Herald Association, Inc. v. Dean
Annotate this Case
Herald Association, Inc. v. Dean; 174 Vt. 350; 816 A.2d 469
[Filed 01-Nov-2002]
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. 2002-190
Herald Association, Inc., Supreme Court
Times Argus Association, Inc. and
DiCapo Publishing, Inc.
On Appeal from
v. Washington Superior Court
Governor Howard Dean, M.D. and June Term, 2002
State of Vermont
Alan W. Cheever, J.
Robert B. Hemley and Christina Reiss of Gravel and Shea, Burlington,
for Plaintiffs-Appellees.
William H. Sorrell, Attorney General, William E. Griffin, Chief
Assistant Attorney General, and Mark J. Di Stefano, Assistant Attorney
General, Montpelier, for Defendants-Appellants.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
MORSE, J. Plaintiffs Herald Association, Inc., Times Argus
Association, Inc., and DaCapo Publishing, Inc., all publishers of
newspapers circulated throughout Vermont, filed a request under Vermont's
Access to Public Records Act, 1 V.S.A. §§ 315-320, for Governor Howard
Dean's daily schedule from September 2001 to the present, with continual
updates. Plaintiffs sought the schedule as a means to determine how much
time Governor Dean spends on non-gubernatorial activities, particularly
time spent on matters related to his bid for the United States presidency.
The Governor denied the request, and plaintiffs filed suit against him and
the State of Vermont, as
authorized by § 319(a) of the Act. The trial court entered summary
judgment in favor of plaintiffs, ruling that the Governor is not entitled
to claim executive privilege with respect to his daily calendar because it
does not reveal information relating to policy or the Governor's
decision-making process. Defendants claim on appeal that the calendar is
exempt from disclosure because (1) it is not a public record under the Act;
(2) the common law executive privilege permits the Governor to withhold it
from the public; and (3) the record falls within the Act's so-called
security exception, § 317(c)(25). We affirm in part, and vacate and remand
in part.
Because the superior court disposed of this matter on summary
judgment, we review the order using the same standard the lower court
employed. White v. Quechee Lakes Landowners' Ass'n,170 Vt. 25, 28, 742 A.2d 734, 736 (1999). Where no genuine issue of material fact for trial
exists and a party is entitled to judgment as a matter of law, summary
judgment is required. V.R.C.P. 56(c)(3).
The relevant facts are not disputed by the parties. The Governor's
staff prepares a daily schedule that contains the Governor's appointments,
and identifies where he will be and with whom he will meet during any given
day. Staff also prepares a schedule of the Governor's public appearances,
which is available for public inspection. Comprehensive by design, the
daily calendar includes a variety of public and private events, including
conferences, meetings, and descriptive information relating to the events,
often including a description of the policy question or issue to be
discussed at a particular meeting. By necessity, the schedule contains
some personal appointments and information. The daily schedule thus
generally contains more information than does the public schedule.
The creation of this schedule is a matter of choice for the Governor;
no law requires him to create the record, and the Governor controls what
information it contains. The schedule's creation is nevertheless an
integral part of the Governor's operations. Staff prepares the schedule to
plan and organize the Governor's daily activities, to facilitate policy
formulation and decision making, and to communicate with the Governor's
staff and security detail regarding the Governor's daily activities. In
her affidavit, Kathleen O'Connor, Special Assistant to Governor Dean,
explained that the Governor is necessarily "on call" at all times due to
his role as Chief Executive for the State. Therefore, "[i]t is important
that the Governor have a comprehensive schedule available to him and that
his staff have ready access to him, regardless of the nature of his
activities on any given day. A comprehensive daily schedule serves that
purpose." Once the daily schedule is prepared, it is distributed to
certain members of the Governor's staff, the Secretary of Administration,
and the Governor's security detail.
In their complaint, plaintiffs cited the Governor's interest in
running for the United States presidency, and alleged that his "political
future, and the steps he is taking to pursue it, are matters of clear
public interest." They claimed the Governor's daily calendar is an
"integral part of the information" relating to the public's "legitimate
interest in knowing the activities and political ambitions of its elected
officials, the official and unofficial political meetings and events they
are holding and attending, and how such meetings and events are financed."
To that end, plaintiffs sought copies of the schedule to "ascertain with
whom Governor Dean is meeting, where the meeting is taking place, and
whether the meeting falls within the pursuit of . . . Governor Dean's
duties and responsibilities as Governor of Vermont or whether it has some
other purpose." They advised defendants that they were not interested in
personal information relating to the Governor's health
appointments and activities, and those of his family members, or
information such as hotel names, room numbers, airline flight numbers and
precise geographic locations. Plaintiffs suggested that the Governor could
redact such information prior to producing the records. The Governor
nevertheless denied plaintiffs' request entirely, giving rise to the
present controversy.
I.
The first question we must address is whether the Governor's schedule
is a "public record" as the legislature has defined the term. Under that
definition, an earlier version of which we described as "sweeping," see
Caledonian-Record Publ'g Co. v. Walton, 154 Vt. 15, 19, 573 A.2d 296, 298
(1990), "all papers, documents, machine readable materials or any other
written or recorded matters, regardless of their physical form or
characteristics, that are produced or acquired in the course of agency
business" are public records subject to disclosure. 1 V.S.A. § 317(b).
