New England Coalition for Energy Efficiency and the Environment v. Office of Governor

NE_COALITION_FOR_ENERGY_V_GOVERNOR.94-157; 164 Vt 337; 670 A.2d 815

[Filed 03-Nov-1995]


  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. 94-157


New England Coalition for Energy            Supreme Court
Efficiency and the Environment
and The Grand Council of the Crees          On Appeal from
                                            Addison Superior Court
     v.

Office of the Governor, Howard Dean,        March Term, 1995
M.D., Governor, State of Vermont,
and Richard Sedano, Commissioner of
Department of Public Service


Edward J. Cashman, J.

James A. Dumont of Sessions, Keiner, Dumont & Barnes, P.C.,
Middlebury, for plaintiffs- appellants

Jeffrey L. Amestoy, Attorney General, and William Griffin, Chief
Assistant Attorney General, Montpelier, for defendants-appellees


PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Bryan, Supr.
J., Specially Assigned



       JOHNSON, J.   This case centers on the Governor's claim of executive
  privilege in response to plaintiffs' request for documents pursuant to the
  Access to Public Records Act, 1 V.S.A.  Sec. 315-320.  Although we previously
  recognized the existence of a common-law, executive privilege doctrine, we
  acknowledged that some questions remained regarding the scope and operation
  of the privilege.  Killington v. Lash, 153 Vt. 628, 648, 572 A.2d 1368,
  1380 (1990).  We affirm, upholding the executive privilege claim.  In so
  doing, we explain more fully the extent of the protection provided by the
  privilege, and flesh out the workings of the claim in the context of the
  Access to Public Records Act.

       In November 1991, plaintiffs served access-to-records requests on the
  Office of the Governor and the Public Service Commissioner.  The requests
  sought all documents and records 

  

  regarding a contract between several Vermont utilities and
  Hydro-Quebec.  Two days prior to the requests, the Department of Public
  Service (DPS) had published a "Review" of the Hydro-Quebec contract, which
  reaffirmed the Department's support for the venture.  At the time of the
  requests, plaintiffs were engaged in litigation with the utilities and the
  State, which supported the contract.

       Although DPS produced a number of documents in response to plaintiffs'
  requests, the Governor refused to produce certain documents that he
  asserted were protected from disclosure by the doctrine of executive
  privilege.  The documents withheld are: (1) a memorandum from James Volz,
  Director for Public Advocacy for DPS, to then-Governor Snelling, dated
  August 6, 1991; (2) a memorandum from DPS Commissioner Sedano to Governor
  Dean, dated November 5, 1991; and (3) a memorandum from Sedano and Volz to
  Governor Dean, dated November 13, 1991.

       Following the procedure prescribed in 1 V.S.A. Sec. 319(a), plaintiffs
  appealed the denial of the access-to-records request in superior court. 
  Both plaintiffs and defendants moved for summary judgment.  The court
  denied plaintiffs' motion for summary judgment but granted defendants'
  motion, holding that plaintiffs had not made a showing of need sufficient
  to rebut the claim of executive privilege.  This appeal followed.(FN1)

                                     I.

       Plaintiffs argue that the trial court erred in requiring a showing of
  need to overcome the claim of executive privilege.  Plaintiffs rely on the
  Access to Public Records Act, 1 V.S.A. Sec.Sec. 315-320.  Under the statute, an
  agency that withholds records under any of the listed exemptions has the
  burden to justify its action.  1 V.S.A. Sec. 319(a).  

       Defendants claim that the withheld documents are protected by the
  common-law doctrine of executive privilege, recognized by this Court in
  Killington, 153 Vt. at 636-37, 572 A.2d  at 

  

  1374.  The Access to Public Records Act explicitly incorporates common
  law privileges.  1 V.S.A. Sec. 317(b)(4).  A claim of executive privilege
  shifts the burden to the requester to make a showing of need to overcome
  the presumptive privilege.  Killington, 153 Vt. at 639, 572 A.2d  at 1375. 
  If the court determines that the requester has shown need, the court will
  conduct an in camera inspection of the documents, to determine if the
  interest in confidentiality outweighs the need for disclosure.  Id.

