Herald Ass'n, Inc. v. Dean

816 A.2d 469, 174 Vt. 350, 31 Media L. Rep. (BNA) 2417, 2002 Vt. LEXIS 318

• Court: Supreme Court of Vermont
• Decided: November 1, 2002
• Docket: 02-190
• Status: Published

Opinions

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 nongubematorial 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 (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 (FOJA) relativé 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 ease, 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 & Environment v. Office of Governor, 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.

*

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 ofhis 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. Murnane, 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 byway 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, 779 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 andremanded to the trial court for further proceedings consistent with the views expressed herein.

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.