not present. (FN2) Defendants argue, and the
 court held, that the language quoted above is an expression of why the
 Legislature found that grievances could be conducted in private, and not a
 prerequisite to an executive session in each case.
      The open meeting law implements the command of Chapter I, Article 6 of
 the Vermont Constitution that officers of government are "trustees and
 servants" of the people and are "at all times, in a legal way, accountable
 to them."  See 1 V.S.A. { 311; Animal Legal Defense Fund, Inc. v.
 Institutional Animal Care and Use Committee, 3 Vt. L.W. 309, 309 (Aug. 28,
 1992).  Although this Court has not previously addressed the question,
 courts in other jurisdictions have held that similar public meeting laws are
 entitled to a liberal construction in support of the goal of open access to
 public meetings for members of the public.  See, e.g., Hinds County Board of
 Supervisors v. Common Cause, 551 So. 2d 107, 110 (Miss. 1989); Grein v.
 Board of Education, 343 N.W.2d 718, 723 (Neb. 1984).  Exemptions to these
 laws must be strictly construed.  See, e.g., Board of Police Commissioners
 v. Freedom of Information Commission, 470 A.2d 1209, 1212 (Conn. 1984);
 Orford Teachers Association v. Watson, 427 A.2d 21, 23 (N.H. 1981).
 Further, in construing a statute, we presume that language is inserted in a
 statute advisedly.  Clymer v. Webster, 156 Vt. 614, 625, 596 A.2d 905, 912
 (1991).  Thus, we do not construe the statute "in a way that renders a
 significant part of it pure surplusage."  State v. Beattie, 157 Vt. 162,
 165, 596 A.2d 919, 921 (1991).
      Although the open meeting exemption in question covers consideration of
 grievances, it is subject to a proviso that requires circumstances "where
 premature general public knowledge would clearly place the . . . public
 body, or person involved at a substantial disadvantage." (FN3) 1 V.S.A. {
 313(a)(1).  The board did not make a finding that the proviso applied in
 this case and defendants do not seriously contend that it could have made
 such a finding.  The condemnation that the teachers grieved was public, as
 was the reason for the condemnation.  There is no reason why "premature
 general public knowledge" would disadvantage the teachers or the board.
 Indeed, it is not the timing of disclosure that is in issue; defendants want
 to prevent disclosure at any time.
      We cannot accept the trial court's conclusion that the proviso is
 merely a statement of policy and not a requirement.  That conclusion is
 inconsistent with our canons of statutory construction and serves to
 expand, rather than strictly construe, the access exemption.  Apparently,
 the trial court felt that application of the proviso in each individual case
 would be unworkable.  We cannot agree.  Open meeting laws exist in every
 state and at the federal level.  See Note, New Jersey's Open Public
 Meetings Act:  Has Five Years Brought "Sunshine" Over the Garden State, 12
 Rutgers L.J. 561, 561-62 nn.4 & 5 (1981) (itemizing the state statutes and
 the federal statute).  Most jurisdictions have personal privacy exemptions
 that require a public agency to evaluate the impact of public access in each
 case before it.  See, e.g., Common Cause v. Nuclear Regulatory Commission,
 674 F.2d 921, 932-33, 938 (D.C. Cir. 1982) (evaluating exemptions 9(B) and 6
 of the Federal Sunshine Act); Attorney General v. School Committee of
 Northampton, 375 N.E.2d 1188, 1190 (Mass. 1978).  It is not unworkable for
 a public body to make a careful analysis of need before deciding to go into
 executive session.  In fact, in the absence of a case-by-case determination,
 the legislative policy of openness would be frustrated by the impossibility
 of describing in categorical terms, without being overinclusive, the
 permissible subjects of executive sessions.  The exercise of judgment is
 inevitable.
      The trial court erred in granting summary judgment to defendants on the
 open meeting claim. (FN4) We cannot find, however, that plaintiffs made the
 requisite showing to obtain relief.  The open meeting law provides for a
 private right of action for a "person aggrieved by a violation of the
 provisions of this subchapter" to apply to superior court "for appropriate
 injunctive relief or for a declaratory judgment."  1 V.S.A. { 314(b).  The
 complaint was filed long after the meeting in question, and there is no
 allegation that plaintiffs ever raised the issue at the time of the meeting
 or that they were even at the meeting.  As shown by the summary judgment
 papers, plaintiffs' presuit actions were directed at obtaining access to the
 documents.  Apparently, the issue first surfaced at a school board meeting
 some two months after the grievance hearing.
      We need not define "aggrieved" in order to hold that plaintiffs must
 make some showing of injury to obtain relief.  In the absence of an
 aggrieved individual, the attorney general may bring suit to enforce the
 statute.  Id.  On remand, the trial court must determine whether plaintiffs
 have the requisite standing to bring their open meeting claim.
      The second claim involves plaintiffs' right of access to the grievance
 decision and related documents.  The trial court ruled that the documents
 were covered by an exception to the disclosure requirements of the Access to
 Public Records Act (Public Records Act), which covers:
            (7) personal documents relating to an individual,
         including information in any files maintained to hire,
         evaluate, promote or discipline any employee of a public
         agency, information in any files relating to personal
         finances, medical or psychological facts concerning any
         individual or corporation . . . .

