Kade v. Smith
Annotate this Case
Kade v. Smith (2004-344); 180 Vt. 554; 904 A.2d 1080
2006 VT 44
[Filed 05-Jun-2006]
[Motion for Reargument Denied 10-Jul-2006]
ENTRY ORDER
2006 VT 44
SUPREME COURT DOCKET NO. 2004-344
MARCH TERM, 2005
Barry Kade, Esq. } APPEALED FROM:
}
}
v. } Washington Superior Court
}
Charles Smith, Secretary, }
Agency of Human Services } DOCKET NO. 443-8-03 Wncv
Trial Judge: Alan W. Cook
In the above-entitled cause, the Clerk will enter:
¶ 1. Plaintiff Barry Kade appeals from a superior court judgment
denying his request under the Public Records Act to compel disclosure of
four performance evaluations pertaining to the Superintendent of the
Northern State Correctional Facility in the City of Newport. Plaintiff
contends the court erred in: (1) refusing to examine the requested
documents in camera; (2) ruling that the records contain personal
information exempt from disclosure; (3) failing to balance the competing
interests in privacy and disclosure; and (4) declining to redact those
portions of the records determined to be confidential and releasing the
balance. For the reasons set forth below, we reverse the judgment and
remand for further proceedings.
¶ 2. In June 2003, plaintiff submitted a Public Records Act (PRA)
request to the Department of Corrections (DOC) to provide the performance
evaluation reports relating to Kathleen Lanman, Superintendent of the
Northern State Correctional Facility, for the years 1999 through 2003.
(FN1) The DOC, and later the Secretary of the Agency of Human Services
(Agency), denied the request, claiming that the evaluations were exempt
from disclosure under the "personal documents" exception of the PRA, 1
V.S.A. § 317(c)(7). (FN2) Plaintiff then filed a complaint in superior
court, seeking to compel production of the documents in question. Id. §
319(a). The State moved to dismiss and later moved for summary judgment,
but the court denied both motions for failure to make a specific, factual
showing that the records contained personal information exempt from
disclosure under the statute and our decisions in Trombley v. Bellows Falls
Union High School District No. 27, 160 Vt. 101, 624 A.2d 857 (1993) and
Norman v. Vermont Office of Court Administrator, 2004 VT 13, 176 Vt. 593,
844 A.2d 769 (mem.).
¶ 3. The State then filed a supplemental legal memorandum, together
with a so-called Vaughn index, summarizing the four evaluation reports at
issue. (FN3) Each report was prepared using a standard evaluation form (a
blank form was also provided to the court). The index described the first
section of each report as containing basic information identifying the
subject of the evaluation (in this case Superintendent Lanman); the name of
the employee's supervisor and the person conducting the evaluation (the
index specifically identified the evaluators by name and title); and boxes
for the evaluator to check rating the employee's overall performance from
outstanding to unsatisfactory. The next section of each evaluation
described Lanman's major job duties and performance expectations. These
varied somewhat, but generally included: management of the facility in
accord with its design, staffing allocation, and sexual harassment policy;
management of labor relations; communication with staff; monitoring drug
activity at the facility; balancing offender treatment programs and work
programs; and maintaining working relationships with other superintendents
and DOC directors. The third section contained a narrative setting forth
the supervisor's "comments" concerning the subject's performance of the
major job duties described. The final section contained space for
additional "comments" by the evaluator, the appointing authority, and the
employee.
¶ 4. In addition to the foregoing, the State submitted affidavits
from the Agency's personnel chief, Sharon Wilson, and the Commissioner of
the Department of Personnel, Cynthia LaWare. Wilson described the
performance evaluation reports as "key documents" in the State's evaluation
and promotion of its employees, noted that they were the Agency's principal
"vehicle for providing employees with candid and honest assessments," and
opined that their public disclosure "would create a disincentive for raters
to provide candid and honest evaluations." Wilson also stated her belief
that disclosure "would cause embarrassment to employees even if their
evaluations are very good" by its potential effect on the "morale" of
co-workers receiving lower ratings. LaWare endorsed the view that public
disclosure of performance evaluations would provide a "strong disincentive
to frankness" and "cause friction and undermine morale" among co-workers.
