STATE
OF VERMONT WASHINGTON
SUPERIOR COURT
WASHINGTON COUNTY, SS. Civil
Action, Docket No. 656-12-03 Wncv
JUDICIAL WATCH, INC.,
Plaintiff
v.
THE STATE OF VERMONT,
DEBORAH L. MARKOWITZ,
in her official capacity as Secretary of
State of the State of Vermont,
GREGORY SANFORD,
in his official capacity as State Archivist
of the State of Vermont, and
HOWARD DEAN, M.D.,
in his capacity as former
Governor of Vermont,
Defendants
PLAINTIFFS OMNIBUS
MEMORANDUM OPPOSING DEFENDANTS
MOTION FOR RECONSIDERATION / INTERLOCUTORY APPEAL AND
IN RESPONSE TO DEFENDANTS MEMORANDUM ON THE 7-STEP PROCESS
Defendants have moved for reconsideration (the Reconsideration Motion) of the
Courts decision dated February
13, 2004 (the Decision) or, in
the alternative, for permission to take an interlocutory appeal. Defendants have also submitted a
memorandum (the Process Memorandum) regarding adoption of the 7-step process set forth in the
Decision, seeking payment of $187,650 in exchange for their compliance with the
Public Records Act. Each of these
requests should be denied.
The motion to reconsider should be denied because it is
merely a rehash of arguments previously made.
Further, interlocutory appeal is not appropriate, not just because this
Court expressly directed the parties not to make such a motion until it finalized
the process contemplated by the Decision, but because Defendants do not meet the
strict standard for such relief.
Finally, Defendants
outlandish request for payment of $187,650 should be firmly rejected. The actual cost of complying with Judicial
Watchs Public Records Act request for
Governor Deans official correspondence is zero. After all, the documents that Judicial Watch
wants to review are already segregated and
sitting in boxes. Under Vermont case law, the government is
required to prove its case for privilege if it wants to keep documents
secret. What Defendants now seek is not
the cost of compliance (since Governor Deans
official correspondence has already been collected), but
the cost of resisting making these public records available. That is, Defendants are looking to be paid to
meet their burden of making a prima facie showing of executive privilege (which
they should have done last year). The cost-shifting statute for compiling and
copying documents simply does not include these costs.
1. The
Motion For Reconsideration Should Be Denied.
Defendants motion
for reconsideration based on arguments about public interest considerations, deference to the Secretary of State and the fact that other governors have
entered into MOUs creates
a startling sense of deja vu. That is because Defendants motion for reconsideration is a rehash of arguments they
have already made. It does not call to
the Courts attention any overlooked facts or
law. Instead, it is merely an attempt to
relitigate an issue already decided. Accordingly, the motion should be denied.
The standard for granting a motion to reconsider is strict,
and reconsideration will generally be denied unless the moving party can point
to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter
the conclusion reached by the court. A
motion to reconsider should not be granted where
the moving party seeks solely to relitigate an issue
already decided.
Latouche v. North Country High School Dist., 131 F. Supp. 2d 568, 569 (D. Vt. 2001) (denying motion to
reconsider summary judgment ruling where defendant cites no new controlling decisions nor data that the Court
overlooked but instead seems to simply seek to relitigate
the issues that the Court decided against it),
quoting Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995).
In their Reconsideration Motion, Defendants make essentially
the same sweeping (and unsupported) statements about public
interest considerations and
baseless legal arguments about deference as they did in their 12(c) Opposition. Compare, e.g., Reconsideration Motion
at 16 (The broad grant of authority from the
Legislature to the Secretary of State, an elected
official, must be acknowledged. Other
broad grants of authority to elected officials have been recognized by the courts.) with 12(c) Opposition at 13 (the statute grants broad discretion to the Secretary of
State, an elected official, to exercise her judgment. Other broad grants of authority to elected
officials have been recognized by the courts.). In rejecting these arguments the first time,
the Court expressly noted that it has
examined the States policy justifications for allowing
the Secretary of State to agree to refuse access to 3 V.S.A § 4 records, and is aware that previous governors have
entered into this type of agreement with the Secretary of State. Decision at 2. While Defendants expound a bit more on their
unsupported statements of policy, there is no new legal authority or overlooked facts presented in the
Reconsideration Motion. Accordingly,
there is no basis for reconsideration.
