Judicial Watch, Inc. v. State

Judicial Watch, Inc. v. State (2004-209); 179 Vt. 214; 892 A.2d 191

2005 VT  108

[Filed 04-Nov-2005]

[Motion for Reargument Denied 21-Dec-2005]


       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.


                                2005 VT  108

                                No. 2004-209


  Judicial Watch, Inc.	                         Supreme Court

                                                 On Appeal from
       v.	                                 Washington Superior Court


  State of Vermont,	                         March Term, 2005
  Deborah L. Markowitz, Secretary of State,  
  Gregory Sanford, State Archivist and 
  Howard Dean, M.D., Former Governor


  Alan W. Cook, J.

  Andrew D. Manitsky of Gravel and Shea, Burlington, and Paul J. Orfanedes,
    Judicial Watch, Inc.,  Washington, DC,  for Plaintiff-Appellee.	

  William H. Sorrell, Attorney General, William E. Griffin, Chief Assistant
    Attorney General and Mark J. Di Stefano, Assistant Attorney General,
    Montpelier, for Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and 
            Gibson, J. (Ret.), Specially Assigned

       ¶  1.  SKOGLUND, J.   We accepted this interlocutory appeal to
  determine whether the Secretary of State may enter into an agreement with a
  retiring Governor to restrict public access to a portion of the Governor's
  official correspondence for a period of ten years after the Governor leaves
  office.  We conclude that the restriction is permissible under Vermont law,
  and therefore reverse the trial court judgment to the contrary.   

       ¶  2.  The material facts are largely undisputed.  In preparation for
  his impending retirement, Governor Howard Dean entered into a memorandum of
  understanding with the Secretary of State regarding the archival storage of
  his gubernatorial papers.  The memorandum, signed in early January 2003 by
  the Governor, the Secretary of State, and the Attorney General, states that
  its purpose "is to establish clear guidelines to govern public access to
  'the official correspondence of the Governor' under 3 V.S.A. § 4(a), (FN1)
  and sets forth "special terms and conditions of restriction" for any
  official correspondence determined by the Governor to be covered by
  executive privilege, under provisions of the State Archives Act, formerly
  codified at 3 V.S.A. § 117(a)(2) (now codified at 3 V.S.A. § 117(g)(9)).
  (FN2)  The terms and conditions include the proviso that any correspondence
  determined by the Governor to be covered by executive privilege will be
  open to the public commencing on January 10, 2013, ten years hence.  Until
  that time, the privileged records will be sealed, and accessible in only a
  few limited circumstances, including written authorization from Governor
  Dean, or "[p]ursuant to a valid court order." 
     
       ¶  3.  Although the trial court made no specific findings on the
  volume of the records at issue, it was undisputed that the State archives
  acquired approximately 320 cubic feet of records from Governor Dean (one
  cubic foot is the equivalent of one standard-size storage box), of which
  approximately 150 cubic feet were designated as containing privileged
  material.  The Governor later reduced the number of sealed gubernatorial
  records to approximately 93 cubic feet.  
   
       ¶  4.  In August 2003, following Governor Dean's retirement,
  plaintiff Judicial Watch, Inc., a self-described "watchdog" organization
  based in Washington, D.C., filed a request under the Public Records Act, 1
  V.S.A. §§ 315-320 (hereafter "PRA" or "Act"), to inspect and copy all of
  Governor Dean's gubernatorial papers.  The Secretary denied the request for
  access to the records that had been sealed pursuant to the memorandum of
  understanding, noting that they were governed by the provision of the State
  Archives Act applicable to archived records and the "special terms or 
  conditions" attached thereto, under 3 V.S.A. § 117(g)(9), rather than by
  the PRA.  Plaintiff then filed this action in superior court, seeking to
  compel the Secretary to comply with its PRA request.  The State answered
  and filed a counterclaim, seeking a declaration that the Governor's records
  were validly sealed under the memorandum of understanding and not subject
  to disclosure under the Act.
   