She also suggested that, in Lanman's case, public disclosure might prove
particularly harmful if, as a result, DOC officials became reluctant to
identify performance deficiencies in the area of prison security for fear
of its misuse by inmates.
¶ 5. Based on the foregoing, the trial court concluded that the
evaluations contained material sufficiently personal in nature to fall
within the personal-documents exception. The court then turned to a
consideration of the asserted public interest in disclosure. In this
regard, the court noted that plaintiff relied principally on a recent
report by two independent investigators appointed by the Agency to examine
the recent deaths of seven Vermont inmates. The court found that the
independent report "strongly suggests some instances of negligence or other
impropriety on Ms. Lanman's part which may have contributed to causing
devastating consequences," and noted that the report had prompted an
internal DOC investigation which had yet to be completed. Plaintiff argued
that information in Lanman's evaluations would be useful in supplementing
the investigative report, not so much in terms of evaluating the
superintendent's performance, but in terms of assessing the depth and
quality of her supervision by her superiors within the DOC.
¶ 6. While not denigrating the importance of the public interest
in disclosure, the trial court found that the evaluations-which by nature
deal with general performance rather than specific incidents-would not
significantly advance that interest. They were, in the court's view,
"highly unlikely to be a significant source of smoking gun evidence of
[Lanman's] own impropriety or lack of supervision." Therefore, balanced
against the specific infringement on individual privacy and the more
general impact on "candor when performance evaluations are splayed in
public," the court concluded that the public interest did not weigh in
favor of disclosure. Additionally, the court explained that it had
specifically considered and rejected the possibility of in camera review as
"unnecessary" and had concluded that redaction would drain the records of
so much substance as to "render their release meaningless." Accordingly,
the court denied the request. This appeal followed. (FN4)
I.
¶ 7. As the trial court correctly observed, the pertinent
principles governing plaintiff's request are set forth in Trombley, the
seminal case construing and applying the personal-documents exception, and
our more recent decision in Norman. Trombley involved a PRA request by
residents of the Town of Jericho for all documents relating to the school
board's consideration and rejection of several teachers' grievances
contesting the board's condemnation of the teachers' alleged misuse of the
school letterhead. The trial court ruled that the documents were exempt
from disclosure under the personal-documents exception. In reviewing the
ruling, we stressed that the policy underlying the PRA clearly favors the
right of access, and that exceptions to this policy are to be "construed
strictly against the custodians of the records and any doubts should be
resolved in favor of disclosure." 160 Vt. at 106-107, 624 A.2d at 861
(quotations omitted). Furthermore, the burden is on the agency to "make
the specific factual record necessary to support the exception claim." Id.
(quotations omitted).
¶ 8. Applying these broad principles, we held that, regardless of
label, documents must be evaluated "based on their content rather than
where they are filed" and must be shown to be personal in nature to fall
within the exception. Id. at 108, 624 A.2d at 862. Recognizing that the
term "personal documents" is vague and potentially limitless, id. at 109,
624 A.2d at 863, we held-consistent with the PRA's underlying policy-that
it must be narrowly construed "to apply only when the privacy of the
individual is involved." Id. at 110, 624 A.2d at 863. We explained that
the exception applies only to those documents that "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.' " Id. (quoting Young v. Rice, 826 S.W.2d 252, 255 (Ark. 1992)).
Finally, citing the PRA's express policy of balancing the "right to
privacy" against the need for "specific information . . . to review the
action of a governmental officer," 1 V.S.A. § 315, we held that it is
incumbent upon courts applying the exception "to examine the public
interest in disclosure." Id. at 109-10, 624 A.2d at 863. Because the
trial court had ruled that any information contained in the employees'
disciplinary files was categorically exempt from disclosure, we remanded
with directions to examine the materials in camera and weigh the competing
interests. Id. at 110, 624 A.2d at 863.
