As a matter of law, and regardless of Governor Dean’s motivations or the various “public interest” considerations Defendants assert are at issue, Defendants are incorrect. Thus, the lower court properly held that the MOU does not establish “executive privilege.” Its grant of judgment, pursuant to V.R.C.P. 12(c), in favor of Judicial Watch was correct, and should be affirmed.

Facts

By letter dated August 25, 2003, to Defendant Sanford, Judicial Watch requested access to the gubernatorial public records of former Governor and presidential candidate Howard Dean in accordance with the Public Records Act. By letter dated August 26, 2003, Sanford informed Judicial Watch that it could inspect certain limited records, but that other gubernatorial records were not available for inspection pursuant to a January 2003 Memorandum of Understanding (“MOU”) signed by Governor Dean, Defendant Markowitz and Attorney General William Sorrell. According to the MOU, “any portion of correspondence determined by Governor Dean to be encompassed by executive privilege” will be sealed for ten years.

By letter dated November 19, 2003, Judicial Watch appealed the denial of that request to Defendant Markowitz; by letter dated November 26, 2003, the appeal was rejected.

Procedural History

On December 3, 2003, Judicial Watch filed its Complaint in this action, seeking full and immediate access to Governor Dean’s public records and requesting expedited treatment in accordance with 1 V.S.A. § 319(b). On December 23, 2003, Defendants served their Answer. On January 12, 2004, Judicial Watch served its Reply.

On January 22, 2004, Judicial Watch moved for judgment on the pleadings pursuant to V.R.C.P. 12(c), on the grounds that the requested documents are public records which must be disclosed under the Public Records Act. Specifically, Judicial Watch argued that the State has neither made nor attempted to make the required prima facie showing for executive privilege, and that the “MOU” is a legal fiction which cannot serve as an end run around that requirement. The lower court agreed, and granted Judicial Watch’s motion, ruling “that the MOU itself does not establish that any requested records necessarily are exempt from disclosure under the Act.”

However, rather than direct the State to produce the documents immediately, the court gave the State yet another opportunity to meet its burden by preparing an index of the documents withheld from review. The State still has not done so; instead, it filed additional motions, and otherwise has sought to delay compliance, including seeking this interlocutory appeal. Although the lower court stated that it “does not suffer dramatic uncertainty with regard to the correctness of its order on the MOU issue” (PC-0010), on May 10, 2004, it granted the State’s motion for interlocutory review and certified three issues for appeal.

SUMMARY OF THE ARGUMENT

The lower court’s decision – “that the MOU itself does not establish that any requested records are exempt from disclosure under the Act” (PC-0003) – should be affirmed.

Simply put, the 150 boxes of documents at issue are public records, and therefore must be revealed to the public under the Public Records Act (requiring disclosure despite potential “embarrassment”) and this Court’s precedent (placing the burden of establishing a potential prima facie case for executive privilege on the Governor).

The MOU does not alter this result by announcing “executive privilege,” for a contract cannot trump the Public Records Act, and the executive branch of government cannot – despite its professed balancing of “public interests” – unilaterally rewrite legislation or case law. It is not the province of the executive branch to legislate public policy and decide what it thinks is a reasonable amount of time for secrecy in government; under the separation of powers doctrine, the job of determining public policy and enacting laws rests with the legislature, which enacted the Public Records Act. Nor can the executive branch ignore this Court’s interpretation of the laws that, with respect to the Public Records Act, requires it to meet the burden of establishing a claim of privilege by providing a particularized affidavit.

Defendants’ argument that the Archive Statute gives them this authority fails in law and logic, for that statute simply directs the archivist to preserve the “terms and conditions of law restricting the[] use” of documents placed in his custody; it does not, by that language preserving the status quo, authorize the Secretary of State or anyone else to negotiate a contract announcing those “conditions of law.” Indeed, if Defendants were right, then they could unilaterally decide to seal the entire archive, an absurd result which must be rejected (and which was rejected by the lower court). Defendants’ plea for deference on this argument also must be rejected, for the MOU is not the result of legitimate rulemaking under the Vermont Administrative Procedure Act (nor do Defendants even argue that it is).

Finally, Defendants’ attempt to collect $187,650 should be rejected, because the issue is not before this Court and, in any event, the lower court correctly ruled that the cost-shifting component of the Public Records Act does not pay for the cost of resisting compliance with disclosure obligations. Similarly, Defendants’ recent attempt to change the facts (i.e., the number of sealed boxes at issue) is not properly before this Court and, in any event, should not be countenanced.

ARGUMENT

I. THE MOU DOES NOT TRUMP THE PUBLIC RECORDS ACT AND VERMONT SUPREME COURT PRECEDENT.

The narrow legal issue before this Court is whether an agreement between a retiring Governor and other members of the executive branch to seal for ten years almost half of the Governor’s official correspondence trumps the Public Records Act and Vermont Supreme Court precedent. As the lower court correctly held, the answer is no.

As explained below, the 150 boxes of documents at issue are public records, so they are subject to disclosure. Defendants rely on “executive privilege” as an exception to that disclosure requirement, but they refuse to make the required showing. Instead, they maintain that their MOU carries the day, asserting virtually without citation to legal authority that the Secretary of State is given a “broad grant of authority” under the Archive Statute and that such authority includes “balancing public interests” by entering into side agreements with the Governor. Defendants are incorrect.