       ¶  5.  Plaintiff subsequently moved for judgment on the pleadings. 
  The State opposed the motion, arguing that plaintiff had failed to
  demonstrate as a matter of law that the memorandum of understanding was
  invalid, and asserting that the case should be decided on the basis of
  summary judgment following additional factual development.  The trial court
  issued an initial decision in February 2004, concluding that the Archives
  Act did not authorize the Secretary to restrict access to records deemed to
  be privileged by Governor Dean; that the records in question were governed
  by the PRA; and that, as this Court has recognized, a prima facie claim of
  executive privilege under the Act's exception for "common law privilege," 1
  V.S.A. § 317(c)(4), requires a showing specifically identifying the
  document in question and the basis for the privilege.  See New England
  Coalition v. Office of the Governor, 164 Vt. 337, 344, 670 A.2d 815, 820
  (1995) ("The executive must specifically identify the documents for which
  the privilege is claimed, and must explain why the documents are protected
  by the privilege.").  The court then set forth a tentative process for
  adjudicating any claims of executive privilege that the State might choose
  to assert with respect to specific documents in the archived records.

       ¶  6.  The State moved for reconsideration of the court's decision or,
  in the alternative, for permission to file an interlocutory appeal.  The
  State also submitted a memorandum addressed to the proposed process for
  adjudicating executive privilege claims.  The State's memorandum included a
  request for an order requiring plaintiff to pay the estimated $18,900 in
  staff costs that would be incurred in creating a guide to the sealed
  documents, and the estimated $168,750 in costs for summarizing the contents
  of the documents.  Plaintiff filed a consolidated response to the State's
  motion and memorandum.  In May 2004, the trial court issued a second
  decision, denying the State's motion for reconsideration and request for
  payment of staff costs, but granting the motion for interlocutory appeal. 
  We accepted review to address an issue of significant public interest and
  importance.  
   
       ¶  7.  While we recognize the competing public-policy interests
  vigorously advanced by the parties in this case, the issue-in our
  view-turns principally on statutory language and meaning.  See In re
  Huntley, 2004 VT 115, ¶ 6, 15 Vt. L. Wk. 385, 865 A.2d 1123 (mem.) (in
  determining statutory meaning, we are guided by the Legislature's intent as
  evidenced principally by the language of the statutes themselves).  The PRA
  provides a broad right of access to public records, qualified by a list of
  specific exceptions that must be strictly construed in favor of disclosure. 
  Springfield Terminal Ry. v. Agency of Transp., 174 Vt. 341, 345, 816 A.2d 448, 452 (2002).  The State Archives Act, 3 V.S.A. § 117, confers broad
  authority on the Secretary of State, through the division of state
  archives, to implement and administer an archival management program, id. §
  117(b), identify and take custody of "archival records" of "continuing
  legal, administrative, or historic value," id. § 117(a)(2), preserve such
  records for "their use by government officials, educators, historians, and
  the public," id. § 117(g)(8), and "permit the public to inspect, examine,
  and study the archives, provided that any record placed in the keeping of
  the office of the secretary of state under special terms or conditions of
  law restricting their use shall be made accessible only in accord with
  those terms and conditions," id. § 117(g)(9).  Retiring governors are
  required by statute to deposit their "official correspondence" with the
  Secretary of State for preservation in the archives.  Id. § 4(a).  

       ¶  8.  It is axiomatic that "[i]n construing conflicting statutes that
  deal with the same subject matter, the more specific provision controls
  over the more general one."  Stevenson v. Capital Fire Mut. Aid Sys., Inc.,
  163 Vt. 623, 625, 661 A.2d 86, 88 (1995) (mem.); accord State v. Benoir,
  174 Vt. 632, 633, 819 A.2d 699, 702 (2002) (mem.).  Although it is
  undisputed that a governor's official correspondence falls within the
  general scope of public records subject to the PRA, it is also apparent
  that these materials represent a specific subset of public records subject
  to more precise statutory control.  As noted, a distinct provision, 3
  V.S.A. § 4(a), requires that retiring governors deposit their official
  correspondence with the Secretary of State for archival preservation, and
  the Archives Act specifically states that archived materials "placed in the
  keeping of the office of the secretary of state under special terms or
  conditions of law restricting their use shall be made accessible only in
  accord with those terms and conditions."  Id. § 117(g)(9).  Thus,
  notwithstanding the general right of access to public records under the
  PRA, the more specific and exacting legislative requirements that a
  retiring governor's official correspondence be placed in the state archives
  and that such records be made "accessible only in accord with" the special
  terms or conditions restricting their use, must control.  The statutes, in
  short, evince an express legislative intent to authorize the "special term"
  restricting access to the former Governor's archived records.
   