 1 V.S.A. { 317(b)(7).  Before we analyze the language of the exception, we
 stress that our overall approach to cases arising under the Public Records
 Act is similar to that for open meeting law cases.  The Act is to be con-
 strued liberally. Id. { 315.  It implements the policy that "the public
 interest clearly favors the right of access to public documents and public
 records," and under this policy "the exceptions listed in { 317(b) should be
 construed strictly against the custodians of the records and any doubts
 should be resolved in favor of disclosure."  Caledonian-Record Publishing
 Co. v. Walton, 154 Vt. 15, 20, 573 A.2d 296, 299 (1990).  In a dispute over
 access in the trial court, the burden is on the agency to sustain its
 action.  1 V.S.A. { 319(a).  In relying on an exception to disclosure, the
 agency "cannot discharge this burden by conclusory claims or pleadings;" it
 must "make the specific factual record necessary to support the exception
 claim."  Finberg v. Murnane, No. 91-485, slip op. at 8 (Dec. 18, 1992).
      Unless an exception applies, there is no doubt that the right of
 access extends to the records plaintiffs seek. (FN5) The Bellows Falls Union
 High School District is a public agency subject to the disclosure require-
 ments of the Public Records Act.  See 1 V.S.A. { 317(a) (public agency
 includes "agency, board, committee, department . . . of any political
 subdivision of the state").  The grievance and the board's written action on
 it are public records subject to disclosure.  See id. { 317(b) (public
 record includes all "papers . . . or any other written or recorded matters
 produced or acquired in the course of agency business").
      Before engaging in further discussion of this claim, we note that the
 trial court did not ground its decision on the labor contract provision
 between the school board and the teachers' association, which made
 grievances confidential.  We agree with plaintiffs that the contract cannot
 override the provisions of the Public Records Act, and the confidentiality
 provision was not a ground for denying plaintiffs access to the records.
 See Mills v. Doyle, 407 So. 2d 348, 350 (Fla. Ct. App. 1981) (allowing
 teachers' collective bargaining agreement to control whether grievance
 records are public "would sound the death knell of the [Public Records]
 Act"); Hechler v. Casey, 333 S.E.2d 799, 809 (W. Va. 1985).
      The trial court ruled that grievance documents are exempt from
 disclosure if "they relate to the individual grievant or other employees of
 the Defendant Board" or if they are "in any files maintained by the
 Defendant Board to hire, evaluate, promote, or discipline any employees."
 It apparently based this ruling on the conclusion that documents in these
 categories are "personal documents" under { 317(b)(7).  We find this
 interpretation of the exception to be overbroad and inconsistent with the
 liberal construction we must accord to the Public Records Act overall.
      As part of its conclusion, the trial court ruled that any "information
 in any files maintained to . . . discipline any employee" is confidential.
 Although this is a possible reading of the provision, we believe that the
 wording, specifically the use of "including," is more consistent with a view
 that information in such files is excepted from disclosure only if it is in
 "personal documents."  This interpretation also evaluates documents based on
 their content rather than where they are filed.  Other courts interpreting
 similar exceptions have shown reluctance to allow agencies to avoid dis-
 closure by the simple act of placing a document in a personnel or similar
 file.  See Braun v. City of Taft, 154 Cal. App. 3d 332, 341-43, 201 Cal. Rptr. 654, 658-59 (Cal. Ct. App. 1984) (statute does not create all or
 nothing policy for records in personnel files); Denver Publishing Co. v.
 University of Colorado, 812 P.2d 682, 684-85 (Colo. Ct. App. 1990) (records
 in personnel files which did not implicate a privacy right or which
 contained information routinely disclosed to others not covered by
 exemption); CBS, Inc. v. Partee, 556 N.E.2d 648, 651 (Ill. Ct. App. 1990)
 (to allow information to be exempt from disclosure "simply because it is in
 a personnel file would permit a subversion of the broad purposes of the
 Act"); Globe Newspaper Co. v. Boston Retirement Board, 446 N.E.2d 1051, 1056
 (Mass. 1983) (only personal information found in personnel files covered by
 the exemption); The Rake v. Gorodetsky, 452 A.2d 1144, 1147 (R.I. 1982)