The Archive Statute gives no broad grant of authority, but rather a narrow assignment of duties for the state archivist to follow in connection with maintaining documents. The only relevant “broad grant of authority” articulated by the state legislature appears in the Public Records Act, and it is a pronouncement of the public’s right to know what its government is up to, regardless of whatever “embarrassment” it might cause. 1 V.S.A. § 315. The MOU cannot serve as an end run around the Public Records Act and Vermont Supreme Court case law, and there is nothing in the Archive Statute or elsewhere that says otherwise.

A. Because They Are Public Records, The 150 Boxes Of Gubernatorial Documents Are Subject To Disclosure Under The Vermont Access To Public Records Act.

Vermont’s Access to Public Records Act declares: “Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment.” 1 V.S.A. § 315. The Act permits “[a]ny person” to “inspect or copy any public record or document.” Id. § 316.

The definition of “public records” is “sweeping,” see Caledonian-Record Publ’g Co. v. Walton, 154 Vt. 15, 19 (1990), and the Public Records Act is to be “liberally construed in favor of public access to documents falling within its scope.” Herald Ass’n, Inc. v. Dean, 174 Vt. 350, 355 (Vt. 2002); 1 V.S.A. § 315 (“the provisions of this subchapter shall be liberally construed”). “Public records” include “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.” 1 V.S.A. § 317(b). Because an “agency” is defined to include any “branch, instrumentality or authority of the state,” id. § 317(a), and because it is “hardly disputable” that the Governor’s office fits that definition, the Vermont Supreme Court has held that “any paper or document ‘produced or acquired’ during the course of the Governor’s business is a public record subject to disclosure under the [Public Records] Act, unless some exception to the Act applies.” Dean, 174 Vt. At 354.

Here, the 150 boxes of documents at issue are “the official correspondence of the Governor.” PC-0051 (Answer, Exhibit 1). Accordingly, these documents are clearly public records subject to disclosure under the Public Records Act. Judicial Watch has requested access to these records and has “followed the procedure set forth in the Public Records Act.” PC-0050 (Answer), ¶ 20. Thus, unless there is an applicable exception, the 150 boxes of gubernatorial documents must be disclosed under the Public Records Act.

B. Governor Dean Has Not Met His Burden Of Establishing The “Executive Privilege” Exception To Disclosure.

Defendants assert “executive privilege” as the exception to disclosure under the Public Records Act. Without question, Vermont case law has held that the assertion of common law privileges, like the “executive privilege,” may sometimes prevent the disclosure of public records under 1 V.S.A. § 317(c)(4). At its core, this privilege (which is not absolute) is designed to protect a Governor’s decision-making or deliberative process, in order to benefit the public, not the Governor or his political ambitions.

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. The privilege, which is not absolute, furthers the public interest by allowing the Governor to obtain open advice on matters of public importance.

Dean, 174 Vt. At 355-56 (citation omitted). Even more important, in order for the privilege to attach in the first place, a prima facie case must be made by the Governor upon receiving a request for any documents potentially protected.

In New England Coalition [164 Vt. 337, 344 (1995)], 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. The claim must be supported by an affidavit based on actual personal consideration by the responsible official. 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.

Dean, 174 Vt. At 356 (internal quotation marks and citations omitted).

Here, although Judicial Watch made a “request for documents,” there has been no “prima facie” showing in response “specifically identify[ing]” the documents, nor has any affidavit “based on actual personal consideration” ever been provided. Further, Governor Dean failed to comply even with the simple statutory requirement of 3 V.S.A. § 4(a) to provide a complete “itemized list” of his official correspondence (though he did provide a list of those documents he is willing to reveal). Accordingly, any reliance on “executive privilege” must be rejected, and the documents should be disclosed.

C. The MOU Is Legally Void And Provides No Defense Against Disclosure.

Defendants attempt to rely on their own “Memorandum of Understanding” as an end run around Vermont’s statutes and well-settled case law. This attempt must be rejected for a number of reasons. First, Vermont law follows the overwhelming body of case law across the country that does not permit a contractual provision to override a public records act. Second, the MOU represents a dangerous violation of the separation of powers, since it is nothing short of a rewriting of the Public Records Act and Vermont case law. Finally, Defendants’ plea for “deference” to their illegitimate and illogical reading of the Archive Statute (as somehow providing authority for their MOU) is unavailing, and was correctly rejected by the lower court.