       ¶  9.  Our reading of the statutory text finds additional support in
  two external sources. See In re Hinsdale Farm, 2004 VT 72, ¶ 5, 177 Vt.
  115, 858 A.2d 249 (legislative history and circumstances surrounding
  statute's enactment may be helpful in discovering legislative intent);
  State v. Ben-Mont Corp., 163 Vt. 53, 57, 652 A.2d 1004, 1007 (1994) (in
  determining legislative intent, court may look to statutory framework and
  history).  First, although the legislative history is limited, we note that
  the principal witness in support of the Archives Act, state archivist
  Gregory Sanford, testified before the Senate Government Operations
  Committee that the primary purpose of the legislation was to "recognize the
  current realities" of archival records and management, to reflect current
  practices, and to give "explicit recognition of archival programs" then in
  existence.  Hearing on H. 338 Before Senate Comm. on Gov't Operations,
  1989-1990 Bien. Sess. (Vt. Apr. 18, 1990) (Statement of Gregory Sanford).  
  In an affidavit in support of the State's motion for reconsideration,
  William Dalton, the Deputy Secretary of State, stated without dispute that
  prior to the enactment of the Archives Act in 1990, the Secretary had
  received official gubernatorial papers from retiring Governors Deane C.
  Davis in 1973, and Thomas P. Salmon in 1976, in each case conditioned on a
  two-year restriction on public access.  The legislative history thus
  supports the conclusion that one purpose of the Archives Act was to codify
  the Secretary's longstanding practice-separate and apart from any
  limitations contained in the PRA-of accepting retiring governors' official
  papers with broad restrictions on public access for periods of years.   

       ¶  10.  A second consideration in our interpretation of the statutes
  is the Secretary of State's longstanding construction and implementation of
  the Archives Act.  "Absent compelling indications of error, interpretations
  of administrative regulations or statutes by the agency responsible for
  their execution will be sustained on appeal."  In re Capital Inv., Inc.,
  150 Vt. 478, 482, 554 A.2d 662, 665 (1988).  The record here reveals that
  within months of the enactment of the Archives Act, then-Secretary of State
  James H. Douglas entered into an agreement with outgoing Governor Madeleine
  Kunin for receipt of her official correspondence.  Like the memorandum at
  issue here, the agreement  restricted public access to those papers
  designated by the Governor as covered by executive privilege. (FN3)  In so
  doing, the agreement specifically referenced the recently enacted provision
  of the Archives Act, now codified at 3 V.S.A. § 117(g)(9), providing that
  records placed with the Secretary "under special terms or conditions of law
  restricting their use shall be made accessible only in accordance with
  those terms and conditions."  In 1992, Secretary Douglas entered into a
  similar agreement to restrict public access for six years to the papers of
  the late Governor Richard A. Snelling, again referencing the "special terms
  or conditions" provision of the Archives Act.     

       ¶  11.  Thus, since its inception, the Secretary of State's practice
  under the Archives Act has been to accept gubernatorial papers subject to
  special terms or conditions broadly and independently limiting access to
  materials designated by the outgoing governor as privileged.  The
  administering agency's interpretation of the statute is consistent with its
  plain language and legislative history, and is therefore entitled to
  substantial deference.  See State v. Int'l Collection Serv., Inc., 156 Vt.
  540, 545-46, 594 A.2d 426, 430 (1991) (we give "substantial deference" to
  interpretation of agency charged with administration of statute). 
  Together, these sources definitively demonstrate the statutory validity of
  the special term limiting access to the gubernatorial papers at issue here. 
  The trial court's conclusions that the ten-year restriction violated the
  PRA, and that the State was separately required under the Act to make a
  specific prima facie showing of executive privilege for each document in
  question, were therefore erroneous. 
   