       The showing of need required to overcome the privilege may appear
  inconsistent with the burden placed on the agency by the Access to Public
  Records Act.  We recognized this conflict in Killington, however, where we
  emphasized that the common-law privileges incorporated into the statute
  must "be applied as a whole and not piecemeal."  Id.  Reversing the burden,
  so that necessity is presumed and the party claiming the privilege must
  overcome that presumption, would "markedly alter[]" the executive privilege
  doctrine.  Id.  Recognizing that the showing of need "is an essential part
  of the privilege itself," we held in Killington that "when a claim of
  executive privilege is asserted, the requester has the burden of providing
  reasons why the need for the information outweighs the interest in
  confidentiality."  Id.   

                                     A.

       Plaintiffs nonetheless maintain that no showing of need is required in
  this case.  Plaintiffs first contend that the withheld documents are
  "postdecisional" and therefore not protected from disclosure by executive
  privilege.  The cases that plaintiffs cite to support this proposition,
  however, were brought under the Freedom of Information Act (FOIA), 5 U.S.C.
  Sec. 552, the federal analogue to Vermont's Access to Public Records Act.  See
  N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975); Paisley v.
  C.I.A., 712 F.2d 686, 688 (D.C. 1983), vacated in part on other grounds,
  724 F.2d 201, 204 (D.C. Cir. 1984) (per curiam); Taxation With
  Representation Fund v. I.R.S., 646 F.2d 666, 668 (D.C. Cir. 1981); Coastal
  States Gas Corp. v. Department of Energy, 617 F.2d 854, 857 (D.C. Cir.
  1980); Jordan v. Department of Justice, 591 F.2d 753, 755 (D.C. Cir. 1978). 
  In the FOIA context, federal courts have emphasized a 

  

  distinction between predecisional documents and communications that
  are part of the deliberative process and are protected from disclosure
  under FOIA, and postdecisional documents and communications, which are not
  protected.  Sears, Roebuck, 421 U.S.  at 151.  

       This distinction arises out of the privilege established by Exemption
  5 of FOIA.  Exemption 5 protects "inter-agency or intra- agency memorandums
  or letters which would not be available by law to a party other than an
  agency in litigation with the agency."  5 U.S.C. Sec. 552(b)(5).  Materials
  protected under this exemption fall under what is known as the
  "deliberative process privilege," sometimes also referred to as "executive
  privilege."   Taxation With Representation, 646 F.2d  at 676-77.

       Predecisional documents are generally viewed as part of the "agency
  `give-and-take' leading up to a decision," while postdecisional documents
  frequently "represent the agency's position on an issue, or explain such a
  position, and thus may constitute the `working law' of an agency."  Id. at
  677.  While the quality of agency decisions is maintained by protecting
  "the ingredients of the decisionmaking process" from disclosure,
  communications that follow the decision, explaining or implementing it, do
  not raise the same concerns for candor and frank discussion.  Sears,
  Roebuck, 421 U.S.  at 151.  Moreover, the public has a greater interest in
  learning the actual decision of the agency, and the reasons for it, than in
  discovering the policies and arguments that were rejected.  Id. at 152.  

       Plaintiffs are asking this Court to apply the
  predecisional/postdecisional distinction developed in the FOIA context to a
  claim of executive privilege by the Governor.  In so doing, however,
  plaintiffs confuse the common-law executive privilege, which is claimed
  here, with the deliberative-process privilege established by Exemption 5 of
  FOIA.  The common-law executive privilege, which applies to communications
  with the Governor, does not arise out of FOIA or the Access to Public
  Records Act, and is not necessarily coextensive with the
  deliberative-process privilege.

       Rather, the differences between agency decision-making and the
  decision-making of a chief executive suggest that the
  predecision/postdecision distinction should not apply to claims of
  common-law executive privilege.  Agencies are expected to follow
  statutorily mandated procedures; access to agency records under FOIA and
  analogous statutes allows the public to examine the agency's compliance
  with such procedures.  Access to records prevents secret rule-making;
  although the deliberative process is protected until a decision is reached,
  postdecisional documents that reveal or explain that decision must be
  disclosed to the public.  The regularized procedures of agency
  decision-making also permit the drawing of a line between predecisional
  deliberative process and postdecisional explanations of policy.  

       The decision-making process of the chief executive is not prescribed
  by statute, nor does it consist of regularized procedures.  The public does
  not have the same interest in examining the internal workings of the
  process.  Moreover, because the chief executive has a range of consultative
  and decisional responsibilities not easily separated into discrete
  decisions, predecision and postdecision line-drawing would be an arbitrary
  exercise.

