Judicial Watch, Inc. v. State

• Decision Date: 04 November 2005
• Docket Number: No. 04-209.,04-209.
• Citation: 2005 VT 108,892 A.2d 191
• Court: Vermont Supreme Court
• Parties: JUDICIAL WATCH, INC. v. STATE of Vermont, Deborah L. Markowitz, Secretary of State, Gregory Sanford, State Archivist and Howard Dean, M.D., Former Governor.

892 A.2d 191

2005 VT 108

JUDICIAL WATCH, INC. v. STATE of Vermont, Deborah L. Markowitz, Secretary of State, Gregory Sanford, State Archivist and Howard Dean, M.D., Former Governor.

No. 04-209.

Supreme Court of Vermont.

November 4, 2005.

Motion for Reargument Denied December 21, 2005.

COPYRIGHT MATERIAL OMITTED

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.

SKOGLUND, J.

¶ 1. 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),¹ 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)).² 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, 177 Vt. 596, 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"...