       ¶  12.  Plaintiff's several arguments to the contrary are not
  persuasive.   First, plaintiff argues that giving effect to the memorandum
  of understanding would contravene decisional law from Vermont and across
  the country.  The argument is premised on cases holding that
  confidentiality provisions in litigation settlement agreements or
  collective bargaining contracts cannot override public records acts.  See,
  e.g., Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101,
  107, 624 A.2d 857, 862 (1993) (labor contract providing for confidentiality
  of grievances "cannot override the provisions of the Public Records Act");
  Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d 1191, 1192-93
  (Alaska 1989) (confidentiality provision in settlement agreement between
  school district and plaintiff was unenforceable under public records act);
  State of Haw. Org. of Police Officers v. Soc'y of Prof'l Journalists, 927 P.2d 386, 412-14 (Haw. 1996) (provision in collective bargaining agreement
  to maintain confidentiality of disciplinary actions against members of
  police department violated public records law); Tribune-Review Publ'g Co.
  v. Westmoreland County Hous. Auth., 833 A.2d 112, 118 (Pa. 2003)
  (confidential settlement agreement between housing authority's insurer and
  its former employee can not override freedom of information statute).  Our
  holding here, however, is not that the ten-year restriction in the
  memorandum of understanding trumps the PRA, but that it is separately
  authorized and controlled by the Archives Act.  Accordingly, these
  decisions are inapposite. 

       ¶  13.  Plaintiff further contends that the memorandum of
  understanding encroaches on the authority of the legislative and judicial
  branches, in violation of the constitutional principle of separation of
  powers.  Vt. Const. ch. II, § 5.  The contention assumes that the PRA
  controls the disposition of a retiring governor's official correspondence,
  an argument that we have rejected.   Plaintiff also relies on the language
  of the Archives Act, asserting that the phrase "special terms or conditions
  of law" in 3 V.S.A. § 117(g)(9) refers solely to pre-existing "legal" or
  statutory restrictions on access to documents set forth in the PRA or other
  statutes.  Thus, plaintiff asserts that only a properly adjudicated claim
  of executive privilege under the PRA qualifies as a "special term or
  condition of law."  
        
       ¶  14.  Plaintiff's argument requires reading the statute to create
  two essentially identical types of restriction: "special terms" of law, 
  and "conditions of law."  Plaintiff offers no explanation, however, as to
  why the Legislature would create a superfluous category.  See In re
  Dunnett, 172 Vt. 196, 199, 776 A.2d 406, 409 (2001) (when interpreting a
  statute, we will not construe it in a way that renders language
  surplusage); State v. Phillips, 142 Vt. 283, 286 n.1, 455 A.2d 325, 327 n.1
  (1982) (declining to construe two statutory clauses as "synonomous" where
  it would render one "mere surplusage").  More to the point, the Legislature
  wrote the statute in the disjunctive, referring to "special terms or
  conditions of law," which under normal rules of construction suggests two
  alternative and distinctive types of restrictions, "special terms" and
  "conditions of law."  See Firefighters of Brattleboro v. Brattleboro Fire
  Dep't, 138 Vt. 347, 351, 415 A.2d 243, 245 (1980) (use of disjunctive in
  statute implies separate and independent categories); Sparkman v. McClure,
  498 So. 2d 892, 895 (Fla. 1986) (use of disjunctive "or" in statute
  "normally indicates that alternatives were intended"); Holzman v. Fiola
  Blum, Inc., 726 A.2d 818, 834 (Md. Ct. Spec. App. 1999) (" 'or' . . . is
  normally disjunctive  and establishes a relationship of contrast" (quoting
  Parrish v. Dist. of Columbia, 718 A.2d 133, 135 (D.C. 1988)).  "Conditions
  of law" is a common reference to existing legal authority, such as the PRA,
  (FN4)  while "special terms"-in contrast-suggests precisely the kind of
  individually crafted and negotiated restrictions at issue here.  See Random
  House Unabridged Dictionary 1831 (2d ed. 1987) (defining "special" as
  "particular, individual, or certain").  Plaintiff's proposed construction,
  therefore, is incompatible with the natural sense and structure of the
  statutory text.  See Rhodes v. Town of Georgia, 166 Vt. 153, 157, 688 A.2d 1309, 1311 (1997) (statutory language should be accorded "natural and
  logical" meaning). 