1. A Contract Cannot Override The Public Records Act.

It is well settled that, as a matter of public policy and common law, a contract cannot override a public records act. See Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 107-08 (1993) (“We agree with plaintiff that the contract cannot override the provisions of the Public Records Act.”) (citing Mills v. Doyle, 407 So. 2d 348, 350 (Fla. Dist. Ct. App. 1981) (allowing teachers’ collective bargaining agreement to control whether grievance records are public “would sound the death knell of the [Public Records] Act.”)); see also State of Hawai’i Org. of Police Officers (SHOPO) v. Soc’y of Prof’l Journalists, Univ. of Hawai’i Chapter, 927 P.2d 386, 413-14 (Haw. 1996) (“With respect to public records statutes, the virtually unanimous weight of authority holds that an agreement of confidentiality cannot take precedence over a statute mandating disclosure.”) (citing e.g., Trombley, 160 Vt. at 107-08; Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d 1191, 1193 (Alaska 1989) (“a public agency may not circumvent the statutory disclosure requirements by agreeing to keep the terms of a settlement agreement confidential. Under Alaska law, a confidentiality provision such as the one in the case at bar is unenforceable because it violates the public records disclosure statutes.”); Register Div. of Freedom Newspapers, Inc. v. County of Orange, 205 Cal. Rptr. 92, 102 (Cal. Ct. App. 1984) (“We conclude that assurances of confidentiality . . . are inadequate to transform what was a public record into a private one.”); Lieberman v. State Bd. of Labor Relations, 579 A.2d 505, 514 (Conn. 1990) (public access statute made agreement to destroy records “an illegal subject of bargaining” and thus “null and void”); Anonymous v. Bd. of Educ. for the Mexico Cent. Sch. Dist., 616 N.Y.S.2d 867, 870 (N.Y. Sup. Ct. 1994) (“an agreement to keep secret that to which the public has a right of access under Article 6 of the Public Officers Law would be unenforceable as against public policy.”); Toledo Police Patrolmen’s Ass’n, Local 10 v. City of Toledo, 641 N.E.2d 799, 802 (Ohio Ct. App. 1994) (“[T]he law is supreme, and no contract between individuals can make it lawful to do that which the statute positively commands shall not be done.”)).

Accordingly, it is overwhelmingly clear that the MOU is an unenforceable contract as a matter of law. It should be summarily rejected by this Court on that basis alone.

2. The MOU Violates The Separation Of Powers.

Our government is based on a separation of powers in order to prevent tyranny. See Vt. Const., Ch. II, § 5 (“The Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others”); In re D.L., 164 Vt. 223, 229 (1995) (“The division of power serves to create a structure resistant to forces of tyranny.”). “Briefly stated, the legislative power is the power that formulates and enacts the laws; the executive power enforces them; and the judicial power interprets and applies them.” In re D.L., 164 Vt. at 229. The negotiation, execution and attempted enforcement of their “Memorandum of Understanding” constitutes an abuse of the executive office and a violation of the separation of powers.

The MOU represents a violation of the separation of powers because it encroaches on the powers and province of the legislature. See generally Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 587 (1952) (“The President’s power, if any, to [take the action] must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to [take the action] as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. . . . The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”). On its face, the MOU has the look and feel of a statute, for it explains the “reasons” for the “policies” it embraces and proclaims “rules of conduct to be followed.” See id. at 588.^{^[3]} And on this appeal, Defendants maintain their position that they “have balanced the public’s interests,” and argue that this is why their proclamations should carry the day.

However, the opposite is true. Indeed, it is precisely because they purport to “balance” the “multi-faceted public interest considerations” – which they advance as their lead and essentially only argument – that makes what Defendants have done illegitimate. It is the role of the legislative branch, not the executive, to set public policy through lawmaking. In re D.L., 164 Vt. at 229 (the legislature “formulates and enacts the laws”); Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 524 (1959) (“Policy decisions are for the state legislature”); 16 C.J.S. Constitutional Law § 217 (2004) (“Public policy is for the determination of the legislative, not the executive, branch of government”).^{^[4]}

In addition, by signing and relying on his “Memorandum of Understanding,” Governor Dean ignores judicial precedent by failing to follow this Court’s ruling that requires the making of a prima facie case for executive privilege; he thereby exceeded his powers and encroached on those of the judiciary. Defendants attempt to justify their non-compliance with this requirement by arguing, based solely on an erroneous citation to New England Coalition, that executive privilege is ordinarily “unlimited” in duration and announcing that, if the Secretary of State had declined to help the public with agreements like the MOU, then we would never get to see these public documents.^{^[5]} The citation is erroneous because, in New England Coalition, the claim of executive privilege was upheld because, unlike here, the defendants actually met their burden of establishing executive privilege by submitting an affidavit that made out a prima facie case. It was not based on some made-up claim of “broad delegation” or “discretion” under the Archives Statute. Rather, it was a case in which the defendants met their burden of establishing privilege via the affidavit of “Volz, as a high-ranking official who was intimately involved with the preparation of the [documents]...based on Volz’s personal knowledge of the documents, and [which] describe[d] those documents with particularity.” 164 Vt. at 345.

Further, despite Defendants’ suggestion to the contrary, the timing issue argued and addressed in New England Coalition was not post-term Governor papers, but post-decision papers. In that case, the plaintiffs had argued that, following FOIA, the only papers protected by executive privilege are those created before a Governor’s decision on an issue has been made. The Vermont Supreme Court rejected such a bright-line rule because Governors’ decisions are not as clearly delineated (or regulated) as agencies’, and because there, the incumbent Governor (Dean, who took over for Snelling after his death) actually made a case for executive privilege. 164 Vt. At 344-45. Here, Governor Douglas is not making a case for executive privilege or arguing that these boxes of documents in the archive are somehow part of his deliberative process. Since there is no authority holding or even suggesting that the required showing for executive privilege to attach can be made by a post-term Governor, and as Defendants themselves conceded, “only the current officeholder has authority to defend an assertion of executive privilege,” Appellants’ Brief at 14, the assertion of executive privilege by Governor Dean cannot properly be made at this time. It is simply too late.