The legislature has defined "agency" to include any "branch,
instrumentality or authority of the state." § 317(a). It is hardly
disputable that the Office of the Governor of the State of Vermont is a
"branch, instrumentality or authority of the state." See Vt. Const. ch.
II, § 1 (State of Vermont shall be governed by a governor, senate, and
house of representatives); Vt. Const. ch. II, § 20 (setting forth
governor's executive powers); Kellogg v. Page, 44 Vt. 356, 362, 8 Am. Rep.
383, 388 (1871) (governor is considered a branch of Vermont's government
under Vermont Constitution). Because the Governor is an "agency" under the
Act, any paper or document "produced or acquired" during the course of the
Governor's business is a public record subject to disclosure under the Act,
unless some exception to the Act applies.
Defendants take issue with that conclusion, arguing that we should
ignore the plain meaning of the statute and read into it, as a matter of
public policy, an exception for certain records
exclusively in the Governor's control. Defendants argue that any portion
of a public record containing information not directly related to the
Governor's duties - e.g., information related to Governor Dean's
presidential aspirations - is not covered by the definition of a public
record. The determinative factor under the Act is, however, whether the
document at issue is "produced or acquired in the course of agency
business." 1 V.S.A. § 317(b). The affidavits defendants submitted in this
case establish without dispute that the schedule plaintiffs seek is an
integral and essential part of the daily functioning of the Governor's
office. According to defendants, the schedule's comprehensive design is
necessary to facilitate the execution of the Governor's various duties and
to communicate with staff and the Governor's security personnel. Given the
circumstances surrounding its creation, and the essential role the calendar
plays in the day-to-day functioning of the Governor's office, the calendar
falls within the definition of a public record because it is "produced or
acquired in the course of [the Governor's] business." See 1 V.S.A. §
317(b).
Defendants also suggest that we exempt the Governor from the
definition of "agency" under the Act, paralleling the United States Supreme
Court's interpretation of the federal Freedom of Information Act (FOIA)
relative to the Executive Office of the President. In Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980), the Supreme
Court held that FOIA excluded from the definition of "agency" certain
advisors to the President of the United States even though "agency"
explicitly included the Executive Office of the President. 445 U.S. at
156. Key to the Supreme Court's holding in that case was explicit
legislative history explaining that "Executive Office of the President" did
not encompass the Office of the President or staff whose sole purpose was
to assist and advise the President. Id. Defendants have not demonstrated
that our legislature intended a similar exclusion under Vermont's Access to
Public Records Act, and we are not
persuaded that we should create one absent such a showing. Where the
legislature's intent can be ascertained from the plain meaning of the
statute, we interpret the statute according to the words the legislature
used. Brennan v. Town of Colchester, 169 Vt. 175, 177, 730 A.2d 601, 603
(1999). Our interpretation here is faithful to that canon.
Citing our decision in Doe v. Salmon, 135 Vt. 443, 378 A.2d 512
(1977), defendants also argue that a "public record" does not include the
Governor's schedule because it is not a record of the Governor's official
acts. Nothing in that case, nor in the language of the Access to Public
Records Act, intimates that records of official acts alone are subject to
public inspection. We observed in Doe v. Salmon that "[t]he right of all
citizens to inspect public records and documents made and preserved by
their government when not detrimental to the public interest has been
established by the common law." Id. at 445-46, 378 A.2d at 515. That
common law right is reflected in the Access to Public Records Act, which
must be liberally construed in favor of public access to documents falling
within its scope. See 1 V.S.A. § 315 (Act must be liberally construed to
carry out legislative policy that free and open examination of records is
necessary for persons to review and criticize decisions of governmental
officers); Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt.
101, 106-07, 624 A.2d 857, 861 (1993) (public interest favors public's
right of access to public records, and Act must be liberally construed to
effect that interest). Although an official act of the Governor was at
issue in Doe v. Salmon, the legislature did not limit the statutory right
of access to public documents to those reflecting official governmental
acts only.
II.
Our inquiry does not end with the conclusion that the Governor's
calendar is a public record as defined by § 317(b) because defendants
claim that two exceptions from the general disclosure
requirement apply here. They claim that the schedule is covered by the
common law executive privilege and may therefore be withheld under §
317(c)(4). Defendants also argue that the schedule falls within §
317(c)(25)'s exemption for documents related to security. Finally,
defendants argue that they should not be required to redact the schedule to
comply with plaintiffs' request because doing so is burdensome. We examine
each claim separately.
A.
Under § 317(c)(4), an agency may reject a public record request if
complying with it "would cause the custodian to violate any statutory or
common law privilege." 1 V.S.A. § 317(c)(4). Under the common law
executive privilege, documents reflecting communications in the course of
the Governor's decision-making and deliberative process may be withheld
from the public to protect and facilitate the Governor's consultative and
decisional responsibilities. New England Coalition for Energy Efficiency
and the Environment v. Dean, 164 Vt. 337, 341, 670 A.2d 815, 817-18 (1995);
Killington, Ltd. v. Lash, 153 Vt. 628, 636-37, 572 A.2d 1368, 1374 (1990).