       The facts of this case illustrate this point.  Plaintiffs argue that
  the withheld documents are "postdecisional" because Governor Dean had
  previously stated publicly that he had no role to play with respect to the
  Hydro-Quebec contract.  Yet, despite these public statements, Governor Dean
  continued to be advised on Hydro- Quebec.  Such inconsistencies between
  public statements and the internal decision-making process make it
  difficult, if not impossible, for a court to determine at what point a
  decision is final.  

       Similarly, we are not persuaded by plaintiffs' argument that these
  documents are not privileged because they do "not relate to any particular
  decision the Governor was to make."  A chief executive properly receives
  advice on important issues facing the state, even though no immediate
  decision may be required.  The need for honest and open communication
  between the chief executive and advisors remains.

                                     B.

       Plaintiffs make two additional arguments based on law developed under
  FOIA Exemption 

  

  5 to support their claim that the withheld documents are not
  privileged.  First, they assert that because a final decision has already
  been made on the Hydro-Quebec contract, only documents that represent
  "losing advice" may be withheld.  We have already discussed our
  unwillingness to limit the common-law executive privilege to predecisional
  communications relating to specific decisions.  Separating winning and
  losing advice raises the same problem:  the decision-making and
  consultative responsibilities of the chief executive do not lend themselves
  to such neat distinctions.(FN2)

       Second, plaintiffs maintain that the privilege does not protect from
  disclosure any factual material that is severable from the rest of the
  document.  Plaintiffs rely upon a statement contained in defendants'
  answers to plaintiffs' requests to admit.  Asked to admit that each
  document "contains statements which an objective reader would consider to
  be factual in nature," defendants denied the statement, but qualified the
  denial, stating:

         All three documents provided the Governor with
         legal and policy advice on matters at issue in
         the Hydro Quebec litigation.  It is admitted
         that the documents discussed factual as well
         as legal and policy considerations, but the
         documents were advisory. 

  This statement, and the affidavit of James Volz, which also describes
  the withheld documents as providing legal and policy advice, make clear
  that the withheld documents are primarily advisory.  

       Plaintiffs place great weight on defendants' admission that some
  factual considerations are discussed in the documents.  We fail to see the
  significance of this statement.  Any policy or advisory memorandum will
  contain some factual references.  Indeed, the choice of certain 

  

  facts to support a policy recommendation is an element of the
  privileged communication.  The inclusion of some facts in an advisory
  memorandum does not require disclosure of those facts.  As the Maryland
  Court of Appeals has stated, "Opinions, advice and recommendations are
  premised upon or flow from facts.  The mere recitation of certain factual
  understandings or factual conclusions in a document, forming the basis for
  the opinions and recommendations, would not deprive a document of its
  essentially deliberative character."  Hamilton v. Verdow, 414 A.2d 914, 927
  (Md. 1980);  but see Playboy Enters., Inc. v. Department of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982) (holding that report that reflects choice,
  weighing and analysis of facts is not protected by deliberative process
  privilege).

       Moreover, plaintiffs do not argue that these documents contain facts
  that are otherwise unavailable to them.  Instead, plaintiffs speculate that
  the documents contain summaries of data which they have already received
  from the Department of Public Service.  Plaintiffs' claim that they need
  the "potent weapon" represented by factual material contained in these
  documents appears unfounded.

                                     C.

       Our holding today is not an absolute statement that all direct
  communications with the Governor are privileged.  As we acknowledged in
  Killington, executive privilege protects "`the sensitive decisional and
  consultative responsibilities of the Governor.'"  153 Vt. at 636, 572 A.2d 
  at 1373 (quoting Nero v. Hyland, 386 A.2d 846, 853 (N.J. 1978)).  The
  purpose of the privilege is to permit "`frank expression and discussion'"
  among decision-makers.  Id. at 637, 572 A.2d  at 1374 (quoting Carl Zeiss
  Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324-25 (D.D.C. 1966)). 
  The withheld documents in this case are internal memoranda from a
  high-ranking subordinate to the Governor that provide policy and legal
  advice.  Such documents fall within the narrowest definition of executive
  privilege.  Some direct communications with the Governor may be outside the
  scope of the privilege, but we need not reach such questions in this
  opinion.  See, e.g., Doe v. Alaska Superior Court, 721 P.2d 617, 625
  (Alaska 1986) 

  

  (unsolicited letters from citizens to governor not protected from
  disclosure by executive privilege doctrine); Hamilton v. Verdow, 414 A.2d
  at 927- 28 (communications to governor that are primarily factual not
  protected from disclosure by executive privilege doctrine).  

