Killington, Ltd. v. Lash

• Decision Date: 16 February 1990
• Docket Number: No. 89-185,89-185
• Citation: 153 Vt. 628,572 A.2d 1368
• Court: Vermont Supreme Court
• Parties: KILLINGTON, LTD. v. Jonathan LASH, as Secretary of the Vermont Agency of Natural Resources, et al.

Page 1368

572 A.2d 1368

153 Vt. 628

KILLINGTON, LTD. v. Jonathan LASH, as Secretary of the Vermont Agency of Natural Resources, et al.

No. 89-185.

Supreme Court of Vermont.

Feb. 16, 1990.

Frank P. Urso, Killington, and Allan R. Keyes and Kimberly K. Hayden of Ryan Smith & Carbine, Ltd., Rutland, for plaintiff-appellee.

Jeffrey L. Amestoy, Atty. Gen., Mark J. Di Stefano, Asst. Atty. Gen., and Jeanne Baker, Legal Counsel to Governor, Montpelier, for defendants-appellants.

John H. Fitzhugh of Sheehey Brue Gray & Furlong, Burlington, for amicus curiae Mt. Mansfield Television, Inc.

Before ALLEN, C.J., PECK, J., BARNEY, C.J. (Ret.), SPRINGER, District Judge (Ret.) and CONNARN, District Judge (Ret.), Specially Assigned.

ALLEN, Chief Justice.

The Secretary of the Agency of Natural Resources (the Agency), the Commissioner of the Department of Fish and Wildlife, and the Commissioner of the Department of Forests, Parks and Recreation all appeal a superior court order compelling the production of documents by the Agency. We reverse the judgment and remand the matter to the trial court.

In August, 1987, Killington Ltd. filed three written requests for public records pursuant to the Vermont Access to Public Records statute, 1 V.S.A. ch. 5, subchapter 3, with the Agency of Natural Resources and with the two departments, which are administrative units organized within the Agency. Each request sought essentially all records, papers, or materials of any kind relating to any state regulatory proceeding to which Killington was a party and three general subjects related to its interests: black bear and wildlife habitat, land planning and management relating to lands owned or used by Killington, and ski area and resort development policy that might affect Killington. In addition, all three requests contained the following paragraph:

(c) all correspondence, memoranda or other forms of communication relating to Killington Ltd. or its predecessor, Sherburne Corporation, between the Agency, any group or organization, any other agency, department, board, committee, commission or branch of state or federal government or any political subdivision thereof.

A large volume of requested materials was produced, but defendant Lash, Secretary of the Agency of Natural Resources, on behalf of the Agency and the two departments, advised Killington that he regarded two other classes of materials to be exempt. Lash's letter stated:

Specifically, various letters, memoranda, and other writings are exempt from inspection because they are covered by the attorney-client privilege, constitute protected trial preparation materials, are exempt under principles of executive privilege, or are relevant to litigation to which the Agency is presently a party of record.

....

In addition, communications directly to or from the Governor's office will not be made available. They are protected from disclosure by executive privilege.

Plaintiff thereafter filed suit against defendants in Washington Superior Court seeking access to the materials withheld. Defendants moved for partial summary judgment with respect to certain weekly memoranda exchanged between Governor Kunin's office and defendants. Defendants relied in principal part on 1 V.S.A. § 317(b)(4), which excepts from public access all "records which, if made public pursuant to this subchapter, would cause the custodian to violate any statutory or common law privilege." Defendants contended that executive privilege was a common-law privilege in Vermont and fell within the excepting language of § 317(b)(4). In support of their theory defendants submitted affidavits stating that the memoranda in question were "prepared for the purpose of policy formulation and decision-making regarding Agency matters."

Plaintiff then filed its own motion for partial summary judgment ordering production of all Agency records which defendants withheld under the asserted privilege for an attorney's work product, contending that the doctrine is not a valid ground for withholding documents under the Access to Public Records statute. ¹

The trial court concluded that there is no common-law or statutory executive privilege in Vermont, that each branch of

government must interpret the law, but that the "Legislature delegated to the Judicial Branch the responsibility to make this determination," i.e., to decide whether the claim of executive privilege should stand. The court ordered an in camera review of the documents so that "the need for confidentiality can be weighed against the public's right to access to public records." ² The trial court also granted plaintiff's motion, concluding that " 'work product' exemptions from discovery under procedural rules do not rise to the status of common law or statutory privilege" and that documents withheld under that asserted exemption had to be furnished. The present appeal followed.

