Herald Ass'n, Inc. v. Dean

• Decision Date: 01 November 2002
• Docket Number: No. 02-190.,02-190.
• Citation: 816 A.2d 469
• Court: Vermont Supreme Court
• Parties: HERALD ASSOCIATION, INC., Times Argus Association, Inc. and DaCapo Publishing, Inc. v. Governor Howard DEAN, M.D. and State of Vermont.

816 A.2d 469

HERALD ASSOCIATION, INC., Times Argus Association, Inc. and DaCapo Publishing, Inc. v. Governor Howard DEAN, M.D. and State of Vermont.

No. 02-190.

Supreme Court of Vermont.

November 1, 2002.

Robert B. Hemley and Christina Reiss of Gravel and Shea, Burlington, for Plaintiffs-Appellees.

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

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, J.

Plaintiffs Herald Association, Inc., Times Argus Association, Inc., and DaCapo Publishing, Inc., all publishers of newspapers circulated throughout Vermont, filed a request under Vermont's Access to Public Records Act, 1 V.S.A. §§ 315-320, for Governor Howard Dean's daily schedule from September 2001 to the present, with continual updates. Plaintiffs sought the schedule as a means to determine how much time Governor Dean spends on nongubernatorial 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 (FOIA) relative to the Executive Office of the President. In Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (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 156,100 S.Ct. 960. Key to the Supreme Court's holding in that case was explicit legislative history explaining that "Executive Office of the President" did not encompass the Office of the President or staff whose sole purpose was to assist and advise the President. Id. Defendants have not demonstrated that our Legislature intended a similar exclusion under Vermont's Access to Public Records Act, and we are not persuaded that we should create one absent such a showing. Where the Legislature's intent can be ascertained from the plain meaning of the statute, we interpret the statute according to the words the Legislature used. Brennan v. Town of Colchester, 169 Vt. 175, 177, 730 A.2d 601, 603 (1999). Our interpretation here is faithful to that canon.

Citing our decision in Doe v. Salmon, 135 Vt. 443, 378 A.2d 512 (1977), defendants also argue that a "public record" does not include the Governor's schedule because it is not a record of the Governor's official acts. Nothing in that case, nor in the language of the Access to Public Records Act, intimates that records of official acts alone are subject to public inspection. We observed in Doe v....