 (non-confidential information is not exempt from disclosure simply because
 it is stored in personnel files).  We conclude that subsection (7) should be
 read as authorizing non-disclosure of only "personal documents," wherever
 such documents are filed.
      We emphasize that we would reach a similar result in this case even if
 we adopted the trial court's interpretation of the statute.  We held in
 Finberg v. Murnane that the agency has the burden of showing that a record
 fits within an exception, and it must discharge this burden by a specific
 factual showing, not merely by conclusory claims.  Finberg, slip op. at 8.
 For purposes of summary judgment, we treated the agency's failure to make
 the specific showing as a concession that the showing could not be made.
 Id. at 9.  In this case, we have no evidence of where the grievance docu-
 ments are filed.  For state employees, grievance decisions are records of
 the Vermont Labor Relations Board and are public.  3 V.S.A. { 929.  As in
 Finberg, the defendants have relied solely on conclusory claims in a
 memorandum of law and failed to make a factual record.  They have not met
 their burden.
      The term "personal documents" is vague.  In its broadest sense, it
 includes any document about specific people, including most opinions of this
 Court.  See Margolis v. Director, Department of Revenue, 536 N.E.2d 827, 829
 (Ill. Ct. App. 1989) (personal information means information that can be
 identified as applying to a particular individual).  Because such a use of
 the term would consume the disclosure rule, most statutes, following the
 federal model, limit the exemption to instances where disclosure would
 constitute an invasion of personal privacy.  See Department of Air Force v.
 Rose, 425 U.S. 352, 370-82 (1976) (interpreting Exemption 6 of the Freedom
 of Information Act, 5 U.S.C. { 552(b)(6)); Mans v. Lebanon School Board, 290 A.2d 866, 868 (N.H. 1972) (personnel files exemption limited to instances
 where disclosure would constitute invasion of privacy).  Under these
 statutes, the courts often require a balancing of the public interest in
 disclosure against the harm to the individual.  See Department of Air Force
 v. Rose, 425 U.S.  at 380; but see Chairman Criminal Justice Commission v.
 Freedom of Information Commission, 585 A.2d 96, 100 (Conn. 1991) (no
 balancing test under Connecticut statute).
      The Vermont statute does not explicitly adopt a privacy proviso in the
 exemption language.  The Legislature's statement of policy, however,
 provides that it must balance the right of persons "to privacy in their
 personal      . . . pursuits" against the need for "specific information . .
 . to review the action of a governmental officer."  1 V.S.A. { 315.  A broad
 reading of the term "personal documents" makes the right of privacy for
 personal information absolute.
      Because our primary goal in interpreting a statute is to implement the
 intent of the Legislature, Martel v. Stafford, 157 Vt. ___, ___, 603 A.2d 345, 347 (1991), we must construe the term "personal documents" in a
 limited sense to apply only when the privacy of the individual is involved.
 Thus, it covers personal documents only if they reveal "intimate details of
 a person's life, including any information that might subject the person to
 embarrassment, harassment, disgrace, or loss of employment or friends."
 Young v. Rice, 826 S.W.2d 252, 255 (Ark. 1992); see also Kotulski v. Mt.
 Hood Community College, 660 P.2d 1083, 1086 (Or. Ct. App. 1983) (inform-
 ation is personal if it normally would not be shared with strangers).
 Consistent with legislative intent, we must also examine the public interest
 in disclosure.
      Defendants had the burden to show that the documents plaintiffs
 requested fit within the exemption.  1 V.S.A. { 319(a).  They failed to
 demonstrate that the documents were "personal" under the definition we have
 adopted.  Accordingly, it was error to grant them summary judgment and to
 fail to grant summary judgment for plaintiffs.
      Both in the trial court and in this Court, plaintiffs sought an order
 requiring defendants to turn over the contested documents for in camera
 inspection under 1 V.S.A. { 319(a).  Because they requested that relief, we
 will not go further.  On remand, the trial court shall examine the disputed
 documents to determine whether any are exempt under { 317(b)(7) as we have
 interpreted it.
      Reversed and remanded for proceedings not inconsistent with this
 opinion.