       ¶  15.  The trial court also relied on a provision in the memorandum
  of understanding stating that the sealed documents would be made accessible
  in limited circumstances, including "[p]ursuant to a valid court order." 
  The court inferred that the exception was intended to incorporate the
  adjudicative requirements for establishing an executive-privilege claim
  under the PRA.  See New England Coalition, 164 Vt. at 344, 670 A.2d  at 820
  (proponent of executive privilege must establish prima facie case,
  specifically identifying document and reasons for privilege).  The trial
  court's inference, however, virtually negates the otherwise clear intent of
  the parties to the agreement to create a broad restriction on access to
  privileged documents under the separate authority of the Archives Act.  The
  court-order exception more logically contemplates circumstances in which a
  court has been persuaded that countervailing interests compel disclosure of
  otherwise privileged documents.  See, e.g., State v. Barbera, 2005 VT 13, 
  ¶ 10, 16 Vt. L. Wk. 57, 872 A.2d 309 (mem.) (recognizing that in some
  circumstances the due process rights of criminal defendants may require
  access to privileged information about alleged victim); Killington, Ltd. v.
  Lash, 153 Vt. 628, 638-39, 572 A.2d 1368, 1374-75 (1990) (established claim
  of executive privilege may be overcome where evidence is essential to
  defendant's right to fair trial or demonstration of alleged governmental
  wrongdoing).  We do not, therefore, interpret the exception to swallow the
  rule.  Nor does the record disclose that plaintiff has claimed or
  demonstrated a specific interest sufficiently compelling to warrant a court
  order overriding the otherwise privileged documents under the memorandum of
  understanding.             
   
       ¶  16.  Finally, plaintiff asserts that a construction of the
  Archives Act permitting retiring governors to broadly restrict access to
  official correspondence that would otherwise have been open to the public
  during their terms of office (subject to a particularized showing of
  executive privilege under the PRA) is illogical and absurd.  We have
  recognized the rule of construction that statutes should not be interpreted
  to produce "absurd or illogical results."  Rhodes, 166 Vt. at 157, 688 A.2d 
  at 1311.  The rule does not, however, provide a license to substitute this
  Court's policy judgments for those of the Legislature.  As the leading
  authority on statutory construction has cautioned, "the absurd results
  doctrine should be used sparingly because it entails the risk that the
  judiciary will displace legislative policy on the basis of speculation that
  the legislature could not have meant what it unmistakably said."  2A N.
  Singer, Statutes and Statutory Construction § 46.07, at 199 (6th ed. 2000). 
  Thus, as one court has cogently explained, the doctrine merely permits an
  otherwise reasonable construction when a plain reading of the statute
  "would produce a result demonstrably at odds with any conceivable
  legislative purpose."  Taylor-Hurley v. Mingo County Bd. of Educ., 551 S.E.2d 702, 710 (W. Va. 2001); see also Colwell v. Allstate Ins. Co., 2003
  VT 5, ¶ 11, 175 Vt. 61, 819 A.2d 727 (declining to reinterpret terms of
  statute under absurd results doctrine where plain reading would not cause
  it to "fail in its essential purpose").  
   
       ¶  17.  That is plainly not the case here.  Although the legislative
  history is limited, the Secretary of State's office-in construing and
  applying § 117(g)(9) of the Archives Act to permit general restrictions on
  gubernatorial papers-has consistently maintained that it "strike[s] a
  balance" between the public interest in preserving a full and complete
  record of a retiring governor's administration for the benefit of future
  historians and the general public, and the governor's interest in
  deferring-for some period of time-access to historical documents deemed
  sensitive or subject to executive privilege.  See Int'l Collection Serv.,
  156 Vt. at 545-46, 594 A.2d  at 430 (administering agency's interpretation
  of statutory meaning entitled to substantial deference). The critical
  importance of broad access to an incumbent governor's records to ensure
  public accountability cannot be doubted.  Yet the Legislature could also
  rationally conclude that the public interest in access to a former
  governor's correspondence is not so urgent or compelling that it could not
  be deferred for some period of time by a general restriction on a portion
  of the records.  We note, in this regard, that other jurisdictions have
  enacted statutes expressly authorizing retiring chief executives to limit
  access to their official papers for periods in excess of the ten-year
  restriction at issue here.  See 44 U.S.C. § 2204(a)(5) (under Presidential
  Records Act, outgoing President may specify durations, "not to exceed 12
  years," restricting access to designated confidential papers); Cal. Gov't
  Code § 6268 (upon leaving office, governor may, by written instrument,
  restrict access to public records transferred to archives for period not in
  excess of "50 years or the death of the Governor, whichever is later");
  Kan. Stat. Ann. § 75-104(e) (subject to certain exceptions, access to
  former governor's papers prohibited during "the lifetime of the former
  governor" except upon his or her consent).  Accordingly, we discern no
  merit to plaintiff's claim that upholding the restriction in this case
  would lead to absurd or illogical results.
   