The privilege, which is not absolute, furthers the public interest by
allowing the Governor to obtain open advice on matters of public
importance. Killington, Ltd., 153 Vt. at 637, 572 A.2d at 1374. Thus, the
privilege extends to documents connected to the Governor's deliberations,
consultations, and receipt of policy advice. See New England Coalition,
164 Vt. at 343-44, 670 A.2d at 819.
Documents covered by the privilege enjoy presumptive confidentiality
which can be overcome only by a showing that the requester has a need for
the documents that outweighs the interest in confidentiality. Id. at 339,
670 A.2d at 817. In New England Coalition, we explained the process for
making a prima facie case of executive privilege in response to a request
for documents. "The executive must specifically identify the documents for
which the privilege is
claimed, and must explain why the documents are protected by the
privilege." Id. at 344, 670 A.2d at 820. The claim must be supported by
an affidavit "based on 'actual personal consideration' by the responsible
official." Id. (quoting United States v. Reynolds, 345 U.S. 1, 7-8
(1953)). Whether the Governor makes a prima facie showing that the
privilege applies to the requested documents depends on the specificity of
the claims supporting the privilege's assertion. In our prior cases, that
determination was relatively easy because the documents subject to dispute
were specific, identified communications between the Governor and state
agency officials. For example, in New England Coalition, the documents
over which the Governor asserted executive privilege were three memoranda
to the Governor from the Director for Public Advocacy of the Vermont
Department of Public Service (DPS) and the DPS Commissioner. New England
Coalition, 164 Vt. at 339, 670 A.2d at 816. The affidavit in support of
the privilege claim in that case, which was submitted by the Director for
Public Advocacy, stated that the documents were confidential and advisory,
and contained legal and policy advice. Id. at 345, 670 A.2d at 820. In
Killington, Ltd., the documents were communications directly to or from the
Governor with respect to regulatory decisions involving the Killington ski
area prepared for the purpose of formulating policy and making decisions
regarding matters for which the Agency of Natural Resources was
responsible. Killington, Ltd., 153 Vt. at 631, 572 A.2d at 1371.
In this case, the claim of executive privilege is made broadly to
cover a document containing a variety of information, some of which does
not fall within the class of advisory communications at issue in
Killington, Ltd. or New England Coalition. Plaintiffs' request can be
construed to encompass information in the daily schedule showing (1)
meetings or events unrelated to executive policy making or deliberations,
including meetings and events related to Governor Dean's
consideration of a potential bid for President of the United States, and
(2) meetings or events related to the Governor's deliberations and policy
making, including meetings with the Governor's staff, members of his
cabinet, other Vermont state government officials, and others. The
Governor's blanket assertion of privilege over his calendar in response to
the request did not address the applicability of the privilege to each
specific class of information the schedule contains. Nevertheless, for the
first class of information, the blanket assertion presents no analytical
difficulty because facially that category is not sufficiently related to
gubernatorial policymaking or deliberations to qualify for confidential
treatment under the executive privilege. Accordingly, that information
must be disclosed. (FN1)
We note that the dissent contends that the information concerning the
Governor's presidential aspirations is already publicly available
elsewhere, including on Governor Dean's website, Fund for a Healthy
America. The record shows that the Governor's Office and the Governor's
website disclose Governor Dean's public appearances only, although his
calendar contains private events as well. Plaintiffs sought all
information in the Governor's calendar, whether public or private, to
ascertain the extent to which Governor Dean's daily activities relate to
the business of the State of Vermont. Governor Dean's otherwise
undisclosed activities concerning a potential presidential candidacy are
therefore necessarily included in plaintiffs' request. In accordance with
this opinion, that information must be provided to plaintiffs.
We recognize that the Act applies only to records generated in "the
course of agency business," but emphasize that the calendar as a whole was
conceded by the Governor to be integral
to the operation of his office. Thus, there is no inconsistency in
concluding that while the schedule itself is a public record, certain
specific information contained in it is so unrelated to the deliberative or
policymaking process that it fails to qualify for a claim of executive
privilege.
The second class of information presents a more difficult issue due to
defendants' blanket assertion of privilege over the entire schedule. The
inquiry into whether information is confidential under executive privilege
must be specific to ensure that the public's right to inspect public
documents is protected while also safeguarding the Governor's ability to
engage in private deliberations over matters of public policy. The
Governor's general claim of executive privilege lacks the specificity
necessary to determine whether the remaining calendar entries are exempt
from public disclosure. For example, Kathleen O'Connor's affidavit states
that some calendar entries relate to Governor Dean's attendance at "
'political events' " - both in Vermont and out of state - as a member of
the Democratic Party. She states that he meets with, and makes appearances
for, candidates for elective office, again both in Vermont and elsewhere.
Some of the events to which she refers are public and others are private.
Governor Dean's activities pertaining to his exploration of a candidacy for
President of the United States, which the dissent agrees are subject to
disclosure, could fall within the scope of those two categories of calendar
entries O'Connor's affidavit describes. It is likewise possible that those
categories include events sufficiently related to the Governor's
responsibilities as Chief Executive to qualify for executive privilege.