                                     II.

       Plaintiffs argue that, even if the withheld documents might be
  privileged, defendants have not made a sufficient showing to support a
  claim of executive privilege.  We disagree.

       The claim of privilege is supported by an affidavit of James Volz,
  Director of Public Advocacy.  In his sworn affidavit, Volz states that he
  is the author of the memorandum dated August 6, 1991 (at which time he was
  acting as Commissioner of the Department of Public Service on Hydro-Quebec
  matters), and that he is the co- author, with Richard Sedano, of the
  memorandum dated November 13, 1991.  Volz describes these two documents as
  "confidential" and "advisory" memoranda that contain "policy and legal
  advice" on the Hydro-Quebec litigation.  Volz further states that he
  consulted with Sedano regarding the memorandum dated November 5, 1991, and
  recently reviewed that document, which contains "policy advice on
  Hydro-Quebec."  

       Although in Killington we did not address the elements of a prima
  facie claim of executive privilege, other courts have described the "strict
  procedural requirements" that such a claim must satisfy.  Doe, 721 P.2d  at
  626.  The affidavit supporting the claim must be based on "actual personal
  consideration" by the responsible official.  United States v. Reynolds, 345 U.S. 1, 7-8 (1953).  The executive must specifically identify the documents
  for which the privilege is claimed, and must explain why the documents are
  protected by the privilege.  Black v. Sheraton Corp. of America, 564 F.2d 531, 543 (D.C. Cir. 1977); Doe, 721 P.2d  at 626.

       The affidavit is sufficient to make out a prima facie claim of
  executive privilege.  Volz, as a high-ranking official who was intimately
  involved with the preparation of the memoranda, is a proper person to
  assert the claim.  The affidavit is based on Volz's personal knowledge of
  the documents, and describes those documents with particularity.  Moreover,
  the affidavit provides a proper basis for a claim of privilege, stating
  that the documents are confidential and advisory, and contain policy and
  legal advice.
  
                                    III.

       Plaintiffs argue that the First Amendment to the United States
  Constitution and Chapter I, Articles 6 and 13 of the Vermont Constitution
  require disclosure of the documents.  This argument is without merit.  As
  we recognized in Killington, the doctrine of executive privilege has both
  "constitutional and common-law roots."  Killington, 153 Vt. at 636, 572 A.2d  at 1374.  At both the state and federal level, the privilege is
  closely linked to the separation of powers.  Id., 572 A.2d  at 1373; United
  States v. Nixon, 418 U.S. 683, 708 (1974).  By promoting the effectiveness
  of the governing process, the privilege protects the welfare of the public,
  not the government official.   Killington, 153 Vt. at 637, 572 A.2d  at
  1374.  To hold that the public has a constitutional "right to know" that
  requires disclosure of privileged documents would effectively eliminate the
  privilege, ultimately harming, rather than benefitting, the public.

                                     IV.

       In conclusion, we emphasize that a claim of executive privilege is not
  absolute, but qualified.  When a prima facie claim of privilege is
  asserted, a presumptive privilege attaches,  but a showing of necessity can
  overcome the privilege.  Id. at 639, 572 A.2d  at 1375.  In this case,
  plaintiffs do not contest the trial court's holding that no showing of
  necessity was made, so the claim of executive privilege must be upheld.

       Affirmed.      

                                  FOR THE COURT:



                                  _______________________________
                                  Associate Justice 


------------------------------------------------------------------------
                                  FOOTNOTES


FN1.  Because we affirm the decision below, we do not address
  defendants' claims of attorney-client and work-product privilege.

FN2.  Moreover, we are not convinced that plaintiffs have properly
  characterized this distinction.  The case cited for the proposition,
  N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132 (1975), has a much narrower
  holding.  The Supreme Court in that case held that where "an agency chooses
  expressly to adopt or incorporate by reference an intra-agency memorandum
  previously covered by Exemption 5 in what would otherwise be a final
  opinion," such a memorandum is no longer protected from disclosure by
  Exemption 5.  Id. at 161.  Not all winning advice must be disclosed, but
  only that which is expressly incorporated into a final decision.