       ¶  18.  On a variation of the same theme, plaintiff contends that it
  would be absurd to construe the Archives Act to permit the ten-year
  restriction on portions of Governor Dean's correspondence because the
  statute, by its terms, does not expressly limit the extent or duration of
  restrictions by future governors.  Thus, plaintiff argues, a future
  governor could utterly defeat the public interest in disclosure by
  negotiating a permanent restriction on all of his or her official
  correspondence.  While such a case is not before us, we note that the
  statute refers to archived records under terms or conditions
  "restricting"-not prohibiting or foreclosing-their use.  See Random House
  Unabridged Dictionary, supra, at 1642 (defining "restrict" as "to confine
  or keep within limits").  Moreover, as discussed, the legislative history
  of the Archives Act suggests that its purpose was to codify past practice
  based on restrictions of limited scope and duration, and its implementation
  has been consistent with this purpose. Accordingly, we perceive no basis to
  speculate that the statute will invite future abuse, although the
  Legislature obviously remains free to require more specific or limited
  terms of restriction on access to gubernatorial papers if it perceives such
  a need.      

       ¶  19.  For all of the foregoing reasons, we conclude that the trial
  court erred in invalidating the special term of the memorandum of
  understanding restricting access to designated portions of former Governor
  Dean's official correspondence in the State archives.  Our conclusion
  renders it unnecessary to address the State's remaining claims concerning
  the proper allocation of staff costs for the creation of a document index
  under the PRA.    

       Reversed.            


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                 Concurring

       ¶  20.  DOOLEY, J., concurring.   I find this a very close case, but
  I am ultimately persuaded by the history and the legislative history to
  vote for the result reached by the majority.  My unease with the decision,
  however, is caused by the loose and vague drafting of the statutes upon
  which we are relying, compounded by the difficulty in responding under the
  Public Records Act to a request for 550,000 to 600,000 pages of records.  I
  believe the Legislature should act to correct the deficiencies in the State
  Archives Act and the Public Records Act, and write to express my concerns.
   
       ¶  21.  The statute on which our decision relies permits "the public
  to inspect, examine, and study the archives, provided that any record
  placed in the keeping of the office of the secretary of state under special
  terms or conditions of law restricting their use shall be made accessible
  only in accord with those terms and conditions."  3 V.S.A. § 117(g)(9). 
  The majority holds that the restrictions on access contained in the
  memorandum of understanding between the former Governor, the Secretary of
  State, and the Attorney General are "special terms" within the meaning of
  the statute.    

       ¶  22.  Nonetheless, the statutory language remains vague and gives
  little guidance as to what  boundaries, if any, this or another court
  should give to such terms.  The records sought by plaintiff are the
  "property of the state," and the outgoing Governor is required to make "an
  itemized list" of the records and deposit them with the Secretary of State. 
  3 V.S.A. § 4(a).  Nothing in that statute states that the outgoing Governor
  can condition or restrict public access to these state records.  See id. 
  Moreover, although in this case Governor Dean and the Secretary of State
  had an agreement on public access with respect to the records in question,
  nothing in the words "special terms" suggests an agreement is necessary  to
  restrict access.  3 V.S.A. § 117(g)(9).  Nor does the statutory language
  clarify who can or cannot unilaterally set these terms in the absence of an
  agreement.  Id.

       ¶  23.  Further, nothing in the statute suggests that there is any
  limit on the "special terms" that are imposed.  The majority suggests that
  a limit might be found in the words "restricting their use," apparently on
  the theory that a prohibition is not a restriction.  3 V.S.A. § 117(g)(9). 
  But under this theory, a long closure period-for example, for fifty
  years-would be a restriction and not a prohibition.  Moreover, the
  terminology of this phrase "restricting their use" is itself an example of
  loose drafting because it speaks of restriction on "use" and not "access." 
  Id.   In fact, it was the wording of this phrase that led the trial judge
  to rule that 3 V.S.A § 117(g)(9) does not authorize a restriction on
  "access" but only a restriction on "use."
   