This result is not, as we anticipate Defendants will argue, too harsh; rather, it makes sense that the privilege would not attach to governmental deliberations post-term. “The privilege, which is not absolute, furthers the public interest by allowing the Governor to obtain open advice on matters of public importance.” Dean, 816 A.2d at 474-75. Once the Governor is out of office, however, the analysis changes, for any potential political “down side” to meeting with a controversial group has vanished. See, e.g., Times Mirror Co. v. Superior Court, 813 P.2d 240, 251 (Cal. 1991) (“If the law required disclosure of a private meeting between the Governor and a politically unpopular or controversial group, that meeting might never occur.”). Here, Governor Dean’s meetings with a “controversial group” obviously cannot hinder his effectiveness as the chief executive of Vermont, since he no longer holds that office. See also PC-0049 (Answer), ¶ 16; PC-0039 (Complaint, Exhibit 5) (“Killington v. Lash [establishing executive privilege in Vermont] address[es] sitting Governors”) (emphasis added). Accordingly, Governor Dean not only flouted the requirement set forth by this Court that he make a prima facie showing of any documents he considers protected by executive privilege, but by failing to make that showing while still in office (and by Governor Douglas’s failure to assert it), he should not be permitted to make the showing at all. As a result, the 150 boxes of documents should be released to the public immediately.^{^[6]}

Defendant Sanford himself correctly cautioned in his August 21, 2002 memorandum to the Governor’s Legal Counsel, David Rocchio, that “to begin building post-gubernatorial controls into memoranda of understanding raises legal issues and is bad precedent.” See PC-0049 (Answer), ¶ 16; PC-0039 (Exhibit 5 to Complaint).^{^[7]} The Governor is simply not the legislature, and thus he cannot enact statutes. Nor is he the judiciary, so he cannot declare statutes to be invalid or make new common law (or ignore the law as announced by this Court). In fact, Governor Dean has ignored the requirements of making a prima facie showing, and now it is simply too late for him to make such a showing. The Defendants’ acts have no basis in law, and violate the fundamental principle of a separation of powers by usurping the powers of the other branches of government.

3. The Archive Statute Does Not Authorize The MOU.

Defendants argue that entering into the MOU was authorized by the Archive Statute and should be honored by this Court. As the lower court held, Defendants are incorrect. Nowhere in that statute is there any such authority. Nor is Defendants’ illegitimate and illogical argument to the contrary entitled to any “deference,” for Defendants did not engage in any rulemaking under the Vermont Administrative Procedure Act that might warrant such deference.

The Archive Statute creates “within the office of the Secretary of State the division of Vermont state archives” and provides that “[t]he secretary shall have legal custody of the state’s archival records.” 3 V.S.A. § 117(b). The statute also provides:

In fulfilling the duties of the state archives program, the state archivist shall...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.

3 V.S.A. § 117(g)(9). The meaning of this statute is plain: the archivist shall make the archives available to the public, but the archivist shall honor whatever legal restrictions have been imposed on particular records when they are received by the Secretary of State for archiving.

a. Defendants’ Absurd Statutory Interpretation Must Be Rejected.

Based solely on the proviso in 3 V.S.A. § 117(g)(9) acknowledging the possibility of “special terms and conditions of law,” Defendants argue that the very person entrusted with maintaining custody of the archival records and the very person who is required to permit public inspection can, at the same time, unilaterally exercise her “discretion” and write “law” by reclassifying public documents as secret for any period of time she desires, including forever. Defendants essentially argue that their only obligation of public disclosure as archivists is to reveal the documents that they decide to reveal, and that their decision in that regard is “law” under 3 V.S.A. § 117(g)(9). In other words, Defendants believe that “special terms and conditions of law” is whatever they say it is. This interpretation of the Archive Statute is absurd, and must be rejected for that reason. See, e.g., Springfield Terminal Ry. v. Agency of Transp., 174 Vt. 341, 348 (2002) (“This Court will always avoid a statutory construction which leads to absurd or irrational results”); In re G.T., 170 Vt. 507, 517 (2000) (“statutes should be construed so as not to reach absurd results”); Braun v. Bd. of Dental Examiners, 167 Vt. 110, 117 (1997) (“We presume that the Legislature does not intend an interpretation that would lead to absurd or irrational consequences”).^{^[8]} Indeed, if Defendants were correct, then the Secretary of State could simply conceal the entire state archive.

The only sensible interpretation of the “special terms and conditions of law” proviso is that it simply makes clear that the first proviso – “permit the public to inspect” – does not void an otherwise valid, legal restriction on use of a document simply by virtue of its being placed in the archive. That is, the proviso tells the archivist to preserve the legal status quo of a record. It does not grant authority to the Secretary of State (or anyone else) to then and there create, draft and enforce “special terms or conditions of law” of her choosing. The Archive State is neither a condition of law restricting the use of the archived documents, nor does it confer the right to create a condition of law. It merely acknowledges that such conditions may exist.

b. The Secretary Of State Has No “Broad Discretion” To Legislate.