Moreover, last time, Defendants arrogantly boasted 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. See 12(c) Opposition at 6 (these agreements have ensured that the public will eventually
obtain access to documents that might never be available for inspection). They argued that the confidentiality agreements have encouraged governors to
give a broad reading to the undefined term official
correspondence in 3 V.S.A. § 4(a), thereby maximizing the number of documents delivered
by each governor to the secretary of state. Id. at 5-6. This time they turn up the volume of their
whispered threat, but it is still more of the same. See Reconsideration Motion at 4-5 (if the Secretary of State cannot enter into agreements with
retiring governors that allow sealing of documents for a period of time in
return for a waiver of executive privilege, the public interest is likely to be
undermined. Future retiring governors
will have no incentive to interpret the term official
correspondence expansively....Moreover, without the
benefit of the MOU...a retiring governor has no incentive to waive executive
privilege).
In other words, Defendants say, if they are not allowed to do whatever
they want with admittedly public records, then the public might never see another
public record again. This argument,
while even more offensive the second time around, was previously presented to the
Court and rejected.
In sum, Defendants have not presented a valid
motion for reconsideration, so it should be denied summarily. Even if the Court were to grant the motion to
reconsider (and revisit the issues), the result should be the same, for this
Court correctly granted Judicial Watchs 12(c)
motion with respect to the MOU. The MOU
is a legal fiction. It is a self-created
side-deal that cannot trump the requirements of the Public Records Act and
applicable Vermont Supreme Court precedent.
And while the Court did not expressly discuss the issue last time, it
bears repeating that the MOU is nothing short of a violation of 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). Defendants argument
that entering into the MOU was somehow authorized by the Archive Statute was,
and continues to be, entirely baseless for the reasons set forth in our prior
submissions and in the Decision. See,
e.g., Reply Memorandum at 3-6 (arguing, inter alia,
that Defendants reading of Archive Statute to allow
them to write their own laws to trump the Public Records Act is without merit and
absurd); Decision at 2-3 (concluding that Defendants reading leads to odd
result and rejecting argument that Secretary
of State is vested with such expansive
authority).
2. Defendants Request For Interlocutory Appeal Should Be Denied.
Interlocutory appeals cause unnecessary
delay and expense, waste[]
scarce judicial resources and impair [the Supreme] Courts basic
functions of correctly interpreting the law and providing justice for all litigants. In re Pyramid Co.
of Burlington, 141 Vt. 294, 300-301 (1982).
Under V.R.A.P. 5(b)(1), an interlocutory appeal is appropriate only
where the judge finds [1] that the order or
ruling involves a controlling question of law as to which there is substantial
ground for difference of opinion and [2] that an immediate appeal may
materially advance the termination of the litigation.
Defendants
half-hearted argument that this standard is met should be rejected. First, there is no ground, much less a substantial ground,
for a legitimate difference of opinion as to the legal import of the MOU. The MOU has no legal import (save being
probative of the lack of the application of executive privilege). See Decision at 3 (The MOU establishes that no gubernatorial claims of
executive privilege will be asserted beyond January 10, 2013.
To the extent that such a claim can lose vitality with the passage of
time, a firm date beyond which no claim will be advanced may have some impact
on the application of the privilege.). Second, immediate appeal will not advance the
termination of the litigation. Indeed,
in the Decision, the Court contemplates the appealability
of orders directing the disclosure vel non
of documents once the record on that score has been made. See Decision at 6 (both parties will be given the opportunity to seek review of
each order of disclosure or nondisclosure). In view of this clear language, there is no
conclusion to be reached other than that Defendants motion is yet another delay tactic, and another effort to
drain the resources of Judicial Watch, a non-profit, educational foundation.
The motion for interlocutory appeal should be denied.