                                         FOR THE COURT:




                                         Associate Justice




FN1.    Defendants acted in accordance with the collective bargaining
 agreement in holding the grievance hearing in executive session.  Defendants
 have not argued that the agreement controls over the provisions of the open
 meeting law.  As is noted infra, with regard to the public records claim, we
 could not allow the public's right of access to be overriden by a contract
 between the public agency and its employees.

FN2.    Plaintiffs also argue that the board decided the grievance in
 executive session in violation of the statute.  See 1 V.S.A. { 313(a) ("No
 formal or binding action shall be taken in executive session except actions
 relating to the securing of real estate options under subdivision (2) of
 this section.").  In view of our disposition of their main argument, we do
 not reach this claim.

FN3.    The court did not rely on { 313(a)(4), which covers a "disciplinary
 . . . action against a public . . . employee," and we have not considered
 that exemption.  Because the teachers were not suspended or dismissed, the
 specific section on hearings in those circumstances, 16 V.S.A. { 1752(b),
 does not apply.

FN4.    Because the proviso of { 313(a)(1) does not apply, it is unnecessary
 for us to decide whether the executive session was otherwise valid within
 the language of the statute.  See 1 V.S.A { 313(a) (a public body may not
 hold an executive session except to consider one or more of the authorized
 matters).  We note that, in construing a similar statute, the Arkansas
 Supreme Court has held that the exemption covers the agency's decision-
 making process but not the hearing of testimony.  Arkansas State Police
 Commission v. Davidson, 490 S.W.2d 788, 790 (Ark. 1973).  We also note that
 the Legislature originally created an exemption for "deliberations" of
 quasi-judicial bodies, 1 V.S.A. { 313(a)(7) (main volume), but that
 exemption was repealed and another substituted for it.

FN5.    Defendants also argue that the documents are covered by executive
 privilege, as set forth in Killington v. Lash, 153 Vt. 628, 572 A.2d 1368
 (1990), and thus are exempt from disclosure under 1 V.S.A. { 317(b)(4).
 Executive privilege, as explained in Killington, is limited to commun-
 ications with the Governor of Vermont.  153 Vt. at 635, 572 A.2d  at 1373.
 We do not see how it can be extended to a school board grievance decision
 and associated documents.  We reject any claim of executive privilege.