The fact is, the Archive Statute – which predates the Public Records Act – does not give any “broad discretion” or “broad authority” to the Secretary of State to rewrite the Public Records act or overrule Vermont Supreme Court precedent. It is thus no surprise that Defendants cite to no controlling legal authority in support of what they have done here. Instead, Defendants cite to Vt. Const. Ch. II. § 43, which provides only that the Secretary of State is an elected official, and to Office of State’s Attorney v. Office of the Attorney General, 138 Vt. 10, 13 (1979), a wholly inapposite case in which the state’s attorney sought to enjoin the attorney general from prosecuting a case. In upholding the denial of the injunction and finding that both executive officers had the authority to prosecute a criminal case, this Court noted that, at common law here as in most jurisdictions, a state’s attorney exercises discretion in deciding whether to proceed. That case was an enforcement case; that was not a case in which the executive branch attempted to legislate by side agreement. Nor does it stand for the proposition that the executive branch enjoys discretion in any other context except in the well-established domain of criminal prosecutions.

And, for the proposition that their analysis is entitled to deference, Defendant cite to State v. Rolfe, 166 Vt. 1, 7 (1996). However, in Rolfe, at issue was an administrative agency’s rulemaking pursuant to an enabling statute, and there was “no dispute that the[] regulations were adopted in accordance with the Vermont Administrative Procedure Act, 3 V.S.A. §§ 817-849.” 166 Vt. at 6. Here, by contrast, there were no rules or regulations promulgated at all, much less in accordance with the Vermont Administrative Procedure Act. If anything, Rolfe underscores the illegitimacy of Defendants’ acts.

c. Defendants’ Remaining Arguments Fail.

In an effort to support the MOU, Defendants continue to argue that other Governors have acted similarly. This misses the mark for several reasons. For one thing, the fact that other Vermont Governors have done it and, in effect, gotten away with it, hardly shows that it is legal; presumably, these acts went unchallenged, or else the Defendants would have cited to some legal authority, as opposed to an apparent historical occurrence, in support of what they have done. It is hardly surprising that the United States Supreme Court long ago rejected this kind of faulty reasoning. See, e.g., Youngstown Sheet & Tube Co., 343 U.S. at 588 (“It is said that other Presidents without congressional authority have taken [this action]. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws . . . .”).

For another, the fact that other Vermont Governors have entered into MOUs for different periods of time and in different percentages of records sealed demonstrates only that Defendants prefer to make up the rules as they go along. Governor Kunin purported to seal her records for only six years; for Governor Dean, it was ten years. The Secretary of State cannot simply make up the rules as she seems appropriate, however reasonable those rules may or may not seem to be. The Archive Statute provides for rulemaking, see 3 V.S.A. § 117(e), but Defendants do not cite that provision. Why? Because, in executing these MOUs, no one even purported to follow the procedure for the adoption of rules mandated by the Administrative Procedure Act, which include provisions for publication of proposed rules, public hearings, comment and review by legislative committee. See 3 V.S.A. § 836, et seq. The fact is, there are no rules here, only a usurpation of power by the executive branch (as explained, supra).

Defendants’ suggestion that their MOU conforms with other states’ practices is not just irrelevant (see n.5, supra), but is incorrect. Research has yielded no case law anywhere in the country permitting this practice, and, according to a recent survey, most Governors in this country do not have the authority to deny access to records after their term ends.^{^[9]}

In addition, the lower court correctly noted (as a “moreover” point) that the MOU itself contemplates that a valid court order might require the disclosure of these public records. The State’s argument that this provision in the MOU is not “an advance endorsement of any particular court order” seems to miss the point. See Appellants’ Brief at 31.

Finally, Defendants’ half-hearted argument that the State Archives Act trumps the Public Records Act because the former is more “specific” was properly rejected by the lower court. PC-0002. The characterization of these statutes is incorrect. The Public Records Act specifically authorizes the public’s right to access public records, and is what controls here.

* * *

In sum, the MOU is a stunning piece of fiction masquerading as law. It is legally irrelevant. It is a self-created side-deal that Defendants suggest somehow overrules the requirements of the Public Records Act and applicable Vermont Supreme Court precedent. But it does not. The MOU is an unenforceable contract as a matter of law. It clearly violates the separation of powers, in that the executive branch has usurped the powers of the legislature (by enacting its own laws) and ignored judicial precedent (by failing to comply with Vermont Supreme Court precedent). It is not authorized by the Archive Statute, and Defendants’ interpretation to the contrary is entitled to no deference because it leads to an absurd result and because the MOU was not the result of valid rulemaking under the Vermont Administrative Procedure Act. For all of these reasons, the lower court’s decision should be affirmed.

II. DEFENDANTS’ REQUEST FOR $187,650 WAS CORRECTLY DENIED.

Defendants asked the lower court to direct Judicial Watch to pay, in advance, the sum of $187,650 for their claimed costs in providing an index that would assert the grounds for their claim of executive privilege. In other words, Defendants sought the cost of resisting compliance with their disclosure obligations under the Public Records Act. The lower court denied this request.

Defendants did not seek interlocutory review of this denial, so the issue was not certified by the lower court for appellate review and is not properly before this Court. In any event, the denial was correct, for the Public Records Act does not permit the State to charge those who seek public records the claimed costs of resisting that request.

