Judicial Watch, Inc. v. State of Vermont, Deborah L. Markowitz, Secretary of State, Gregory Sanford, State Archivist and Howard Dean, M.D., Former Governor
No. 04-209
Supreme Court of Vermont
Opinion Filed November 4, 2005
Motion for Reargument Denied December 21, 2005
2005 VT 108 | 892 A.2d 191
Present: Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and Gibson, J. (Ret.), Specially Assigned
William H. Sorrell, Attorney General, William E. Griffin, Chief Assistant Attorney General and Mark J. Di Stefano, Assistant Attorney General, Montpelier, for Defendant-Appellant.
¶ 1. Skoglund, J. We accepted this interlocutory appeal to determine whether the Secretary of State may enter into an agreement with a
¶ 2. The material facts are largely undisputed. In preparation for his impending retirement, Governor Howard Dean entered into a memorandum of understanding with the Secretary of State regarding the archival storage of his gubernatorial papers. The memorandum, signed in early January 2003 by the Governor, the Secretary of State, and the Attorney General, states that its purpose “is to establish clear guidelines to govern public access to ‘the official correspondence of the Governor‘” under
¶ 3. Although the trial court made no specific findings on the volume of the records at issue, it was undisputed that the state archives acquired approximately 320 cubic feet of records from Governor Dean (one cubic foot is the equivalent of one standard-size storage box), of which approximately 150 cubic feet were designated as containing privileged material. The Governor later reduced the number of sealed gubernatorial records to approximately 93 cubic feet.
¶ 5. Plaintiff subsequently moved for judgment on the pleadings. The State opposed the motion, arguing that plaintiff had failed to demonstrate as a matter of law that the memorandum of understanding was invalid, and asserting that the case should be decided on the basis of summary judgment following additional factual development. The trial court issued an initial decision in February 2004, concluding that the Archives Act did not authorize the Secretary to restrict access to records deemed to be privileged by Governor Dean; that the records in question were governed by the PRA; and that, as this Court has recognized, a prima facie claim of executive privilege under the Act‘s exception for “common law privilege,”
¶ 6. The State moved for reconsideration of the court‘s decision or, in the alternative, for permission to file an interlocutory appeal. The State also submitted a memorandum addressed to the proposed process for adjudicating executive privilege claims. The State‘s memorandum included a request for an order requiring plaintiff to pay the estimated $18,900 in staff costs that would be incurred in creating a guide to the sealed documents, and the estimated $168,750 in costs for summarizing
¶ 7. While we recognize the competing public-policy interests vigorously advanced by the parties in this case, the issue — in our view — turns principally on statutory language and meaning. See In re Huntley, 2004 VT 115, ¶ 6, 177 Vt. 596, 596, 865 A.2d 1123, 1124 (mem.) (in determining statutory meaning, we are guided by the Legislature‘s intent as evidenced principally by the language of the statutes themselves). The PRA provides a broad right of access to public records, qualified by a list of specific exceptions that must be strictly construed in favor of disclosure. Springfield Terminal Ry. v. Agency of Transp., 174 Vt. 341, 345, 816 A.2d 448, 452 (2002). The State Archives Act,
¶ 8. It is axiomatic that “[i]n construing conflicting statutes that deal with the same subject matter, the more specific provision controls over the more general one.” Stevenson v. Capital Fire Mut. Aid Sys., Inc., 163 Vt. 623, 625, 661 A.2d 86, 88 (1995) (mem.); accord State v. Benoir, 174 Vt. 632, 633, 819 A.2d 699, 702 (2002) (mem.). Although it is undisputed that a governor‘s official correspondence falls within the general scope of public records subject to the PRA, it is also apparent that these materials represent a specific subset of public records subject to more precise statutory control. As noted, a distinct provision,
¶ 9. Our reading of the statutory text finds additional support in two external sources. See In re Hinsdale Farm, 2004 VT 72, ¶ 5, 177 Vt. 115, 115, 858 A.2d 249, 251 (legislative history and circumstances surrounding statute‘s enactment may be helpful in discovering legislative intent); State v. Ben-Mont Corp., 163 Vt. 53, 57, 652 A.2d 1004, 1007 (1994) (in determining legislative intent, court may look to statutory framework and history). First, although the legislative history is limited, we note that the principal witness in support of the Archives Act, state archivist Gregory Sanford, testified before the Senate Government Operations Committee that the primary purpose of the legislation was to “recognize the current realities” of archival records and management, to reflect current practices, and to give “explicit recognition of archival programs” then in existence. Hearing on H. 338 Before Senate Comm. on Gov‘t Operations, 1989-1990 Bien. Sess. (Vt. Apr. 18, 1990) (Statement of Gregory Sanford). In an affidavit in support of the State‘s motion for reconsideration, William Dalton, the Deputy Secretary of State, stated without dispute that prior to the enactment of the Archives Act in 1990, the Secretary had received official gubernatorial papers from retiring Governors Deane C. Davis in 1973, and Thomas P. Salmon in 1976, in each case conditioned on a two-year restriction on public access. The legislative history thus supports the conclusion that one purpose of the Archives Act was to codify the Secretary‘s longstanding practice — separate and apart from any limitations contained in the PRA — of accepting retiring governors’ official papers with broad restrictions on public access for periods of years.