Although we find defendants' assertion of executive privilege over the
Governor's schedule in its entirety too broad, we decline to require the
Governor to disclose the entirety of his schedule at this time, and remand
for further proceedings before the superior court. If on remand plaintiffs
seek disclosure of additional information, the Governor shall be afforded
an opportunity to make a prima facie case,
specific to those remaining entries, that the privilege applies. If the
superior court determines that the Governor has made a prima facie showing
that the executive privilege applies, plaintiffs must offer reasons why
their need for the information outweighs the interest in confidentiality
before any disclosure may occur. Killington, Ltd., 153 Vt. at 639, 572 A.2d at 1375.
B.
We must also determine whether the Governor may withhold the disputed
portions of his schedule from plaintiffs under § 317(c)(25), the so-called
security exception to the Access to Public Records Act. Section
317(c)(25) allows an agency to withhold "passwords, access codes, user
identifications, security procedures and similar information the disclosure
of which would threaten the safety of persons or the security of public
property." 1 V.S.A. § 317(c)(25). Defendants argue that revealing the
Governor's schedule threatens his security because it would reveal a
pattern of the Governor's activities, which would be useful to one bent on
causing him harm. That argument is premised on a wholesale disclosure of
the Governor's schedule rather than revelation of the narrow class of
information which we order disclosed in this case. Assuming the security
exception applies at all to a schedule, to shield the calendar entries at
issue here under the Access to Public Records Act, defendants bear the
burden of showing that the exception applies through a specific factual
record. See Finberg v. Murname, 159 Vt. 431, 438, 623 A.2d 979, 983 (1992)
(agency may not discharge its burden to show an exemption under the Access
to Public Records Act applies by way of conclusory pleadings or claims; a
specific factual record is necessary to support the claim). That record is
lacking in this case due to the generalized nature of defendants' claim
over the entirety of the Governor's schedule. There is no showing that
disclosure solely of the meetings or events related to the Governor's
presidential aspirations would pose a security risk. In addition,
plaintiffs have not
requested certain travel details and personal information included in the
Governor's schedule that might impact the Governor's safety, such as
airline flight information and hotel accommodations, and his personal
family commitments. We therefore find no error in the trial court's
decision concluding that § 317(c)(25) does not apply in this instance.
C.
Defendants also claim that redacting the schedule to meet plaintiffs'
request would be burdensome and therefore we should not require them to
produce the information. The Access to Public Records Act does not allow
an agency to withhold public records simply because complying with the
request is difficult or time consuming. The Act provides a different
remedy in those circumstances. Under § 316(c), an agency may "charge and
collect the cost of staff time associated with complying with a request for
a copy of a public record" if "the time directly involved in complying with
the request exceeds 30 minutes." 1 V.S.A. § 316(c)(1). We leave it to the
Governor and his staff to determine the most effective and efficient way to
provide plaintiffs with the information subject to disclosure under this
opinion.
III.
We turn finally to plaintiffs' argument that the superior court erred
by denying their request for attorney's fees. We review the lower court's
decision on this issue under our abuse-of-discretion standard: the decision
will stand on appeal unless the requesting party shows that the court
either failed to exercise its discretion altogether or exercised it for
reasons that are clearly untenable or unreasonable. Burlington Free Press
v. Univ. of Vt., 172 Vt. 303, 307, 779 A.2d 60, 64 (2001). In this case,
the backdrop to that standard is the legislative policy requiring swift
resolution of disputes under the Access to Public Records Act. See
Finberg, 159 Vt. at 433, 623 A.2d at 981 ("The Access
to Public Records Act . . . is aimed at expeditious resolution of disputes
over whether a citizen will have access to a public record."). Plaintiffs
suggest that the court erroneously denied their request because defendants'
litigation of this matter ran counter to the interest in prompt resolution
of their requests. They characterize defendants' actions, and their
supporting arguments, as unreasonable. The superior court disagreed,
noting that this was a case of first impression in Vermont. We find no
abuse of the superior court's discretion in this instance. Although we
disagree with defendants' position in part, we do not find it devoid of any
reasonable support. The trial court's rationale for denying attorney's
fees was not clearly untenable or unreasonable, and we affirm its decision.
Burlington Free Press, 172 Vt. at 307, 623 A.2d at 64.
The trial court's order is affirmed insofar as it requires the
Governor to disclose those portions of his daily calendar reflecting
meetings and events related to Governor Dean's potential candidacy for
President of the United States. The remainder of the order is vacated and
remanded to the trial court for further proceedings consistent with the
views expressed herein.
FOR THE COURT:
_______________________________________
James L. Morse, Associate Justice
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Footnotes
FN1. To the extent schedule entries falling into that class include
personal family commitments and travel details, plaintiffs have stated that
they do not want that information, so the Governor may redact those details
from the entries.
------------------------------------------------------------------------------
Concurring
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. 2002-190
Herald Association, Inc., Supreme Court
Times Argus Association, Inc. and
DiCapo Publishing, Inc.
On Appeal from
v. Washington Superior Court
Governor Howard Dean, M.D. and June Term, 2002
State of Vermont
Alan W. Cheever, J.