A. This Issue Was Neither Appealed Nor Certified For Appeal.

Because this is an interlocutory appeal, the lower court’s order “contain[s] a statement of the grounds upon which appeal has been permitted.” See V.R.A.P. 5(b)(1). The general rule is that where, as here, the lower court has certified the issues on appeal, this Court’s review is confined to those issues. See, e.g., Pasquale v. Genovese, 139 Vt. 346, 349 (1981) (“The usual rule on interlocutory appeals has been to confine the review to the express questions certified by the court below”). Here, the issues certified for appeal do not include the Defendant’s request for claimed costs.

Indeed, this is no surprise, for the State sought interlocutory review of the February 13 order granting the Rule 12(c) motion, not the May 10 order that denied its request for payment. Defendants concede this point. See Appellant’s Brief at 34, n.8 (issue “not strictly within the scope of the court’s February 13, 2004 ruling”). In fact, the State did not even seek interlocutory review of the order denying the request for payment, so it should not try to slip the issue in on this appeal.

B. Defendants’ Request For $187,650 Was Correctly Denied.

In any event, if this Court should decide to reach the issue, the lower court got it right: Defendants’ request that Judicial Watch pay $187,650, in advance, to cover their claimed costs of compliance with the Public Records Act was correctly denied. The Public Records Act provides that public records shall be made available for inspection during regular office hours, without charge:

Any person may inspect or copy any public record or document of a public agency, on any day other than a Saturday, Sunday, or a legal holiday, between the hours of nine o’clock and twelve o’clock in the forenoon and between one o’clock and four o’clock in the afternoon; provided, however, if the public agency is not regularly open to the public during those hours, inspection or copying may be made during customary business hours.

1 V.S.A. § 316(a). Defendants continue to ignore this provision. Instead, they cite to 1 V.S.A. § 316(c). But that provision is inapposite, providing for the collection of the cost of staff time, in certain circumstances, “associated with complying with a request for a copy of a public record.” (emphasis added). Judicial Watch has the right to review the public records, without seeking a copy, and thus without being charged. In other words, the actual cost of complying with Judicial Watch’s Public Records Act request is not $187,650, but zero.

After all, the documents at issue are already segregated and sitting in boxes, and Judicial Watch simply wants to review them. As noted above, Judicial Watch requested “access to and a copy of” these public records. See Complaint, Exh. 1. It is true that, as a non-profit, tax-exempt 501(c)(3) educational foundation, Judicial Watch requested a waiver of any duplication fees. Id. However, the issue of duplication costs was never reached, because Defendants flatly refused to make any of the 150 boxes of documents available in any form. In any event, free access to review public records is mandated under 1 V.S.A. § 316(a), and, if copies are desired but the Defendants refuse to honor Judicial Watch’s request for a waiver, then 1 V.S.A. § 316(b) provides for the actual costs of using the copying equipment. That kind of nominal fee is all that is potentially involved here. But the access is free.

Under Vermont case law, the government is required to prove its case for privilege if it wants to keep documents secret; to that end, the lower court has afforded Defendants yet another opportunity to meet its burden by preparing a Vaughn index of documents (despite Judicial Watch’s urging that Defendants’ opportunity to meet that burden has long since past). What Defendants now seek is not the cost of compliance, but the cost of resisting making these public records available. But the cost-shifting statute for compiling and copying documents simply does not include these claimed costs. Instead, it contemplates charging where “the time directly involved in complying with the request exceeds 30 minutes.” 1 V.S.A. § 316(c)(1). Here, the documents are already segregated in discrete boxes, so complying with the request for production would take no time. Just open the lids.

The statute also contemplates charging where the agency “agrees to create a public record.” 1 V.S.A. § 316(c)(2). Here, however, the agency is not being asked to create a public record, but is being asked to comply with Vermont law by meeting its burden of establishing a claimed privilege. As far as Judicial Watch is concerned, Defendants need not create a single document, but should instead make all 150 boxes available for inspection right now. The lower court has afforded Defendants the opportunity, even at this late date, to meet its burden (and Judicial Watch respectfully submits that the Court should not have done so). But if Defendants want to avail themselves of that opportunity, Judicial Watch should not be charged for it.^{^[10]}

As the lower court correctly held:

Denying access is not ‘complying’ with a request for access. Creating a Vaughn index by court order to assist the factual evaluation of the propriety of a principled denial of access is neither compliance with the access request nor the creation of a public document within the meaning of § 316(c)(2). The State’s view of ‘compliance’ seems to include whatever may become involved in a response to an access request, including the expense of litigating the denial of access. Such an expansive interpretation could cripple cumbersome requests with unnecessarily high expenses. That the legislature could not possibly have intended; the Act is designed to encourage access, not to thwart it. PC-0009.

C. Defendants’ Attempt To Change Their Story Is Not Before This Court, And Should Be Rejected.

In their brief on this appeal, Defendants present their new version of a fact that previously had been undisputed, namely, how many boxes are at issue here. The lower court never had occasion to make a factual finding on this score, so it was obviously not certified for review. The issue is not before this Court.