       ¶  24.  Nor does the statutory language require a "special term" to
  implement exceptions to public access under the Public Records Act.  In
  this case, Governor Dean has claimed that the records withheld from public
  access fall within executive privilege, but nothing in the language of 3
  V.S.A.  § 117(g)(9) actually requires any documents be subject to executive
  privilege, or any other special requirement, before special terms can be
  made to restrict their use.  In this case, although Governor Dean claims
  executive privilege, we have no way of determining the validity of that
  claim because no review is possible.  Certainly, the quantity of records
  being withheld suggests a great risk that the claim of executive privilege
  is overbroad.  Regardless, even if a record requester could identify a
  particular record with specificity, and prove an executive privilege claim
  to be invalid, the agreement would nonetheless continue to prevent public
  access to the record during the ten-year period because the statutory
  language does not require that executive privilege actually be applicable. 
  My main point is, however, that under the current statute the Governor
  could delay access merely to avoid embarrassment, not because he has a
  legitimate public records exception claim, and that delay would still be
  valid under the statutory terms.

       ¶  25.  Finally, while it is tempting to see this dispute as unusual,
  even unique, the ramifications of our decision are not.  The State Archives
  Act applies to any archival records, defined broadly as public records
  "which have continuing legal, administrative, or historic value."  Id. §
  117(a)(2).  Under this definition, almost any public record is an archival
  record, whether or not the Governor had anything to do with it. (FN5) 
  Thus, under the statute as we have interpreted it, someone-it remains
  uncertain who that someone is-might be able to deny public access to any
  record if it found its way into the division of Vermont state archives with
  a special term restricting access.

       ¶  26.  There are equally serious deficiencies in the coverage of the
  Public Records Act.  After this decision regarding the State Archives Act,
  the records requester can avoid possible future access restrictions by
  simply making a public access request while the Governor is still in
  office.  Given the nature of campaigns for national office, it was apparent
  at the end of Governor Dean's term that he would campaign for national
  office, and the request we are dealing with was initiated by a simple
  letter.  See Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 351, 816 A.2d 469,
  471 (2002) (press sought Governor's travel schedule of trips "related to
  his bid for the United States presidency" before he left office).  A future
  letter requesting access must only be initiated before the Governor, or
  another figure, has the ability to utilize the "special terms" provision in
  the State Archives Act.

       ¶  27.  We are dealing with between 550,000 and 600,000 pages of
  documents.  The record doesn't tell us how many separate documents this
  represents, but it is obvious the number is staggering.  The cost and time
  of cataloging, describing, and claiming exemption (or not) for these
  documents is equally staggering.  The Deputy Secretary of State estimated
  that the staff time necessary to catalog and create a summary description
  of the sealed documents was over 4200 hours.  This did not include the time
  necessary to create the assertion of privilege or exemption for each
  document or the time to litigate any resulting disputes.  

       ¶  28.  The Public Records Act provides that even in exceptional cases
  a ruling on a record request must be made within twelve business days.  1
  V.S.A. § 318(a)(5).  Obviously, a bulk records request of the magnitude
  involved here cannot be answered completely and accurately within the
  statutory time limit, even if the Governor and his or her entire staff did
  nothing but examine, catalog, and review records between the time of
  request and the date of decision.
   
       ¶  29.  The State argued here that plaintiff, Judicial Watch, should
  be required to pay up-front the cost of the staff time to catalog and
  describe the records, a cost initially estimated to approach $115,000, and
  then to reimburse the state for the cost of presenting a written
  justification of each claim of executive privilege.  The superior court
  denied this request because the statute allows the State to "charge and
  collect the cost of staff time associated with complying with a request for
  a copy of a public record."  1 V.S.A. § 316(c).  The court held that the
  statute did not allow the state to charge staff time to resist public
  access: "Such an expansive interpretation could cripple cumbersome requests
  with unnecessarily high expenses.  That the legislature could not possibly
  have intended; the Act is designed to encourage access, not to thwart it."


