Kade v. Smith

Annotate this Case
Kade v. Smith (2004-344); 180 Vt. 554; 904 A.2d 1080

2006 VT 44

[Filed 05-Jun-2006] 

[Motion for Reargument Denied 10-Jul-2006]
     

                                 ENTRY ORDER

                                 2006 VT 44

                      SUPREME COURT DOCKET NO. 2004-344

                              MARCH TERM, 2005

  Barry Kade, Esq.                    }          APPEALED FROM:
                                      }
                                      }
       v.                             }          Washington Superior Court
                                      }  
  Charles Smith, Secretary,           }
  Agency of Human Services            }          DOCKET NO. 443-8-03 Wncv

                                                 Trial Judge: Alan W. Cook

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Plaintiff Barry Kade appeals from a superior court judgment
  denying his request under the Public Records Act to compel disclosure of
  four performance evaluations pertaining to the Superintendent of the
  Northern State Correctional Facility in the City of Newport.  Plaintiff
  contends the court erred in: (1) refusing to examine the requested
  documents in camera; (2) ruling that the records contain personal
  information exempt from disclosure; (3) failing to balance the competing
  interests in privacy and disclosure; and (4) declining to redact those
  portions of the records determined to be confidential and releasing the
  balance.  For the reasons set forth below, we reverse the judgment and
  remand for further proceedings.
        
       ¶  2.  In June 2003, plaintiff submitted a Public Records Act (PRA)
  request to the Department of Corrections (DOC) to provide the performance
  evaluation reports relating to Kathleen Lanman, Superintendent of the
  Northern State Correctional Facility, for the years 1999 through 2003.
  (FN1)    The DOC, and later the Secretary of the Agency of Human Services
  (Agency), denied the request, claiming that the evaluations were exempt
  from disclosure under the "personal documents" exception of the PRA, 1
  V.S.A. § 317(c)(7). (FN2)  Plaintiff then filed a complaint in superior
  court, seeking to compel production of the documents in question.  Id. §
  319(a). The State moved to dismiss and later moved for summary judgment,
  but the court denied both motions for failure to make a specific, factual
  showing that the records contained personal information exempt from
  disclosure under the statute and our decisions in Trombley v. Bellows Falls
  Union High School District No. 27, 160 Vt. 101, 624 A.2d 857 (1993) and
  Norman v. Vermont Office of Court Administrator, 2004 VT 13, 176 Vt. 593,
  844 A.2d 769 (mem.).           

       ¶  3.  The State then filed a supplemental legal memorandum, together
  with a so-called Vaughn index, summarizing the four evaluation reports at
  issue. (FN3)  Each report was prepared using a standard evaluation form (a
  blank form was also provided to the court).   The index described the first
  section of each report as containing basic information identifying the
  subject of the evaluation (in this case Superintendent Lanman); the name of
  the employee's supervisor and the person conducting the evaluation (the
  index specifically identified the evaluators by name and title); and  boxes
  for the evaluator to check rating the employee's overall performance from
  outstanding to unsatisfactory.  The next section of each evaluation
  described Lanman's major job duties and performance expectations.  These
  varied somewhat, but generally included: management of the facility in
  accord with its design, staffing allocation, and sexual harassment policy;
  management of labor relations; communication with staff; monitoring drug
  activity at the facility; balancing offender treatment programs and work
  programs; and maintaining working relationships with other superintendents
  and DOC directors.  The third section contained a narrative setting forth
  the supervisor's "comments" concerning the subject's performance of the
  major job duties described.  The final section contained space for
  additional "comments" by the evaluator, the appointing authority, and the
  employee. 
                           
       ¶  4.  In addition to the foregoing, the State submitted affidavits
  from the Agency's personnel chief, Sharon Wilson, and the Commissioner of
  the Department of Personnel, Cynthia LaWare.  Wilson  described the
  performance evaluation reports as "key documents" in the State's evaluation
  and promotion of its employees, noted that they were the Agency's principal
  "vehicle for providing employees with candid and honest assessments," and
  opined that their public disclosure "would create a disincentive for raters
  to provide candid and honest evaluations."  Wilson also stated her belief
  that disclosure "would cause embarrassment to employees even if their
  evaluations are very good" by its potential effect on the "morale" of
  co-workers receiving lower ratings.  LaWare endorsed the view that public
  disclosure of performance evaluations would provide a "strong disincentive
  to frankness" and "cause friction and undermine morale" among co-workers. 
  She also suggested that, in Lanman's case, public disclosure might prove
  particularly harmful if, as a result, DOC officials became reluctant to
  identify performance deficiencies in the area of prison security for fear
  of its misuse by inmates.  
   
