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



------------------------------------------------------------------------------
                                  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.