       ¶  30.  It is impossible to estimate the time and cost that would be
  expended to litigate claims of executive privilege and other public access
  exemptions in records of this type and number.  Certainly, our decisions on
  executive privilege make clear that a complex judgment, affected by a
  number of factors, must be made on each record. See, e.g., Herald Ass's,
  Inc., 174 Vt. at 356-57, 816 A.2d  at 475-76 (claim of executive privilege
  as to a document must be supported by an affidavit "based on 'actual
  personal consideration' by the responsible official" and the official must
  make the determination based on the information in the document so that
  partial disclosure is possible) (internal citations omitted); New England
  Coalition, 164 Vt. at 343-45, 670 A.2d  at 819-20 (1995) (same); Killington,
  Inc. v. Lash, 153 Vt. 628, 637-41, 572 A.2d 1368,1374-76 (1990) (same). 
  Such decisions do not portend speedy adjudication.  Yet, 1 V.S.A. § 319(b)
  regarding Public Record access provides:

    (b)  Except as to cases the court considers of greater importance,
    proceedings before the superior court, as authorized by this
    section, and appeals therefrom, take precedence on the docket over
    all cases and shall be assigned for hearing and trial or for
    argument at the earliest practicable date and expedited in every
    way.

  Further, as a case such as this will generally arise because a requester
  seeks to use disclosed records as soon as possible in the political debate,
  only a speedy resolution of the issue is acceptable.

       ¶  31.  I do not think the Legislature has come to grips with a record
  request of this magnitude.  The time limits in the statute are wholly
  unrealistic for a request of this type, and however we might have ruled on
  the dispute over funding to comply with the statutory mandate, we would
  have been extrapolating from the statutory language to a situation not
  clearly covered by the statute.

       ¶  32.  It would be easy for us to say that the circumstances that
  created this dispute are unique and are not likely to recur once we
  announce this decision.  I think such a reaction would be short sighted and
  overly optimistic.  Indeed, the exposure from this controversy may make
  future requests and cases more likely.  While I agree with the majority
  decision based on the statutes we are required to implement, I don't think
  that the answers in future cases are predictable based on the current state
  of these statutes.  I urge the Legislature to review and clarify them so we
  have a clear road map for the future.  



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes
                 

FN1.  This section provides: "The official correspondence of the governor is
  the property of the state.  Upon retiring from office he or she shall cause
  such correspondence and an itemized list thereof to be deposited with the
  secretary of state.  The secretary of state shall preserve these records in
  accordance with professional archival practices recommended by the state
  archivist."   

FN2.  This section provides that, in fulfilling the duties of the state
  archives program, the state archivist shall "permit the public to inspect,
  examine, and study the archives, provided that any record placed in the
  keeping of the office of the secretary of state under special terms or
  conditions of law restricting their use shall be made accessible only in
  accord with those terms and conditions."

FN3.  The agreement provided for a six-year moratorium on public access,
  subject to exceptions for "a valid court order" or written authorization
  from Governor Kunin.

FN4.  See, e.g., Giampapa v. Am. Family Mut. Ins. Co., 64 P.3d 230, 243
  (Colo. 2003) (noting that courts may decline to apply law of the case
  doctrine "because of changed conditions of law"); West v. Forehand,195 S.E.2d 777, 780 (Ga. Ct. App. 1973) (statutes are presumed to be enacted by
  legislature with full knowledge of existing conditions of law); Driscoll v.
  Harris County Comm'rs Court, 688 S.W.2d 569, 574 (Tex. App. 1984) ("[A]ll
  statutes are presumed to be enacted by the legislature with full knowledge
  of the existing conditions of the law and with reference to it."). 

FN5.  In spite of the broad definition, most public records end up in the
  custody of the Commissioner of Buildings and General Services pursuant to
  Chapter 11 of Title 22, 22 V.S.A. §§ 451-457.  For example, the vast
  majority judiciary case records have gone to the Commissioner and not to
  the Secretary of State, although they have continuing "legal" value.  See
  Vermont Judicial Records Program:  Vermont Archival Judicial Records
  (ninety-six boxes of Vermont judicial records are archived with the
  Secretary of State, while 13,500 cubic feet of judicial records are stored
  at the Vermont Records Center operated by the Commissioner of Buildings and
  General Services), available at
  http://vermont-archives.org/records/vjrp/reports/vtcomp.htm (last visited
  Oct. 31, 2005).  Presumably, the Public Records Act and, in the case of the
  judiciary, the Rules for Public Access to Court Records, governs public
  access to these records.  But, even this conclusion is debatable under the
  vague statutes.