       ¶  5.  Based on the foregoing, the trial court concluded that the
  evaluations contained material sufficiently personal in nature to fall
  within the personal-documents exception.  The court then turned to a
  consideration of the asserted public interest in disclosure.  In this
  regard, the court noted that plaintiff relied principally on a recent
  report by two independent investigators  appointed by the Agency to examine
  the recent deaths of seven Vermont inmates.  The court found that the
  independent report "strongly suggests some instances of negligence or other
  impropriety on Ms. Lanman's part which may have contributed to causing
  devastating consequences," and noted that the report had prompted an
  internal DOC investigation which had yet to be completed.  Plaintiff argued
  that information in Lanman's evaluations would be useful in supplementing
  the investigative report, not so much in terms of evaluating the
  superintendent's performance, but in terms of assessing the depth and
  quality of her supervision by her superiors within the DOC.   

       ¶  6.  While not denigrating the importance of the public interest
  in disclosure, the trial court found that the evaluations-which by nature
  deal with general performance rather than specific incidents-would not
  significantly advance that interest.  They were, in the court's view,
  "highly unlikely to be a significant source of smoking gun evidence of
  [Lanman's] own impropriety or lack of supervision."  Therefore, balanced
  against the specific infringement on individual privacy and the more
  general impact on "candor when performance evaluations are splayed in
  public," the court concluded that the public interest did not weigh in
  favor of disclosure.  Additionally, the court explained that it had
  specifically considered and rejected the possibility of in camera review as
  "unnecessary" and had concluded that redaction would drain the records of
  so much substance as to "render their release meaningless."  Accordingly,
  the court denied the request.  This appeal followed. (FN4)
          
                                     I.
    
       ¶  7.  As the trial court correctly observed, the pertinent
  principles governing plaintiff's request are set forth in Trombley, the
  seminal case construing and applying the personal-documents exception, and
  our more recent decision in Norman.  Trombley involved a PRA request by
  residents of the Town of Jericho for all documents relating to the school
  board's consideration and rejection of several teachers' grievances
  contesting the board's condemnation of the teachers' alleged misuse of the
  school letterhead.  The trial court ruled that the documents were exempt
  from disclosure under the personal-documents exception.  In reviewing the
  ruling, we stressed that the policy underlying the PRA clearly favors the
  right of access, and that exceptions to this policy are to be "construed
  strictly against the custodians of the records and any doubts should be
  resolved in favor of disclosure." 160 Vt. at 106-107, 624 A.2d  at 861
  (quotations omitted).  Furthermore, the burden is on the agency to "make
  the specific factual record necessary to support the exception claim."  Id.
  (quotations omitted).
   
       ¶  8.  Applying these broad principles, we held that, regardless of
  label, documents must be evaluated "based on their content rather than
  where they are filed" and must be shown to be personal in nature to fall
  within the exception.  Id. at 108, 624 A.2d  at 862.   Recognizing that the
  term "personal documents" is vague and potentially limitless, id. at 109,
  624 A.2d  at 863, we held-consistent with the PRA's underlying policy-that
  it must be narrowly construed "to apply only when the privacy of the
  individual is involved."  Id. at 110, 624 A.2d  at 863.  We explained that
  the exception applies only to those documents that "reveal 'intimate
  details of a person's life, including any information that might subject
  the person to embarrassment, harassment, disgrace, or loss of employment or
  friends.' " Id.  (quoting Young v. Rice, 826 S.W.2d 252, 255 (Ark. 1992)). 
  Finally, citing the PRA's express policy of balancing the "right to
  privacy" against the need for "specific information . . .  to review the
  action of a governmental officer," 1 V.S.A. § 315, we held that it is
  incumbent upon courts applying the exception "to examine the public
  interest in disclosure."  Id. at 109-10, 624 A.2d  at 863.  Because the
  trial court had ruled that any information contained in the employees'
  disciplinary files was categorically exempt from disclosure, we remanded
  with directions to examine the materials in camera and weigh the competing
  interests.  Id. at 110, 624 A.2d  at 863.        