3. Defendants Request For $187,650 Should Be Denied.
Defendants request that this Court direct Judicial Watch to
pay $187,650, in advance, to cover their claimed costs of compliance with the
Public Records Act as directed by the Courts
Decision. However, 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 oclock and
twelve oclock in the forenoon and between one
oclock and four oclock 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 do not cite to 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 Watchs 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. 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 145
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 Watchs 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.
Defendants request
for fees pursuant to 1 V.S.A. § 316(c)
makes no sense. To be sure, the Court cited this
provision in its Decision (at 4) in the context of encouraging good faith on
both sides. Here, however, Defendants
not only persist in making wasteful motions, but have now admitted
that they failed even to create an itemized list of the sealed documents
despite the mandate of 3 V.S.A. §
4(a). See Decision at 5 (An itemized
list of the undisclosed correspondence should exist already.) (citing 3 V.S.A. § 4(a));
Dalton Affidavit at 3, 4 (The
practice of the State Archives has been to begin the task of organizing sealed
gubernatorial papers and creating finding aids for those papers at the time
they are unsealedΌ.[N]either departing governors nor the State Archives have routinely
prepared comprehensive lists that identify or describe particular gubernatorial
papers held by the State Archives). Yet Defendants seek to charge Judicial Watch
for their claimed costs in preparing a list that should already exist.
Moreover, under Vermont case law, the government is
required to prove its case for privilege if its wants to keep documents secret;
to that end, this Court has afforded Defendants yet another opportunity to meet
its burden by preparing a Vaughn index of documents (despite Judicial
Watchs 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. In fact, the bill for $187,650
does not even include the assertions of privilege, but contemplates only the
basic step of describing the documents, which makes the request (and Defendants transparent delay tactics) even more unconscionable. See Dalton Affidavit at 5 (The
State Archives would not undertake to justify any claims of privilege or
exemption under the Public Records Act.
That work would have to be done by the Executive or by other executive
agencies. The time estimates provided in
this Affidavit are estimates of work to be done and time to be spent by the
State Archives only.)
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.
3 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. 3 V.S.A. § 316(c)(2). Here,
however, the agency is not being asked to create a public record, but is being
ordered 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 145 boxes available for inspection right now. The Court is affording Defendants the
opportunity, even at this late date, to meet its burden (and Judicial Watch
respectfully submits, especially in view of Defendants latest filings, that the Court should not have done
so). If Defendants want to avail
themselves of that opportunity, Judicial Watch should not be charged for it.
Finally, Defendants suggest that there should not be specific deadlines for
preparation of a Vaughn index.
Judicial Watch objects to this suggestion. It is yet another transparent attempt at
building delay into a process that is supposed to be expedited. It also ignores the directives of this
Court. See note 6, infra,
and accompanying text regarding award of costs and attorneys fees.
CONCLUSION
This Court should make it very clear that Defendants continued attempts to delay and obstruct access to public
documents will not be tolerated. At every turn, they
have thrown whatever obstacle they can think of in front of this process. For all of the reasons set forth herein and
in our prior submissions, Defendants motion
for reconsideration and, in the alternative, for interlocutory appeal should be
denied. Defendants request for $187,650 in connection with their preparation
of a Vaughn index to allow
them to meet their burden of establishing privilege should be rejected.
Judicial Watch should be awarded its costs and reasonable
attorneys fees incurred in bringing this
action, since it has already substantially
prevailed under 1 V.S.A. § 319(d) by virtue of this Courts rejection of Defendants
MOU. As noted in the
Decision, [i]n
response to Judicial Watchs Rule
12(c) motion, however, the State only briefed the issue of the MOUs validity. Decision at 1.
Judicial Watch should also be awarded its costs and
reasonable attorneys fees in
being forced to respond to Defendants
Reconsideration Motion and Process Memorandum.
The Reconsideration Motion was lengthy, repetitive and meritless; it ignored the Courts briefing schedule established to move this case forward,
and served only to increase delay of, and Judicial Watchs cost of pursuing, the release of admittedly public
records. Defendants Process Memorandum is just as objectionable, not just on
the merits, but because it ignored the issues highlighted by the
Court for briefing. Defendants failure
to comply with the Courts
briefing schedule as directed and contemplated by the Decision should not be countenanced. An award of costs and fees is appropriate.