Robert B. Hemley and Christina Reiss of Gravel and Shea, Burlington,
for Plaintiffs-Appellees.
William H. Sorrell, Attorney General, William E. Griffin, Chief
Assistant Attorney General, and Mark J. Di Stefano, Assistant Attorney
General, Montpelier, for Defendants-Appellants.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
AMESTOY, C.J., concurring. I concur with that portion of the
majority's opinion which concludes: (1) the Governor's daily schedule
prepared by gubernatorial staff is a public record, but no law requires
creation of the record and the Governor controls what information it
contains; (2) plaintiffs' request for the schedule of meetings and events
related to Governor Dean's decision to seek the office of President of the
United States requests information insufficiently related to gubernatorial
policymaking or deliberations to qualify for confidential treatment under
executive privilege; (3) the Governor should not be compelled to release
information from his daily schedule
that may be protected by executive privilege, and this case should be
remanded to enable the superior court to determine the applicability of the
privilege to daily schedule information unrelated to the Governor's bid for
the presidency.
I write to note my agreement with Justice Skoglund that while "the raw
material in the Governor's appointment calendars and schedules is factual,
its essence is deliberative." Times Mirror Co. v. Superior Ct., 813 P.2d 240, 251 (Cal. 1991). While the affidavits submitted by the State may be
sufficient to establish a prima facie case for executive privilege as to
information in the Governor's daily schedule related to the
responsibilities of fulfilling the Office of Governor, the fact remains
that the affidavits were submitted to support a claim of privilege to all
information in the schedules. Hence, although I find Justice Skoglund's
analysis persuasive, I believe it is premature given the posture of the
case as it comes to us.
Finally, I note that although we have determined that disclosure
solely of meetings or events related to the Governor's presidential
aspirations do not trigger the so-called "security exception" to the Public
Records Act, see 1 V.S.A. § 317(c)(25), that does not foreclose the
relevance of a security exception to the facts as they may be developed on
remand. Judgments by those responsible for providing security to the
Governor are informed by specific experience. It is reference to that
experience that may best meet the defendants' burden to demonstrate the
factual record necessary to support the application of the security
exception.
_______________________________________
Chief Justice
------------------------------------------------------------------------------
Concurring and Dissenting
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. 2002-190
Herald Association, Inc., Supreme Court
Times Argus Association, Inc. and
DiCapo Publishing, Inc.
On Appeal from
v. Washington Superior Court
Governor Howard Dean, M.D. and June Term, 2002
State of Vermont
Alan W. Cheever, J.
Robert B. Hemley and Christina Reiss of Gravel and Shea, Burlington,
for Plaintiffs-Appellees.
William H. Sorrell, Attorney General, William E. Griffin, Chief
Assistant Attorney General, and Mark J. Di Stefano, Assistant Attorney
General, Montpelier, for Defendants-Appellants.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
SKOGLUND, J., concurring in part, dissenting in part. The
fundamental question presented by this appeal is whether the public
interest in disclosure of the Governor's daily calendars outweighs the
chief executive's interest in maintaining the confidentiality of those
documents. The Court declines to answer this question in today's decision.
Instead the majority holds that information in the Governor's calendars
showing "meetings or events unrelated to executive policy making or
deliberations, including meetings and events related to Governor Dean's
consideration of a potential bid for President of the United States," ante,
at 8-9, is not sufficiently related to
gubernatorial policymaking or deliberations to qualify for confidential
treatment under the executive privilege and must be disclosed.
I concur with this general conclusion. However, the Court then sends
the case back to the trial court for another look at those portions of the
Governor's scheduling calendar that list meetings or events related to the
Governor's deliberations and policy making, including meetings with the
Governor's staff, members of his cabinet, other Vermont state government
officials, and other individuals because "the Governor's general claim of
executive privilege lacks the specificity necessary to determine whether
the remaining calendar entries are exempt from public disclosure." Id. at
9.
I respectfully submit that the trial court had affidavits before it
that established a prima facie case for executive privilege. I submit
further that the rationale set forth in those affidavits is fully
applicable to those portions of the Governor's calendar that the Court has
remanded for further consideration, and that the affidavits are
sufficiently specific to meet the chief executive's burden. I would decide
the issue presented.
On the record before us, I would hold that the trial court erred in
concluding that the calendars contain only factual information and that
"communications to the governor that are primarily factual are not
protected from disclosure by executive privilege." As explained more
fully below, the fact/opinion dichotomy is contrary to the decisional law
governing this area, contrary to the record in this case, and contrary to
common sense and political reality. A remand without deciding whether the
trial court's approach was sound is inefficient. For these reasons, I
respectfully dissent.
First, let me state the obvious. Information on the Governor's
activities, appearances, and events in the national political arena are
currently available to the press and all members of the public on the
Governor's action committee website - Fund for a Healthy America. Second,
I agree with the Court's conclusion that the Governor's schedule is a
"public record" under the Public Records Act, and that the Governor is
subject to the Act.
These preliminary matters aside, it is important to emphasize that,
while new to this Court, the fundamental question presented - whether
executive privilege may apply to the Governor's calendars - is governed by
principles that are well settled. We have recognized that the doctrine of
executive privilege has both "constitutional and common law roots."