       ¶  9.    In Norman, we considered the personal-documents exception
  as applied to material within a former state employee's personnel file
  concerning disciplinary action, an employment grievance, and a criminal
  records check.  Relying on Trombley and the cases cited therein, we
  explained that the issue of "[w]hether public records relating to
  disciplinary action, performance evaluations, or employee grievances
  contain 'personal' information within this exception is a fact-specific
  determination, although we note that many courts have held that such
  records may contain highly personal, embarrassing information exempt from
  disclosure."  2004 VT 13, ¶ 9.   We cited, in this regard, several cases
  from other states holding that performance evaluations-even if favorable to
  the individual-may contain highly sensitive or invasive information exempt
  from disclosure under a statutory exemption for private information.  Id. 
  Because the trial court in Norman had failed to address the issue, we
  remanded with directions to perform the requisite analysis.  Id. ¶ 10. 
  We noted that the court's options on remand included "redaction as an
  alternative to nondisclosure," id.,  as well as the filing of a separate
  decision "under seal setting forth its specific factual findings."  Id. ¶
  10, n.2. (FN5)          

                                     II.

        
       ¶  10.  With this background in mind, we turn to plaintiff's claims
  on appeal.  As noted, the trial court found that the summary set forth in
  the State's Vaughn index "sufficiently demonstrates that the information in
  Ms. Lanman's evaluations is largely of [a] personal nature reasonably
  within (c)(7)."  Plaintiff claims that without examining the materials in
  camera the trial court could not have made such a fact-specific
  determination. Although we have not held that in camera review is required
  in every case to determine whether records fall with the personal-documents
  exception, we agree that such review is often necessary to properly
  evaluate the nature and extent of the alleged invasion of privacy, which in
  turn depends on an understanding of the records' contents.  That said, we
  are satisfied that under the unique circumstances presented here the trial
  court did not abuse its discretion in finding that the exception applied
  based on the index and supporting affidavits.  

       ¶  11.  As noted, the index revealed that the evaluations contain
  comments by Superintendent Lanman's supervisor, and possibly others within
  the DOC, critiquing Lanman's performance as a supervisor in a wide range of
  areas affecting prison inmates, including monitoring of drug use, sexual
  harassment, relations with prison personnel, and offender treatment and
  work programs.  The evaluations also address Lanman's working relationship
  with other prison employees, her fellow superintendents, and her superiors
  within the DOC.  In the unique context of a prison facility, where an
  official's effectiveness and standing are critically dependent on the
  respect that he or she commands, the disclosure of such sensitive
  information cannot help but expose that official to potentially
  embarrassing comment among the prison population, and could even threaten
  the official's continued ability to perform the duties of office.  This is
  precisely the sort of information that we have recognized as falling within
  the personal-documents exception.  Hence, we cannot conclude that the court
  erred in forgoing an in camera review to determine that the exception
  applied to at least a portion of the documents in question. (FN6)  

       ¶  12.  We reach a different conclusion, however, with respect to the
  trial court's public-interest analysis.  The trial court ruled that
  disclosure of the performance evaluations would not materially advance the
  public interest asserted by plaintiff and that disclosure was therefore
  unwarranted.  The court relied in this regard on a recent United States
  Supreme Court decision, National Archives & Records Administration v.
  Favish, 541 U.S. 157 (2004).  There, the Court  explained that in balancing
  an individual's privacy interest against the public interest in disclosure
  of records requested under the federal Freedom of Information Act, the
  claimant must show first "that the public interest sought to be advanced is
  a significant one, an interest more specific than having the information
  for its own sake.  Second, the citizen must show the information is likely
  to advance that interest.  Otherwise, the invasion of privacy is
  unwarranted."   Id. at 172.   Applying this two-part analysis, the trial
  court here implicitly recognized the significance of the public interest in
  uncovering official misconduct or negligence within the prison system but
  concluded that the performance evaluations were "highly unlikely" to reveal
  evidence of Lanman's own negligence or lack of supervision.            
   
       ¶  13.  We are not persuaded that the court could properly make such
  a determination without examining the records in camera.  The evidence here
  had advanced the charge of governmental impropriety well beyond mere
  speculation.  An independent investigation had identified instances in
  which the prison system placed inmates at risk through violations of
  regulations, lax supervision, and inadequate communication and coordination
  between the central office and superintendents, between superintendents,
  and between prison officials and mental health workers.  Indeed, the court
  here expressly found that the report would support "a belief by a
  reasonable person in governmental negligence or impropriety, and
  specifically that of Ms. Lanman," and further found that "[p]resumably,
  some impropriety of Ms. Lanman's may have been caused in turn by
  insufficient supervision of her."  While it is true, as the trial court
  noted, that performance evaluations are not investigative in nature and
  focus on general performance rather than specific instances of misconduct,
  it is nevertheless reasonable to believe that they might shed light on the
  quality and extent of the DOC's supervision of Lanman, on its expectations
  of superintendents generally, and on the overall level of accountability
  within the DOC.  Accordingly, we conclude that the trial court erred in
  failing to examine the records in camera to determine the nexus, if any,
  between the public interest asserted and the records requested.   