I. Executive Privilege.

A. Threshold Issues.

The question of whether Vermont common law recognizes the assertion of executive privilege ³ leads down many paths, including historical, constitutional, and practical. ⁴ The heart of the question is the issue of separation of powers, which is a founding principle of both the Vermont and the federal systems of government. ⁵ A major threshold question is which branch of government may act as arbiter when executive privilege is asserted by one branch to bar the claim of another branch or the public to information. It has been argued that the sanctity of the executive branch would be violated by subjecting the question of executive privilege to another branch, including the judicial branch. As Justice Sutherland said in Humphrey's Executor v. United States, 295 U.S. 602, 629-30, 55 S.Ct. 869, 874-75, 79 L.Ed. 1611 (1935):

The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question.... The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there.

See also Nixon v. Sirica, 487 F.2d 700, 769 (D.C.Cir.1973) (Wilkey, J., dissenting).

While recognizing this principle, neither our Vermont nor the federal governmental systems has allowed each branch to reside in its own castle, with inherently absolute prerogatives and defenses against the will of the other branches. "Interaction, not independence, has historically been characteristic of the operation of the three branches of our government." Cox, Executive Privilege, 122 U.Pa.L.Rev. 1383, 1388 (1974). The role of the judicial branch in breaking the deadlock among branches where privilege is asserted by one against the other was set in United States v. Burr, 25 F.Cas. 30 (C.C.D.Va.1807) (No. 14,692d), in which Chief Justice Marshall, while sitting on the circuit court, ruled that a subpoena may be directed to the President. See also Westinghouse Electric Corp. v. City of Burlington, 351 F.2d 762, 767-68 (D.C.Cir.1965); and cf. Monti v. State, 151 Vt. 609, 611-14, 563 A.2d 629, 630-32 (1989) (propriety of oral deposition of high government officials).

If the judicial branch may exercise the power to determine when legal process lies against a chief executive, then separation of powers principles cannot logically be asserted to justify an absolute privilege by a president or governor to withhold information that would otherwise be subject to legal process. See Note, Discovery of Government Documents and the Official Information Privilege, 76 Colum.L.Rev. 142, 165-68 (1976). Additionally, the nearly universal conclusion of state and federal courts is that judges are the final arbiters of disputes among the branches where one asserts a privilege against one or both of the other branches. See, e.g., United States v. Nixon, 418 U.S. 683, 703-05, 94 S.Ct. 3090, 3105-06, 41 L.Ed.2d 1039 (1974); United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 531-32, 97 L.Ed. 727 (1953); Nixon v. Sirica, 487 F.2d at 713 (applicability of executive privilege is ultimately for courts, not the executive, to decide); Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 788, 794 (D.C.Cir.1971) ("no executive official ... can be given absolute authority to determine what documents in his possession may be considered by the court"); Hamilton v. Verdow, 287 Md. 544, 562, 414 A.2d 914, 924 (1980).

By strong precedent and necessity, we must act as the fair arbiter among the branches of government on the issue of executive privilege. In accepting this task, we set as our goal criteria that are neutral and processes that assure the greatest respect for the needs and interests of each branch.

B. Recognition of the Privilege.

Federal and state courts have been emphatic and nearly unanimous in supporting the existence of some species of executive privilege for presidents and governors who seek to maintain the privacy of documents relating to the formulation of policy. Even in holding that the President was amenable to service of process, Chief Justice Marshall acknowledged the weight of presidential office and the necessary exercise of a reasonable privilege in the pursuit of that office:

That the president of the United States may be subpoenaed, and examined as a witness, and required to produce any paper in his possession, is not controverted. I cannot, however, on this point, go the whole length for which counsel have contended. The president, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. I do not think precisely with the gentlemen on either side. I can readily conceive that the president might receive a letter which it would be improper to exhibit in...