Killington, Ltd. v. Nash, 153 Vt. 628, 636, 572 A.2d 1368, 1374 (1990). At
both the state and federal levels, the doctrine is inextricably linked to
the principle of separation of powers; the executive privilege "'protects
and insulates the sensitive decisional and consultative responsibilities of
the Governor which can only be discharged freely and effectively under a
mantle of privacy and security.'" Id. (quoting Nero v. Hyland, 386 A.2d 846, 853 (N.J. 1978)). Indeed, we have held that the "need for honest and
open communication between the chief executive and advisors" distinguishes
the Governor from all other executive agencies, which - unlike the Governor
- may be required to demonstrate that withheld documents are both
"pre-decisional" and related to a particular decision. New England
Coalition for Energy Efficiency and the Environment v. Dean, 164 Vt. 337,
342, 670 A.2d 815, 818 (1995). "The decision-making process of the chief
executive," in contrast, does not lend itself to such arbitrary
"linedrawing." Id. at 341-42, 670 A.2d at 818.
As numerous courts, including our own, have noted, the privilege
protects "the deliberative process of government and not just deliberative
material." Times Mirror Co. v. Superior Court, 813 P.2d 240, 250 (Cal. 1991) (quoting Mead Data Cent., Inc. v. U.S. Dept. of
Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977)) (emphasis in original). The
interest protected ultimately is not the Governor's right to keep secrets,
but the people's right to a fully informed and effective government. "By
promoting the effectiveness of the governing process, the privilege
protects the welfare of the public, not the government official." New
England Coalition, 164 Vt. at 345, 670 A.2d at 820.
The separation-of-powers principle at the heart of the executive
privilege informs the procedure for resolving disputes, as well. To invoke
the privilege, the executive must file a supporting affidavit. The
affidavit must be based on "'actual personal consideration'" by the
responsible official, specifically identify the documents for which the
privilege is claimed, and explain why the documents are protected by the
privilege. Id. at 344, 670 A.2d at 820 (quoting United States v.
Reynolds, 345 U.S. 1, 7-8 (1953)).
Such an affidavit is sufficient to make out a prima facie claim. Once
that is established, "the requester has the burden of providing reasons why
the need for the information outweighs the interest in confidentiality."
Killington, Ltd., 153 Vt. at 639, 572 A.2d at 1375. This procedure thus
"allows the executive branch to self-certify a basis for executive
privilege," while accommodating "appropriate [judicial] review at sensitive
junctures in the process." Id. at 641, 572 A.2d at 1376.
The Governor has fully complied with these requirements. In response
to the petitioners' suit for disclosure of his daily and weekly schedules,
the Governor submitted affidavits by two high level policy advisors
identifying the documents in question, their contents, the manner in which
they are produced, the specific persons to whom they are distributed, and
the reasons for their confidential nature under the executive privilege.
The trial court nevertheless ruled in favor of petitioners,
finding that the calendars contained no express advice or opinions, and
summarily concluding therefore that the privilege did not apply.
It is commonplace to observe at the threshold of such cases that the
executive-privilege doctrine protects materials connected to deliberations
and policy advice, not purely factual information. This statement
generally marks the beginning of a court's discussion, however, not the
end of analysis. As noted in Hamilton v. Verdow, 414 A.2d 914, 925-26 (Md.
1980) (emphasis added) (internal citations omitted):
However, material cannot always "easily be separated into fact
finding and decision making categories." Moreover, some factual
material is entitled to a degree of protection under the
privilege, although not to the same extent as opinions and
recommendations. This would include facts obtained upon promises
or understandings of confidentiality, investigative facts
underlying and intertwined with opinions and advice, and facts the
disclosure of which would impinge on the deliberative process.
We are not the first court to consider whether calendars, schedules,
or similar materials setting forth the time, place, subject matter, or
identity of persons involved in private discussions with the Governor
reveal "facts the disclosure of which would impinge on the deliberative
process." Most other courts have found that disclosure of such documents
would substantially impair the Governor's deliberative and decisionmaking
functions, and have concluded that a generalized public interest in the
Governor's activities is insufficient to overcome the claim of executive
privilege. See Times Mirror Co., 813 P.2d at 251-53 (concluding that
disclosure of Governor's calendars and schedules would reveal the
"substance or direction of the Governor's judgment and mental processes,"
and that "the public interest in nondisclosure clearly outweighs the public
interest in disclosure"); Courier-Journal v. Jones, 895 S.W.2d 6, 10 (Ky.
Ct. App. 1995) (relying on "the logic
of Times Mirror" to hold that Governor's daily appointment ledgers are
exempt from disclosure under Open Records Act); Taylor v. Worrell Enters.,
Inc., 409 S.E.2d 136, 138 (Va. 1991) (plurality opinion holding that
disclosure of Governor's phone records would have undue "chilling effect"
on Governor's use of telephone to confer with others); but cf. Office of
the Governor v. Washington Post Co., 759 A.2d 249, 271-73 (Md. 2000)
(Governor not entitled to blanket claim of executive privilege over
telephone records and schedules, but may establish on remand that
disclosure of specific information would interfere with deliberative
process.)