Dated: Burlington,
Vermont
March 18, 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, P. O. Box 369
Burlington, VT 05402-0369
(802) 658-0220
For Plaintiff
Judicial
Watch requested access to and a copy of these public records. See Complaint, Exh.
1. As a non-profit, tax-exempt 501(c)(3)
educational foundation, requested
a waiver of any duplication fees. Id. The issue of duplication costs was never
reached. Defendants refused to make any
of the 145 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 Watchs request, 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. The access
is free.
In fact, the
bill for $187,650 does not even do this.
See Dalton Affidavit at 5 (The State Archives would not
undertake to justify any claims of privilege or exemption under the Public
Records Act. That work would have to be
done by the Executive or by other executive agencies. The time estimates provided in this Affidavit
are estimates of work to be done and time to be spent by the State Archives
only.)
12(c)
Opposition
refers to Defendants
Memorandum in Opposition to Plaintiffs Motion for Judgment on the Pleadings
dated February 6, 2004.
Also
compare Reconsideration Motion at 3
([T]he public has an interest in the preservation of archival materials...[and]
in an unencumbered and cooperative transition between governors) with 12(c) Opposition at 4-5 (The office of Secretary of State is
charged by law with preservation of archival materials....At the same time,
Vermonts
governors have an interest in preserving executive privilege...for the benefit
of successors in the Governors
Office).
Similarly, Defendants repeat the same
argument that other
governors have done this. Compare Reconsideration Motion at 3 (The Gubernatorial Papers MOU...has
been entered into by every Vermont governor since Governor Kunin) with 12(c) Opposition at 5 (Governors Kunin,
Snelling (through his representative), and Dean
entered into substantially similar memoranda of understanding with different
Secretaries of State.).
In
the Decision, the Court observed that the MOU plainly states without express
limitation that the undisclosed documents shall be accessible pursuant to a
valid court order.
Decision at 3. Defendants argue in
response to this observation that the valid court order exception in the MOU cannot be
interpreted to confer jurisdiction under the
Public Records Act and, in any event, as a matter of law the MOU cannot confer
jurisdiction. Reconsideration at 7; see also
Reconsideration at 22-24. Leaving aside
the irony of Defendants
disavowal of their own MOU here, argument regarding jurisdiction is unintelligible. This
Court clearly has jurisdiction to hear Public Records Act cases under 1 V.S.A. § 319(a) (Any person aggrieved by the denial of
a request for public records...may apply to the superior court...to enjoin the
public agency from withholding agency records and to order the production of
any agency records improperly withheld from the complainant).
In fact, jurisdiction is not, and
never was, at issue. Rather, the issue
on the 12(c) motion was whether the MOU in and of itself counts for anything
toward establishing executive privilege.
The answer is no, for (as the Court noted) the MOU does not even purport to
meet the well-settled burden under Vermont law for establishing privilege, and
expressly contemplates that a court order may permit access. Thus, we believe that the Court was making the
simple and interesting point (in a paragraph beginning with the word Moreover) that even the MOU itself upon which
Defendants rely demonstrates in clear terms that the MOU does not resolve the
issue of executive privilege.
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 145 boxes of documents. Defendants studiously avoid identifying the
number of boxes at issue, choosing instead to refer to cubic feet of papers, but 145 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. To say that this
strains credulity is an understatement; at best, it is an embarrassing message
about the efficiency to which our state government leaders aspire. A legal assistant, a UVM student or a sharp
high school senior could no doubt index 2 or 3 boxes a day, perhaps more. Surely our state employees can perform at
least as well.
See Decision at 6 (The court directs the parties attention to the following
issues....a) how the undisclosed material should be divided or categorized...b)
what standardized types of information should be expected in each Vaughn index; and c)
the time frame for the processing of each subset of materials and the schedule
for the processing of all subsets of materials.).
Defendants said nothing about the first two issues, and effectively flouted the third, arguing that there should
be no time frame or schedule, other than a slow, incremental one.