¶ 9. In Norman, we considered the personal-documents exception
as applied to material within a former state employee's personnel file
concerning disciplinary action, an employment grievance, and a criminal
records check. Relying on Trombley and the cases cited therein, we
explained that the issue of "[w]hether public records relating to
disciplinary action, performance evaluations, or employee grievances
contain 'personal' information within this exception is a fact-specific
determination, although we note that many courts have held that such
records may contain highly personal, embarrassing information exempt from
disclosure." 2004 VT 13, ¶ 9. We cited, in this regard, several cases
from other states holding that performance evaluations-even if favorable to
the individual-may contain highly sensitive or invasive information exempt
from disclosure under a statutory exemption for private information. Id.
Because the trial court in Norman had failed to address the issue, we
remanded with directions to perform the requisite analysis. Id. ¶ 10.
We noted that the court's options on remand included "redaction as an
alternative to nondisclosure," id., as well as the filing of a separate
decision "under seal setting forth its specific factual findings." Id. ¶
10, n.2. (FN5)
II.
¶ 10. With this background in mind, we turn to plaintiff's claims
on appeal. As noted, the trial court found that the summary set forth in
the State's Vaughn index "sufficiently demonstrates that the information in
Ms. Lanman's evaluations is largely of [a] personal nature reasonably
within (c)(7)." Plaintiff claims that without examining the materials in
camera the trial court could not have made such a fact-specific
determination. Although we have not held that in camera review is required
in every case to determine whether records fall with the personal-documents
exception, we agree that such review is often necessary to properly
evaluate the nature and extent of the alleged invasion of privacy, which in
turn depends on an understanding of the records' contents. That said, we
are satisfied that under the unique circumstances presented here the trial
court did not abuse its discretion in finding that the exception applied
based on the index and supporting affidavits.
¶ 11. As noted, the index revealed that the evaluations contain
comments by Superintendent Lanman's supervisor, and possibly others within
the DOC, critiquing Lanman's performance as a supervisor in a wide range of
areas affecting prison inmates, including monitoring of drug use, sexual
harassment, relations with prison personnel, and offender treatment and
work programs. The evaluations also address Lanman's working relationship
with other prison employees, her fellow superintendents, and her superiors
within the DOC. In the unique context of a prison facility, where an
official's effectiveness and standing are critically dependent on the
respect that he or she commands, the disclosure of such sensitive
information cannot help but expose that official to potentially
embarrassing comment among the prison population, and could even threaten
the official's continued ability to perform the duties of office. This is
precisely the sort of information that we have recognized as falling within
the personal-documents exception. Hence, we cannot conclude that the court
erred in forgoing an in camera review to determine that the exception
applied to at least a portion of the documents in question. (FN6)
¶ 12. We reach a different conclusion, however, with respect to the
trial court's public-interest analysis. The trial court ruled that
disclosure of the performance evaluations would not materially advance the
public interest asserted by plaintiff and that disclosure was therefore
unwarranted. The court relied in this regard on a recent United States
Supreme Court decision, National Archives & Records Administration v.
Favish, 541 U.S. 157 (2004). There, the Court explained that in balancing
an individual's privacy interest against the public interest in disclosure
of records requested under the federal Freedom of Information Act, the
claimant must show first "that the public interest sought to be advanced is
a significant one, an interest more specific than having the information
for its own sake. Second, the citizen must show the information is likely
to advance that interest. Otherwise, the invasion of privacy is
unwarranted." Id. at 172. Applying this two-part analysis, the trial
court here implicitly recognized the significance of the public interest in
uncovering official misconduct or negligence within the prison system but
concluded that the performance evaluations were "highly unlikely" to reveal
evidence of Lanman's own negligence or lack of supervision.