In so holding, the courts have rejected the artificial fact/substance
dichotomy that formed the basis of the trial court's decision. Instead the
critical inquiry, as the California Supreme Court observed, is "less on
the nature of the records sought and more on the effect of the records'
release." Times Mirror, 813 P.2d at 250 (emphasis added). The key
question is whether disclosure " 'would expose an agency's decisionmaking
process in such a way as to discourage candid discussion within the agency
and thereby undermine the agency's ability to perform its functions.' "
Id. (quoting Dudman Communications v. Dept. of Air Force, 815 F.2d 1565,
1568 (D.C. Cir. 1987)). (FN1)
Applying this test, the courts have concluded that factual data
identifying the time, place, and identity of participants in discussions
with the Governor "is the functional equivalent of revealing the substance
or direction of the Governor's judgment and mental processes; such
information would indicate which interests or individuals he deemed to be
of significance with respect to critical issues of the moment. The
intrusion into the deliberative process is patent." Times Mirror, 813 P.2d
at 251. The court's conclusion in Courier-Journal was the same, noting
that "while the raw material in the Governor's appointment calendars and
schedules is factual, its essence is deliberative." 895 S.W.2d at 8
(quoting without citation Times Mirror, 813 P.2d at 251-52); see also
Taylor, 409 S.E.2d at 138-39 (rejecting assertion that telephone data from
Governor's office was "devoid of substantive information," and finding on
the contrary that it had "intrinsic significance"); Cofield v. City of
LaGrange, 913 F. Supp. 608, 615 (D. D.C. 1996) (observing that agency's "act
of compiling information" may reflect "exercise of judgment by agency"
requiring protection of purely factual material).
Compelled disclosure of such information, the courts have also
concluded, would ultimately inhibit the flow of information to the
Governor. "If the law required disclosure of a private meeting between the
Governor and a politically unpopular or controversial group, that meeting
might never occur." Times Mirror, 813 P.2d at 251; accord Courier-Journal,
895 S.W.2d at 8 (quoting Times Mirror). Even routine meetings between the
Governor and other lawmakers, lobbyists or citizens groups might be
inhibited if the meetings were regularly revealed to the public. As the
court in Taylor stated: "A lack of candor or an unwillingness to
participate in the decision making process is as likely to flow from the
compelled disclosure of the fact of consultation as from the disclosure of
the content of the consultation." 409 S.E.2d at 139 (emphasis added); see
also Cofield, 913 F. Supp. at 617 (holding that agency documents with
"internal routing notations" were exempt from disclosure "because such
notations may reasonably lead to identification of those individuals
involved in the decisionmaking process, a result that could chill open and
frank discussions within the agency, undermining the deliberative
process").
The record in this case underscores the soundness of the reasoning of
the courts cited above. In her affidavit, Kathleen O'Connor, a principal
advisor to the Governor, described the complex process of creating the
Governor's daily schedule and how it ultimately reflects the relative
importance of the various items included. Meetings with local, state, and
federal legislators, discussions with advisors, interviews with potential
appointees, and private conversations with individuals on policy issues are
all included in the schedule. These meetings, O'Connor notes, provide the
Governor with "a variety of different viewpoints, including viewpoints
which are unpopular." O'Connor goes on to explain that in her experience,
many private meetings "without the glare of media attention" are essential
for the Governor to obtain such viewpoints and to formulate policy, and she
cautions that the flow of information to the Governor would be tangibly
inhibited if the schedules were disclosed. Kathleen Hoyt, a public
servant with nearly thirty years of experience, and the current Secretary
of Administration, stated unequivocally in her affidavit that "public
disclosure of the governor's daily schedule would compromise the governor's
ability to receive frank advice" and erode his ability to formulate policy.
Petitioners filed no affidavits or other evidentiary materials to
rebut these statements grounded in decades of political experience.
Whether the affidavits set forth undisputed "facts" entitled to acceptance
on summary judgment, or mere "opinions" as petitioners claim, they are
certainly informed reflections of the reality of public-policy
decisionmaking deserving of considerable weight, as courts elsewhere have
found. Disclosure of the existence of such meetings, their time and
place, subject matter, and the identity of the participants would, in fact,
provide a
window into the substance or direction of the Governor's judgment and
mental processes, and exert a chilling effect on the willingness of
persons, particularly those outside of government, to participate in such
meetings.
This case presents the separation-of-powers principle underlying the
executive privilege doctrine in its starkest form. The Governor has
asserted the privilege over his own daily schedule of activities, including
various private meetings with advisors and individuals both in and out of
government, which detail the subject of the meetings, their time and
location, and the identity of the participants. He contends that although
the documents in question do not contain the substance of those
discussions, they nevertheless reflect an exercise of judgment offering a
window onto the deliberative processes of his office, and require
protection to preserve the full opportunity for frank expression and
discussion at the executive level.
I do not suggest that judicial respect for the integrity of the
executive branch requires that we simply defer to the Governor's view on
the scope of the executive privilege. I do believe, however, that a
careful and balanced review of the pertinent cases and arguments leads to
the conclusion that although - in the words of Times Mirror - "the raw
material in the Governor's appointment calendars and schedules is factual,
its essence is deliberative." 813 P.2d at 251-52. Accordingly, I would
hold that the Governor is entitled to claim executive privilege over his
daily and weekly schedules.