Nevertheless, this is what happened: By affidavit dated March 15, 2004, Dalton swore – based on his “personal knowledge” – that early last year some 320 boxes of Governor Dean’s documents were given to the state archivist “pursuant to the Memorandum of Understanding” (the “MOU”). The MOU describes these documents as the Governor’s “official correspondence.” Dalton swore that 170 of those boxes of

official correspondence were “open,” while 150 of those boxes of official correspondence were to be “sealed” under the MOU. PC-0306 (Dalton Affidavit). Thus, according to Dalton’s first sworn statement, the universe of Governor Dean’s boxes^{^[11]} of documents being held at the archive looks like this:

One month later (and a full eight months after Judicial Watch’s initial request for access), Dalton has changed his story. In his Supplemental Affidavit claimed to be based on information received from an unnamed Dean “representative” and an impressive one-day review of the contents of 59 boxes,^{^[12]} Dalton rewrites history (without explaining what happened to his “personal knowledge” from a month ago). Dalton now tells us that of the 150 boxes of sealed documents, 59 of them are no longer “official correspondence.” PC-0538 to PC-0539. In other words, Defendants seek to carve out a slice of documents from the universe of documents provided to the archivist pursuant to both the Archive Statute and the MOU as “official correspondence.” According to Dalton’s second sworn statement, the universe of documents is characterized as follows:

Text Box:

Dalton also announces that the court should correspondingly reduce Defendants’ previous, preposterous calculations of time required to index these public records.^{^[13]}

This rewriting of history should be seen for the tactic that it is, and not be permitted to serve as an escape hatch that allows the Defendants to avoid their obligations required by law.^{^[14]} They should be held to their prior submissions to the court. The fact that Governor Dean delivered the boxes of documents to the Secretary of State for archiving pursuant to the MOU is dispositive of the fact that the boxes are, in fact, “official correspondence.” The idea that it was a “mistake” (see Appellants’ Brief at 9, n.2) is neither credible nor sufficient to rewrite the record.

CONCLUSION

For all of the foregoing reasons, the lower court’s decision should be affirmed.

Dated: Burlington, Vermont

August 2, 2004

Paul J. Orfanedes, Esq.

Judicial Watch, Inc.

501 School Street, S.W., Suite 725

Washington, DC 20024

(202) 646-5172

and

___________________________________Andrew D. Manitsky, Esq.

Gravel and Shea

76 St. Paul Street, 7th Floor

P. O. Box 369

Burlington, VT 05402-0369

(802) 658-0220

For Appellee

^{^[1]} This effectively summarizes the three questions certified for this interlocutory appeal by the lower court, namely:

1. Whether an agreement between the Governor and the Secretary of State controlling access to 3 V.S.A. § 4 records in the custody of the Secretary of State may preempt the Access to Public Records Act to the extent that their terms conflict;

2. Whether 3 V.S.A. § 117(g)(9) [the “Archive Statute”] authorizes the Secretary of State to enter into such an agreement, or otherwise authorizes the Secretary of State to limit access to records in the custody of the Secretary of State in conflict with the Access to Public Records Act; and

3. Whether a Governor’s self-certification of executive privilege may function as a prima facie showing of executive privilege absent the provision of adequate factual support and without the factual analysis of a reviewing court in the context of an Access to Public Records Act request for 3 V.S.A. § 4 records in the custody of the Secretary of State on appeal to the superior court.

^{^[2]} This issue of “costs” was neither certified by the lower court, nor requested to be certified by Defendants. Nevertheless, because Defendants have argued it on appeal, we address it herein.

^{^[3]} As the United States Supreme Court in Youngstown explained:

The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress – it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. . . . The Constitution did not subject this law-making power of Congress to presidential or military supervision or control. 343 U.S. at 588 (emphasis added).

^{^[4]} See also In re Plaisted, 824 A.2d 148, 152 (N.H. 2003) (“matters of public policy are reserved for the legislature”); Cockrell v. Bd. of Regents of New Mexico State Univ., 45 P.3d 876, 883 (N.M. 2002) (“it is the particular domain of the legislature, as the voice of the people, to make public policy”) (citation omitted); Santa Ana Hosp. Med. Ctr. v. Belshe, 65 Cal. Rptr. 754, 764 (Cal. Ct. App. 1997) (“It is for the Legislature to make public policy”); Clemens v. Harvey, 525 N.W.2d 185, 198 (Neb. 1994) (“It is the function of the Legislature through the enactment of statutes to declare what is the law and public policy of this state”); People v. Felella, 546 N.E.2d 492, 498 (Ill. 1989) (“Declaring public policy is the domain of the legislature”); Republic Natural Gas Co. v. Axe, 415 P.2d 406, 411 (Kan. 1966) (“the executive branch of the government...has no authority to legislate or set public policy”); Picone v. Comm’r of Licenses, 149 N.E. 336, 338 (N.Y. 1925) (“Laws are made by the law making power, and not by administrative officers acting solely on their own ideas of sound public policy, however excellent such ideas may be”).