¶ 13. We are not persuaded that the court could properly make such
a determination without examining the records in camera. The evidence here
had advanced the charge of governmental impropriety well beyond mere
speculation. An independent investigation had identified instances in
which the prison system placed inmates at risk through violations of
regulations, lax supervision, and inadequate communication and coordination
between the central office and superintendents, between superintendents,
and between prison officials and mental health workers. Indeed, the court
here expressly found that the report would support "a belief by a
reasonable person in governmental negligence or impropriety, and
specifically that of Ms. Lanman," and further found that "[p]resumably,
some impropriety of Ms. Lanman's may have been caused in turn by
insufficient supervision of her." While it is true, as the trial court
noted, that performance evaluations are not investigative in nature and
focus on general performance rather than specific instances of misconduct,
it is nevertheless reasonable to believe that they might shed light on the
quality and extent of the DOC's supervision of Lanman, on its expectations
of superintendents generally, and on the overall level of accountability
within the DOC. Accordingly, we conclude that the trial court erred in
failing to examine the records in camera to determine the nexus, if any,
between the public interest asserted and the records requested.
¶ 14. Therefore, we hold that the matter must be remanded to the
trial court. On remand, the court is directed to examine the performance
evaluations in camera and balance the interests in privacy and disclosure.
In so doing, the court must consider not only the relevance, if any, of the
records to the public interest for which they are sought, but any other
factors that may affect the balance, including: the significance of the
public interest asserted; the nature, gravity, and potential consequences
of the invasion of privacy occasioned by the disclosure; and the
availability of alternative sources for the requested information. See,
e.g., Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 45 (Iowa 1999)
(recognizing that in balancing privacy interests against public's interest
in disclosure of personal information in personnel records courts typically
weigh the public purpose of disclosure, the gravity of the invasion, and
the availability of alternative sources); Child Prot. Group v. Cline, 350 S.E.2d 541, 543 (W. Va. 1986) (holding that in deciding whether disclosure
of employee's personal information would constitute unreasonable invasion
of privacy courts must decide whether disclosure would result in
"substantial invasion of privacy," the "extent or value of the public
interest," the availability of the information "from other sources," and
whether it is possible to provide relief "so as to limit the invasion").
In addition, the State's Vaughn index suggests that substantial
non-personal information may be contained in the performance evaluations at
issue, including sections outlining Lanman's major job duties and
performance expectations. Therefore, should it determine that the balance
favors nondisclosure, the court must also give careful consideration to
redaction of the personal information and disclosure of the remainder.
Finally, the court may consider the option of issuing a portion of its
factual findings under seal if necessary to maintain confidentiality.
Reversed and remanded for further proceedings consistent with the
views expressed herein.
------------------------------------------------------------------------------
Dissenting
¶ 15. ALLEN, C.J. (Ret.), Specially Assigned, concurring in part
and dissenting in part. I agree that the trial court did not err in
forgoing an in camera review of the performance evaluation reports
requested by plaintiff Barry Kade and determining that they fell within the
exception for "personal documents" found in 1 V.S.A. § 317(c)(7). Ante,
¶ 11. I disagree, however, with the majority's conclusion that, on
remand, the trial court must "balance the interests in privacy and
disclosure" in deciding whether to release the requested information.
Ante, ¶ 14. The plain language of § 317(c)(7) does not call for a
balancing test, and the Court should not read such a requirement into the
statute. Where, as here, the requested documents fall squarely within the
exception, they should be shielded from disclosure. I therefore dissent.
¶ 16. Section 317(c)(7) provides that "personal documents relating
to an individual, including information in any files maintained to hire,
evaluate, promote or discipline any employee of a public agency" are exempt
from disclosure under the Public Records Act. In interpreting this
provision, our goal is to implement the Legislature's intent. Herrick v.
Town of Marlboro, 173 Vt. 170, 173, 789 A.2d 915, 917 (2001). When a
"statute is unambiguous and the words have plain meaning," we must "accept
and enforce that plain meaning as the intent of the Legislature." In re S.
Burlington-Shelburne Highway Project, 174 Vt. 604, 605, 817 A.2d 49, 51
(2002) (mem.). By its terms, § 317(c)(7) does not require a court, or a
records custodian, to weigh an individual's privacy interest against the
public's interest in disclosure in deciding whether the exception applies.