It remains, therefore, to answer the essential question posed by this
appeal: whether the asserted interests in disclosure of the Governor's
schedules outweigh the claim of executive privilege. To overcome the
presumption of confidentiality, petitioners here argue that they, and the
public, are entitled to the Governor's daily schedules "based upon a need
to determine how Governor
Dean is expending public funds and resources, and how he is allocating his
time and energies between his official duties as Governor of the State of
Vermont and his political aspirations" to run for President of the United
States. The schedules will reveal "whether his efforts to secure and
enhance his political future are taking precedence over his daily duties
and responsibilities as Governor of the State of Vermont."
I have no quarrel with the Court's conclusion that meetings and events
specifically related to the Governor's consideration of a potential
presidential race are sufficiently divorced from the executive
decisionmaking process as to fall outside the scope of the privilege,
although I note that such information is generally available elsewhere.
Petitioners did not, however, limit their request to such specific
information, but requested disclosure of the all of the calendars in their
entirety, so as to compare the time spent on the Governor's national
campaign with his time spent governing Vermont. It is here that I part
company with petitioners, and the Court.
No extensive discussion is necessary to establish that we are a
society dedicated to the concept of open government. Whether our elected
officials are diligently attending to their public duties is a legitimate
source of concern and a valid argument for disclosure of records kept in
the course of agency business. The real issue is not whether petitioners'
arguments have substance, but whether they are sufficient to overcome the
Governor's assertion of executive privilege in this case.
A similar argument was raised by the petitioners in Times Mirror, who
sought the Governor of California's schedules to determine whether he was
diligently attending to his official duties. In concluding that this
general interest was insufficient to overcome the Governor's claim of
executive privilege, the court made the following observation, which I
believe applies with equal force here:
The answer to [petitioners'] arguments is not that they lack
substance, but pragmatism. The deliberative process privilege is
grounded in the unromantic reality of politics; it rests on the
understanding that if the public and the Governor were entitled to
precisely the same information, neither would likely receive it.
Politics is an ecumenical affair; it embraces persons and groups
of every conceivable interest: public and private; popular and
unpopular; Republican and Democratic and every partisan stripe in
between; left, right and center. To disclose every private meeting
or association of the governor and expect the decisionmaking
process to function effectively, is to deny human nature and
contrary to common sense and experience.
813 P.2d at 252 (emphasis in original).
The cogency of this response to petitioners' claim is - in my view -
self-evident, and leads inescapably to the conclusion that, without more, a
general desire to determine how the chief executive's time has been spent
is insufficient to overcome the Governor's interest in maintaining the
confidentiality of his or her daily schedules. It is possible, of course,
simply to reject the premise that potential participants in the political
process will be inhibited by the prospect of publicity, or to accept it but
insist that they be made of sterner stuff. To assert a knowledge superior
to that of experienced officials and other courts that have addressed this
issue, however, requires a degree of certainty than I am unwilling to
claim.
Moreover, we need not conclude that the Governor's schedules must
remain inviolate under all circumstances. A future case, based on a more
compelling showing of need - evidence, for example, of corruption, misuse
of public funds, or gross dereliction of duty - could lead to a different
conclusion. I would simply hold that on the record before us, the
presumption of confidentiality has not been overcome. Therefore, I would
reverse the judgment.
Although it is not necessary, in my view, to address the Governor's
subsidiary claim based on the security exception under the Public Records
Act, the issue compels comment. The Governor argued in his pleadings that
the schedules were exempt from disclosure under § 317(c)(25), which allows
an agency to withhold "passwords, access codes, user identification,
security procedures and similar information the disclosure of which would
threaten the safety of persons or the security of public property." He
filed an affidavit by the commander of his security detail, a state police
lieutenant and a law enforcement officer with twenty years' experience,
attesting to the fact that disclosure of the detailed information in the
schedules regarding the Governor's daily itinerary would "pose a
substantial security risk to the Governor and those with whom he
interacts." Petitioners disputed the claim on the ground that it was
unduly speculative, and the trial court agreed.
Security is a malleable concept. Patterns of activity such as travel
itineraries, hotel accommodations, means of transportation, times of
arrival and departure, and persons traveling with the Governor may reflect
decisions relating not only to the Governor's convenience, but to his
security, as well. Thus, the detailed schedules themselves constitute a
form of security. They are treated as such by the Governor's office, which
maintains strict confidentiality in their distribution, and that security
protocol should not be broken.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Even the one decision which declined to hold unequivocally for the
Governor recognized that purely factual material contained in the
Governor's telephone records and appointment schedules might contain
information from which substantive content could be inferred. See Office
of the Governor, 759 A.2d at 271-72. It held, however, that the Governor
was not entitled to a "blanket claim of executive privilege" with respect
to the materials sought and the burden-shifting presumption attendant
thereto. Id. at 271-72. Instead it remanded to the trial court to allow
the Governor to make an evidentiary showing that specific factual
information in the records sought "will interfere with the deliberative
process in the Governor's Office." Id. at 273.
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