       ¶  14.  Therefore, we hold that the matter must be remanded to the
  trial court.  On remand, the court is directed to examine the performance
  evaluations in camera and balance the interests in privacy and disclosure. 
  In so doing, the court must consider not only the relevance, if any, of the
  records to the public interest for which they are sought, but any other
  factors that may affect the balance, including: the significance of the
  public interest asserted; the nature, gravity, and potential consequences
  of the invasion of privacy occasioned by the disclosure; and the
  availability of alternative sources for the requested information.  See,
  e.g., Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 45 (Iowa 1999)
  (recognizing that in balancing privacy interests against public's interest
  in disclosure of personal information in personnel records courts typically
  weigh the public purpose of disclosure, the gravity of the invasion, and
  the availability of alternative sources); Child Prot. Group v. Cline, 350 S.E.2d 541, 543 (W. Va. 1986) (holding that in deciding whether disclosure
  of employee's personal information would constitute unreasonable invasion
  of privacy courts must decide whether disclosure would result in
  "substantial invasion of privacy," the "extent or value of the public
  interest," the availability of the information "from other sources," and
  whether it is possible to provide relief "so as to limit the invasion"). 
  In addition, the State's Vaughn index suggests that substantial
  non-personal information may be contained in the performance evaluations at
  issue, including sections outlining Lanman's major job duties and
  performance expectations.  Therefore, should it determine that the balance
  favors nondisclosure, the court must also give careful consideration to
  redaction of the personal information and disclosure of the remainder. 
  Finally, the court may consider the option of issuing a portion of its
  factual findings under seal if necessary to maintain confidentiality.    

       Reversed and remanded for further proceedings consistent with the
  views expressed herein. 


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                                 Dissenting


       ¶  15.  ALLEN, C.J. (Ret.), Specially Assigned, concurring in part
  and dissenting in part.  I agree that the trial court did not err in
  forgoing an in camera review of the performance evaluation reports
  requested by plaintiff Barry Kade and determining that they fell within the
  exception for "personal documents" found in 1 V.S.A. § 317(c)(7).  Ante,
  ¶ 11.  I disagree, however, with the majority's conclusion that, on
  remand, the trial court must "balance the interests in privacy and
  disclosure" in deciding whether to release the requested information. 
  Ante, ¶ 14.  The plain language of § 317(c)(7) does not call for a
  balancing test, and the Court should not read such a requirement into the
  statute.  Where, as here, the requested documents fall squarely within the
  exception, they should be shielded from disclosure.  I therefore dissent. 

        
       ¶  16.  Section 317(c)(7) provides that "personal documents relating
  to an individual, including information in any files maintained to hire,
  evaluate, promote or discipline any employee of a public agency" are exempt
  from disclosure under the Public Records Act.  In interpreting this
  provision, our goal is to implement the Legislature's intent.  Herrick v.
  Town of Marlboro, 173 Vt. 170, 173, 789 A.2d 915, 917 (2001).  When a
  "statute is unambiguous and the words have plain meaning," we must "accept
  and enforce that plain meaning as the intent of the Legislature."  In re S.
  Burlington-Shelburne Highway Project, 174 Vt. 604, 605, 817 A.2d 49, 51
  (2002) (mem.).   By its terms, § 317(c)(7) does not require a court, or a
  records custodian, to weigh an individual's privacy interest against the
  public's interest in disclosure in deciding whether the exception applies. 