¶ 17. I am not persuaded that the Legislature's general statement
of policy in 1 V.S.A. § 315 can be read to impose a balancing requirement
on documents that fall within § 317(c)(7). Cf. Trombley v. Bellows Falls
Union High Sch. Dist. No. 27, 160 Vt. 101, 110, 624 A.2d 857, 863 (1993)
(interpreting term "personal documents" in § 317(c)(7) and noting that,
consistent with the legislative intent expressed in § 315, the Court "must
also examine the public interest in disclosure"). It is apparent from the
Public Records Act that when the Legislature intended balancing to occur,
it included express language to this effect. See, e.g., 1 V.S.A. §
317(c)(12) (exempting from disclosure "records concerning formulation of
policy where such would constitute a clearly unwarranted invasion of
personal privacy, if disclosed") (emphasis added)). The fact that the
Legislature did not include a similar requirement in § 317(c)(7) "is strong
evidence that a balancing test is inappropriate." Chairman, Criminal
Justice Comm'n v. Freedom of Info. Comm'n, 585 A.2d 96, 100 (Conn. 1991).
¶ 18. Section 315 reflects the Legislature's recognition that the
Public Records Act implicates competing interests in public disclosure and
personal privacy. Consistent with these principles, the Legislature
declared that "certain public records shall be made available to any person
as hereinafter provided." 1 V.S.A. § 315. The Legislature then identified
thirty-five specific exemptions to the public disclosure requirement. See
id. § 317(c)(1)-(35). Presumably, the Legislature balanced the competing
interests identified in § 315 in deciding what type of records would be
exempt from disclosure. See State ex rel. James v. Ohio State Univ., 637 N.E.2d 911, 913-14 (Ohio 1994) (stating that "in enumerating very narrow,
specific exceptions to the public records statute, the General Assembly has
already weighed and balanced the competing public policy considerations
between the public's right to know how its state agencies make decisions
and the potential harm, inconvenience or burden imposed on the agency by
disclosure"); see also Chairman, Criminal Justice Comm'n, 585 A.2d at 100
(reaching similar conclusion). This Court should not read an additional
balancing requirement into § 317(c)(7). See State v. Jacobs, 144 Vt. 70,
75, 472 A.2d 1247, 1250 (1984) (recognizing that it is not "a legitimate
function of this Court to expand a statute by implication, that is, by
reading into it something which is not there, unless it is necessary in
order to make it effective").
¶ 19. Although other courts have employed balancing tests in
determining whether certain documents should be disclosed, they generally
have done so because balancing is required by the legislation at issue. In
National Archives & Records Administration v. Favish, for example, the
relevant statute exempted from disclosure information that "could
reasonably be expected to constitute an unwarranted invasion of personal
privacy." 541 U.S. 157, 160 (2004) (quotations omitted) (emphasis added).
The Supreme Court recognized that the language of the statute required it
to balance the "competing interests in privacy and disclosure." Id. at
172. Similarly, in Child Protection Group v. Cline, the relevant statute
shielded personal information "if the public disclosure thereof would
constitute an unreasonable invasion of privacy, unless the public interest
by clear and convincing evidence requires disclosure in the particular
instance." 350 S.E.2d 541, 543 (W. Va. 1986) (quotations omitted). The
court concluded that the statutory language required it to "balance the
public's need to know against the individual's right to privacy" in
deciding whether records should be released. Id.
¶ 20. In a case with similar facts, the Connecticut Supreme Court
held that the plain language of a privacy exemption under its state freedom
of information act did not require a balancing of a public official's
privacy rights against the public's right to the information. Chairman,
Criminal Justice Comm'n, 585 A.2d at 100. The exemption at issue in that
case shielded personnel files from disclosure when their disclosure "would
constitute an invasion of personal privacy." Id. at 97 n.1 (quotation
omitted). The court found the statutory language unambiguous, and it
refused to read a balancing requirement into the statute in the absence of
a clear statement that one was required. Id. at 100. The court explained
that the structure of the freedom of information act reflected the
legislature's attempt to balance competing interests, and when the
legislature intended additional balancing to occur, it had included
specific statutory language to that effect. Id. It thus concluded that
neither the agency charged with reviewing requests under the act, nor the
courts, were required to engage in a separate balancing procedure beyond
the limits of the statute. Id.