^{^[5]} See, e.g., PC-0140 (these “agreements have ensured that the public will eventually obtain access to documents that might never be available for inspection because of the otherwise unlimited duration of executive privilege”); Appellants’ Brief at 13, 20 (without MOUs “a retiring Governor has no incentive to waive executive privilege”; “there is no prescribed time limitation on the assertion of executive privilege”). Defendants offer no legal support for this “unlimited in duration” concept. All they do is note that “various legislatures” have allowed retiring chief executives to restrict access to their papers for extended periods of time. Appellants’ Brief at 15, n.5 (citing Presidential Records Act and California statute). We submit, however, that the existence of these statutory authorities cuts the other way. That is, in the absence of such statutory authority (such as in Vermont), the default time period for a post-term Governor is zero.

^{^[6]} In this regard, it is worth noting that Governor Dean ignored the statutory requirements of 3 V.S.A. § 4 to provide a complete “itemized list” of his correspondence. It was at the time of his retirement, when he was supposed to have complied with the “itemized list” requirement, that he should have asserted any legitimate claims of executive privilege.

^{^[7]} As Professor Cox explained in his seminal article published some thirty years ago (which the Vermont Supreme Court cited in Killington, Ltd. v. Lash, 153 Vt. 628, 634 (1990) and which the Defendants cited in their “Memorandum of Understanding”):

Claims of executive privilege have become increasingly frequent. . . . If the Executive Branch were left to itself, the practice would surely grow. Secrecy, if sanctified by a plausible claim of constitutional privilege, is the easiest solution to a variety of problems. The claim of privilege is a useful way of hiding inefficiency, maladministration, breach of trust or corruption, and also a variety of potentially controversial executive practices not authorized by Congress. Ability to control what information to disclose and when to disclose it is a potent political weapon. The evidence finally released by President Nixon just prior to his resignation made it abundantly clear that executive privilege had been used not to protect the Presidency, but to hide the misconduct of the President himself.

Archibald Cox, “Executive Privilege,” 122 U. Pa. L. Rev. 1383, 1433 (1974). See also 16A Am. Jur. 2d Constitutional Law § 247 (1998 & Supp. 2003) (“The principle of the separation of the powers of government is fundamental to the very existence of constitutional government as established in the United States. The division of governmental powers into executive, legislative, and judicial represents probably the most important principle of government declaring and guaranteeing the liberties of the people. It prevents the exercise of autocratic power. . . . In short, this division of power provision serves to create a governmental structure ‘resistant to the forces of tyranny.’”) (citing, inter alia, In re D.L., 164 Vt. 223 (1995)).

^{^[8]} As the lower court stated in rejecting Defendants’ argument: “The court cannot believe that the legislature intended such an important but odd result....The court cannot believe that the legislature intended such an oblique reference to access to vest the Secretary of State with the expansive authority urged by the State.” PC-0002.

^{^[9]} See Charles R. Schultz, “Gubernatorial Records: Status, Access, and Content,” Paper delivered at the Society of American Archivists Annual Meeting 71-72 (Birmingham, Alabama, August 23, 2002) (“Question 33: Do your state laws exempt all or a portion of the records of the Governor’s office from public disclosure for a specific number of years after the Governor leaves office?” Response included only five “yes” answers.). This paper can be found at the website of the Council of State Historical Records Coordinators (COSHRC), www.cohrc.org.

In the MOU, Defendants cite to the “Guidelines for Access to Governor Kean’s Official Papers” in support of “ten years” as “a reasonable but brief period in comparison to the ‘executive privilege’ closing periods used in other jurisdictions.” Answer, Exhibit 1 at 2, n.3. The citation is erroneous. Although Governor Kean did establish guidelines for access to his papers (including papers containing private financial information and police investigations), in those guidelines he expressly waived any assertion of executive privilege: “Subject to the exceptions noted above, I waive all claims of legal or executive privilege pertaining to my official papers.”

^{^[10]} We cannot help but note that Defendants’ request for $187,650 is preposterous on its face. Indeed, by their calculation, it will take 6,950 hours to review 150 boxes of documents. Defendants studiously avoid identifying the number of boxes at issue, choosing instead to refer to “cubic feet” of papers, but 150 bankers’ boxes is what is at issue here. That means that, according to Defendants, it would take more than a week to index a mere box of documents. It means that, according to Defendants, it would take a person working regular hours about four years to conduct this indexing project.

^{^[11]} A typical bankers’ box is about one cubic foot, which is the unit of measurement currently utilized by Defendants. Thus, for ease of reference we use the term “boxes” rather than “cubic feet.”

^{^[12]} It bears mentioning that Mr. Dalton’s review for this purpose (59 boxes of documents in one day) stands in stark contrast to the rate of review he previously predicted for the purpose of complying with Defendants’ legal obligations under the Public Records Act (less than one box per week).

^{^[13]} Defendants’ new strategy suggests that they are now refusing to provide the index (contemplated by the court’s February 13 decision) of these 59 boxes by virtue of their convenient “renaming” of the documents at this late stage. The lower court has not ruled on the issue.

^{^[14]} Based on the sudden shift in stories as well as Dean’s remark when he was still a presidential candidate, as recently reported in the Atlantic Monthly, that he would have sooner dropped out of the election than produce the documents because they contain candid political comments, it is difficult not to conclude that Dean knows that some of the documents he has sealed cannot even arguably be considered protected by executive privilege, so rather than admit that fact and make the documents available to the public, the politically convenient tactic is to say they are not even official correspondence anymore.