Wesco, Inc. v. Sorrell, No. 2003-334

• Docket Nº: No. 2003-334
• Citation: 865 A.2d 350
• Case Date: October 08, 2004
• Court: United States State Supreme Court of Vermont

865 A.2d 350

Wesco, Inc. and Odessa Corporation
v.
William Sorrell, as Attorney General of the State of Vermont and the Office of the Attorney General
Wesco, Inc. and Odessa Corporation
v.
Scott Johnstone, as Secretary of the Vermont Agency of Natural Resources and the Vermont Agency of Natural Resources

Nos. 2003-334, 2003-337, April Term, 2004

Supreme Court of Vermont

Filed October 8, 2004

Megan J. Shafritz and Robert F. O'Neill of Gravel and Shea, Burlington, for Plaintiffs-Appellants.

William H. Sorrell, Attorney General, and Mark J. Di Stefano and Michael O. Duane, Assistant Attorneys General, Montpelier, for Defendants-Appellees.

PRESENT: Dooley, Johnson, Skoglund and Reiber, JJ., and Allen, C.J. (Ret.), Specially Assigned.

SKOGLUND, J.

¶ 1. Appellants Wesco Incorporated and Odessa Corporation appeal from a Chittenden County Superior Court order granting summary judgment in favor of the Attorney General's Office (AGO) and the Agency of Natural Resources (ANR). Appellants requested production of documents under Vermont's Access to Public Records Act; these were the same documents they sought and were denied during discovery in cases pending in district and environmental courts. The superior court denied appellants' public records requests, finding that the documents were relevant to ongoing litigation and thus exempt from production under 1 V.S.A. § 317(c)(14). We agree and affirm.

¶ 2. Appellants are owners and operators of numerous gas stations in Vermont. They are also defendants in two pending state court actions relating to their facilities. The first action is a criminal case filed by the AGO in district court in which appellants are charged with the reckless release of gasoline at their Winooski facility, Winooski Exxon, in violation of criminal environmental statutes. The second case is a civil case filed by ANR in environmental court alleging that appellants violated state air quality and hazardous materials standards at other facilities not including the Winooski Exxon.

District Court Case

¶ 3. In the criminal case, appellants sought discovery of documents relating to any investigations of appellants' facilities, not just the Winooski Exxon, including specifically, production of documents relating to any state investigation of appellants' Hilltop gas station. Appellants also sought a listing of all documents the AGO did not produce based on a claim of privilege (hereinafter referred to as privilege log). The AGO refused to produce the documents requested and appellants filed a motion to compel. The AGO opposed the motion, arguing that documents relating to the Winooski Exxon had already been produced, and that appellants were not entitled to discovery of documents relating to the Hilltop station or any other of their facilities because they failed to make a threshold showing of selective prosecution sufficient to justify disclosure. The district court held a hearing on July 9, 2002 on the motion to compel in which it addressed some of the production questions and suggested the parties resolve as many of the remaining issues as possible on their own. With respect to appellants' request for production of documents relating to the Hilltop station, the court suggested that appellants file a public records request.

¶ 4. In July and August 2002, after the district court hearing, appellants sent a series of public records requests to both the AGO and ANR pursuant to Vermont's Access to Public Records Act. See 1 V.S.A. § 315. In the requests, appellants sought many of the same documents they requested in discovery in the district court action, including various documents relating to both the Hilltop and Winooski stations. The AGO and ANR provided appellants with a privilege log and permitted appellants to inspect some of the files they requested. But, the AGO and ANR denied access to some documents they considered exempt from disclosure on grounds of privilege, work-product, or relevance to ongoing litigation. See 1 V.S.A. § 317(c)(4), (5), (14). Appellants appealed their requests to the Attorney General and the Secretary of ANR according to 1 V.S.A. § 318(a)(2), (3); these appeals were also denied.

¶ 5. Then, in October 2002, appellants filed a second motion to compel in district court, renewing their request for production of the same documents listed in their first motion to compel and arguing that the privilege log provided was inadequate. The AGO again opposed the motion, insisting that documents relevant to other state investigations were not discoverable absent a threshold showing of selective prosecution. With respect to the privilege log, the AGO requested that the district court conduct an in camera review of the documents to verify that they were indeed privileged. In an April 2003 order, the district court denied appellants' motions to compel and limited discovery of documents to only investigations of the Winooski Exxon. The court reasoned that, not only had appellants not met their burden on their claim of selective prosecution, but they requested documents regarding investigations of their own facilities which did not seem to support their selective enforcement theory. The court agreed to review the documents withheld for privilege in camera, and, in August 2003, ruled that these documents were indeed exempt from disclosure as work-product.

Environmental Court Case

¶ 6. In the environmental court case, appellants, along with other defendants in the action, requested a hearing before the court in connection with four administrative orders issued by ANR alleging violations of Vermont air quality and hazardous materials laws. The Winooski Exxon was not subject to these orders. In August 2002, appellants sought discovery of documents relating to any investigations, enforcement actions, or lawsuits filed by ANR against anyone in the last twenty years. ANR objected to the request and appellants moved to compel based on a theory of selective prosecution. ANR opposed the motion to compel on grounds that appellants had not made the requisite showing of selective enforcement. Also in August 2002, while the motion to compel was pending, appellants filed a public records request seeking a subset of the documents requested through discovery, including lists of all companies against whom penalties were assessed by the ANR in the last ten years. ANR denied the requests, arguing that the documents were exempt from disclosure because they were privileged, work-product, and relevant to ongoing litigation. Appellants appealed this decision to the Secretary of ANR who upheld the denial.

¶ 7. In July 2003, the environmental court issued an order granting in part and denying in part appellants' motion to compel. The court ordered ANR to produce a small group of the documents appellants requested on grounds that they were entitled to limited discovery on cases brought against other members of the regulated community for the sole purpose of showing that other entities were similarly situated to support their theory of selective prosecution.

¶ 8. Meanwhile, prior to receiving final rulings on their pending motions to compel in both the district and environmental courts, appellants filed two separate complaints in Chittenden Superior Court contesting the AGO and ANR's refusal to produce the documents sought in their public records requests. See 1 V.S.A. § 319(a). The first complaint was filed against Attorney General William Sorrell and the AGO, and the other against Secretary Scott Johnstone and ANR. The AGO and ANR filed a summary judgment motion seeking dismissal of the consolidated cases on grounds that the documents sought were exempt from disclosure because they were privileged, work-product, related to "the detection and investigation of crime," and "relevant to litigation" under 1 V.S.A. § 317(c)(4), (5), (14). Appellants filed a cross-motion for summary judgment alleging that, based on the district court ruling that the documents were not relevant, the documents requested could not be exempt under § 317(c)(14) as a matter of law. In...