¶ 21. I would reach a similar conclusion here. I recognize that
disclosure is clearly favored under the Public Records Act, and that the
Act should be liberally construed to serve its goals. 1 V.S.A. § 315. But
"liberal construction does not allow us to stretch the language beyond
legislative intent." Elkins v. Microsoft Corp., 174 Vt. 328, 331, 817 A.2d 9, 13 (2002). Where, as here, the meaning of a statute is plain, it must
be enforced according to its terms. In re Middlebury Coll. Sales & Use
Tax, 137 Vt. 28, 31, 400 A.2d 965, 967 (1979). No balancing of interests
is required under § 317(c)(7), and I would therefore hold that the records
at issue in this appeal are exempt from disclosure.
Dissenting: BY THE COURT:
______________________________ ______________________________________
Frederic W. Allen, Chief Paul L. Reiber, Chief Justice
Justice (Ret.), Specially Assigned
______________________________________
John A. Dooley, Associate Justice
______________________________________
Denise R. Johnson, Associate Justice
______________________________________
Marilyn S. Skoglund, Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Plaintiff also requested all other documents generated or submitted as
part of the evaluation process. The State ultimately responded, and the
court found, that there were no documents within this category, and
plaintiff has not challenged this finding.
FN2. This provision exempts from disclosure
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; provided however,
that all information in personnel files of an individual employee
of any public agency shall be made available to that individual
employee or his designated representative.
1 V.S.A. § 317(c)(7).
FN3. The term "Vaughn index" derives from Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973), which involved a request for documents under the federal
Freedom of Information Act. The four documents identified were performance
evaluation reports for the years 1999, 2000, 2001, and 2004. There were no
reports on file for 2002 or 2003.
FN4. In its motion for summary judgment, the Agency also cited 1 V.S.A. §
317(c)(25), which exempts from disclosure "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." The trial court found that the State's factual showing was
insufficient to demonstrate which, if any, material in the evaluations
might pose a security risk and therefore declined to withhold the records
on this basis. The parties have not briefed or argued this point, and we
therefore consider the issue waived. The trial court also reserved ruling
on plaintiff's request for all documents generated by the performance
evaluations, but later found-based on the Agency's supplemental
affidavits-that the files contained no such documents. As noted, plaintiff
has not challenged this finding.
FN5. In asserting that the PRA precludes a balancing of the interests once
it is determined that a record falls within the personal-documents
exception, the dissent implicitly invites the Court to disown its decisions
in Trombley and Norman that hold to the contrary. We are not persuaded of
the necessity or wisdom of such a course. The dissent argues that the
explicit balancing requirement within the exception for records "concerning
formulation of policy," 1 V.S.A. § 317(c)(12) (exempting such records from
disclosure "where such would constitute a clearly unwarranted invasion of
personal privacy"), suggests a legislative intent to preclude a balancing
test where it is not expressly set forth in other exceptions. We are not
persuaded, however, that the inclusion of a balancing test within one
exception necessarily negates the otherwise express, overarching
legislative principle that the "right to privacy . . . ought to be
protected unless specific information is needed to review the action of a
governmental officer." Id. § 315. Furthermore, categorical exemptions of
the kind advocated by the dissent are not, in our view, consistent with the
strong statutory presumption in favor of disclosure.
FN6. In response to plaintiff's assertion that the court mischaracterized the
performance evaluations as personal, the State suggests that they were, in
fact, categorically exempt from disclosure under the personal-documents
exception, which refers to "files maintained to hire, evaluate, promote or
discipline," 1 V.S.A. § 317(c)(7), and that no consideration as to whether
they contain "personal" information as defined in Trombley and Norman was
therefore necessary. Although Trombley concerned employee grievance
records, our holding was clear that the exception turns on the specific
content of the documents requested and not on their label or location in
employment or disciplinary files. 160 Vt. at 108-09, 624 A.2d at 862. In
Norman, we applied this holding to a variety of documents contained in a
former state employee's personnel file, including records relating to
disciplinary actions. 2004 VT 13, ¶ 8. Accordingly, we discern no
merit to the State's argument.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