       ¶  17.  I am not persuaded that the Legislature's general statement
  of policy in 1 V.S.A. § 315 can be read to impose a balancing requirement
  on documents that fall within § 317(c)(7).  Cf. Trombley v. Bellows Falls
  Union High Sch. Dist. No. 27, 160 Vt. 101, 110, 624 A.2d 857, 863 (1993)
  (interpreting term "personal documents" in § 317(c)(7) and noting that,
  consistent with the legislative intent expressed in § 315, the Court "must
  also examine the public interest in disclosure").  It is apparent from the
  Public Records Act that when the Legislature intended balancing to occur,
  it included express language to this effect.  See, e.g., 1 V.S.A. §
  317(c)(12) (exempting from disclosure "records concerning formulation of
  policy where such would constitute a clearly unwarranted invasion of
  personal privacy, if disclosed") (emphasis added)).  The fact that the
  Legislature did not include a similar requirement in § 317(c)(7) "is strong
  evidence that a balancing test is inappropriate."  Chairman, Criminal
  Justice Comm'n v. Freedom of Info. Comm'n, 585 A.2d 96, 100 (Conn. 1991). 

       ¶  18.  Section 315 reflects the Legislature's recognition that the
  Public Records Act implicates competing interests in public disclosure and
  personal privacy.  Consistent with these principles, the Legislature
  declared that "certain public records shall be made available to any person
  as hereinafter provided."  1 V.S.A. § 315.  The Legislature then identified
  thirty-five specific exemptions to the public disclosure requirement.  See
  id. § 317(c)(1)-(35).  Presumably, the Legislature balanced the competing
  interests identified in § 315 in deciding what type of records would be
  exempt from disclosure.  See State ex rel. James v. Ohio State Univ., 637 N.E.2d 911, 913-14 (Ohio 1994) (stating that "in enumerating very narrow,
  specific exceptions to the public records statute, the General Assembly has
  already weighed and balanced the competing public policy considerations
  between the public's right to know how its state agencies make decisions
  and the potential harm, inconvenience or burden imposed on the agency by
  disclosure"); see also Chairman, Criminal Justice Comm'n, 585 A.2d  at 100
  (reaching similar conclusion).  This Court should not read an additional
  balancing requirement into § 317(c)(7).  See State v. Jacobs, 144 Vt. 70,
  75, 472 A.2d 1247, 1250 (1984) (recognizing that it is not "a legitimate
  function of this Court to expand a statute by implication, that is, by
  reading into it something which is not there, unless it is necessary in
  order to make it effective").
   
       ¶  19.  Although other courts have employed balancing tests in
  determining whether certain documents should be disclosed, they generally
  have done so because balancing is required by the legislation at issue.  In
  National Archives & Records Administration v. Favish, for example, the
  relevant statute exempted from disclosure information that "could
  reasonably be expected to constitute an unwarranted invasion of personal
  privacy."  541 U.S. 157, 160 (2004) (quotations omitted) (emphasis added). 
  The Supreme Court recognized that the language of the statute required it
  to balance the "competing interests in privacy and disclosure."  Id. at
  172.  Similarly, in Child Protection Group v. Cline, the relevant statute
  shielded personal information "if the public disclosure thereof would
  constitute an unreasonable invasion of privacy, unless the public interest
  by clear and convincing evidence requires disclosure in the particular
  instance."  350 S.E.2d 541, 543 (W. Va. 1986) (quotations omitted).  The
  court concluded that the statutory language required it to "balance the
  public's need to know against the individual's right to privacy" in
  deciding whether records should be released.  Id.  

       ¶  20.  In a case with similar facts, the Connecticut Supreme Court
  held that the plain language of a privacy exemption under its state freedom
  of information act did not require a balancing of a public official's
  privacy rights against the public's right to the information.  Chairman,
  Criminal Justice Comm'n, 585 A.2d  at 100.  The exemption at issue in that
  case shielded personnel files from disclosure when their disclosure "would
  constitute an invasion of personal privacy."  Id. at 97 n.1 (quotation
  omitted).  The court found the statutory language unambiguous, and it
  refused to read a balancing requirement into the statute in the absence of
  a clear statement that one was required.  Id. at 100.  The court explained
  that the structure of the freedom of information act reflected the
  legislature's attempt to balance competing interests, and when the
  legislature intended additional balancing to occur, it had included
  specific statutory language to that effect.  Id.  It thus concluded that
  neither the agency charged with reviewing requests under the act, nor the
  courts, were required to engage in a separate balancing procedure beyond
  the limits of the statute.  Id.  

       ¶  21.  I would reach a similar conclusion here.  I recognize that
  disclosure is clearly favored under the Public Records Act, and that the
  Act should be liberally construed to serve its goals.  1 V.S.A. § 315.  But
  "liberal construction does not allow us to stretch the language beyond
  legislative intent."  Elkins v. Microsoft Corp., 174 Vt. 328, 331, 817 A.2d 9, 13 (2002).  Where, as here, the meaning of a statute is plain, it must
  be enforced according to its terms.  In re Middlebury Coll. Sales & Use
  Tax, 137 Vt. 28, 31, 400 A.2d 965, 967 (1979).  No balancing of interests
  is required under § 317(c)(7), and I would therefore hold that the records
  at issue in this appeal are exempt from disclosure. 



  Dissenting:                          BY THE COURT:

  ______________________________       ______________________________________
  Frederic W. Allen, Chief             Paul L. Reiber, Chief Justice 
  Justice (Ret.), Specially Assigned
                                       ______________________________________
                                       John A. Dooley, Associate Justice
     
                                       ______________________________________
                                       Denise R. Johnson, Associate Justice

                                       ______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  Plaintiff also requested all other documents generated or submitted as
  part of the evaluation process.  The State ultimately responded, and the
  court found, that there were no documents within this category, and
  plaintiff has not challenged this finding. 

FN2.  This provision exempts from disclosure 

    personal documents relating to an individual, including
    information in any files maintained to hire, evaluate, promote or
    discipline any employee of a public agency, information in any
    files relating to personal finances, medical or psychological
    facts concerning any individual or corporation; provided however,
    that all information in personnel files of an individual employee
    of any public agency shall be made available to that individual
    employee or his designated representative.

  1 V.S.A. § 317(c)(7).

FN3.  The term "Vaughn index" derives from Vaughn v. Rosen, 484 F.2d 820
  (D.C. Cir. 1973), which involved a request for documents under the federal
  Freedom of Information Act.  The four documents identified were performance
  evaluation reports for the years 1999, 2000, 2001, and 2004.  There were no
  reports on file for 2002 or 2003.

FN4.  In its motion for summary judgment, the Agency also cited 1 V.S.A. §
  317(c)(25), which exempts from disclosure "passwords, access codes, user
  identifications, security procedures and similar information the disclosure
  of which would threaten the safety of persons or the security of public
  property."  The trial court found that the State's factual showing was
  insufficient to demonstrate which, if any, material in the evaluations
  might pose a security risk and therefore declined to withhold the records
  on this basis.  The parties have not briefed or argued this point, and we
  therefore consider the issue waived.  The trial court also reserved ruling
  on plaintiff's request for all documents generated by the performance
  evaluations, but later found-based on the Agency's supplemental
  affidavits-that the files contained no such documents.  As noted, plaintiff
  has not challenged this finding.

FN5.  In asserting that the PRA precludes a balancing of the interests once
  it is determined that a record falls within the personal-documents
  exception, the dissent implicitly invites the Court to disown its decisions
  in Trombley and Norman that hold to the contrary.  We are not persuaded of
  the necessity or wisdom of such a course.  The dissent argues that the
  explicit balancing requirement within the exception for records "concerning
  formulation of policy," 1 V.S.A. § 317(c)(12) (exempting such records from
  disclosure "where such would constitute a clearly unwarranted invasion of
  personal privacy"), suggests a legislative intent to preclude a balancing
  test where it is not expressly set forth in other exceptions.  We are not
  persuaded, however, that the inclusion of a balancing test within one
  exception necessarily negates the otherwise express, overarching
  legislative principle that the "right to privacy  . . .  ought to be
  protected unless specific information is needed to review the action of a
  governmental officer."  Id. § 315. Furthermore, categorical exemptions of
  the kind advocated by the dissent are not, in our view, consistent with the
  strong statutory presumption in favor of disclosure.

FN6. In response to plaintiff's assertion that the court mischaracterized the
  performance evaluations as personal, the State suggests that they were, in
  fact, categorically exempt from disclosure under the personal-documents
  exception, which refers to "files maintained to hire, evaluate, promote or
  discipline," 1 V.S.A. § 317(c)(7), and that no consideration as to whether
  they contain "personal" information as defined in Trombley and Norman was
  therefore necessary.  Although Trombley concerned employee grievance
  records, our holding was clear that the exception  turns on the specific
  content of the documents requested and not on their label or location in
  employment or disciplinary files.  160 Vt. at 108-09, 624 A.2d  at 862.   In
  Norman, we applied this holding to a variety of documents contained in a
  former state employee's personnel file, including records relating to
  disciplinary actions.  2004 VT 13, ¶ 8.   Accordingly, we discern no
  merit to the State's argument.