¶ 10. A second consideration in our interpretation of the statutes is the Secretary of State‘s longstanding construction and implementation of the Archives Act. “Absent compelling indications of error, interpretations of administrative regulations or statutes by the agency respon-
¶ 11. Thus, since its inception, the Secretary of State‘s practice under the Archives Act has been to accept gubernatorial papers subject to special terms or conditions broadly and independently limiting access to materials designated by the outgoing governor as privileged. The administering agency‘s interpretation of the statute is consistent with its plain language and legislative history, and is therefore entitled to substantial deference. See State v. Int‘l Collection Serv., Inc., 156 Vt. 540, 545-46, 594 A.2d 426, 430 (1991) (we give “substantial deference” to interpretation of agency charged with administration of statute). Together, these sources definitively demonstrate the statutory validity of the special term limiting access to the gubernatorial papers at issue here. The trial court‘s conclusions that the ten-year restriction violated the PRA, and that the State was separately required under the Act to make a specific prima facie showing of executive privilege for each document in question, were therefore erroneous.
¶ 12. Plaintiff‘s several arguments to the contrary are not persuasive. First, plaintiff argues that giving effect to the memorandum of understanding would contravene decisional law from Vermont and across the country. The argument is premised on cases holding that confidentiality provisions in litigation settlement agreements or collective bargaining contracts cannot override public records acts.
¶ 13. Plaintiff further contends that the memorandum of understanding encroaches on the authority of the legislative and judicial branches, in violation of the constitutional principle of separation of powers.
¶ 14. Plaintiff‘s argument requires reading the statute to create two essentially identical types of restriction: “special terms” of law, and “conditions of law.” Plaintiff offers no explanation, however, as to why the Legislature would create a superfluous category. See In re Dunnett, 172 Vt. 196, 199, 776 A.2d 406, 409 (2001) (when interpreting a statute, we will not construe it in a way that renders language surplusage); State v. Phillips, 142 Vt. 283, 286 n.1, 455 A.2d 325, 327 n.1 (1982) (declining to construe two statutory clauses as “synonymous” where it would render one “mere surplusage“). More to the point, the Legislature wrote the statute in the disjunctive, referring to “special terms or conditions of law,” which under normal rules of construction suggests
¶ 15. The trial court also relied on a provision in the memorandum of understanding stating that the sealed documents would be made accessible in limited circumstances, including “[p]ursuant to a valid court order.” The court inferred that the exception was intended to incorporate the adjudicative requirements for establishing an executive-privilege claim under the PRA. See New England Coalition, 164 Vt. at 344, 670 A.2d at 820 (proponent of executive privilege must establish prima facie case, specifically identifying document and reasons for privilege). The trial court‘s inference, however, virtually negates the otherwise clear intent of the parties to the agreement to create a broad restriction on access to privileged documents under the separate authority of the Archives Act. The court-order exception more logically contemplates circumstances in which a court has been persuaded that countervailing interests compel disclosure of otherwise privileged documents. See, e.g., State v. Barbera, 2005 VT 13, ¶ 10, 178 Vt. 498, 498, 872 A.2d 309, 311 (mem.) (recognizing that in some circumstances the due process rights of criminal defendants may require access to privileged information about alleged victim); Killington, Ltd. v. Lash, 153 Vt. 628, 638-39, 572 A.2d 1368, 1374-75 (1990) (established claim of executive privilege may be overcome where evidence is essential to defendant‘s right to fair trial or demonstration of alleged governmental wrongdoing). We do not, therefore, interpret the exception to swallow the rule. Nor does the record disclose that plaintiff has claimed or demonstrated a specific interest sufficiently compelling to warrant a court order overriding the otherwise privileged documents under the memorandum of understanding.
¶ 16. Finally, plaintiff asserts that a construction of the Archives Act permitting retiring governors to broadly restrict access to official correspondence that would otherwise have been open to the public during their terms of office (subject to a particularized showing of executive privilege under the PRA) is illogical and absurd. We have recognized the rule of construction that statutes should not be interpreted to produce “absurd or illogical” results. Rhodes, 166 Vt. at 157, 688 A.2d at 1311. The rule does not, however, provide a license to substitute this Court‘s policy judgments for those of the Legislature. As the leading authority on statutory construction has cautioned, “the absurd results doctrine should be used sparingly because it entails the risk that the judiciary will displace legislative policy on the basis of speculation that the legislature could not have meant what it unmistakably said.” 2A N. Singer, Statutes and Statutory Construction § 46.07, at 199 (6th ed. 2000). Thus, as one court has cogently explained, the doctrine merely permits an otherwise reasonable construction when a plain reading of the statute “would produce a result demonstrably at odds with any conceivable legislative purpose.” Taylor-Hurley v. Mingo County Bd. of Educ., 551 S.E.2d 702, 710 (W. Va. 2001); see also Colwell v. Allstate Ins. Co., 2003 VT 5, ¶ 11, 175 Vt. 61, 61, 819 A.2d 727, 731 (declining to reinterpret terms of statute under absurd results doctrine where plain reading would not cause it to “fail in its essential purpose“).
¶ 17. That is plainly not the case here. Although the legislative history is limited, the Secretary of State‘s office — in construing and applying
¶ 18. On a variation of the same theme, plaintiff contends that it would be absurd to construe the Archives Act to permit the ten-year restriction on portions of Governor Dean‘s correspondence because the statute, by its terms, does not expressly limit the extent or duration of restrictions by future governors. Thus, plaintiff argues, a future governor could utterly defeat the public interest in disclosure by negotiating a permanent restriction on all of his or her official correspondence. While such a case is not before us, we note that the statute refers to archived records under terms or conditions “restricting” — not prohibiting or foreclosing — their use. See Random House Unabridged Dictionary, supra, at 1642 (defining “restrict” as “to confine or keep within limits“). Moreover, as discussed, the legislative history of the Archives Act suggests that its purpose was to codify past practice based on restrictions of limited scope and duration, and its implementation has been consistent with this purpose. Accordingly, we perceive no basis to speculate that the statute will invite future abuse, although the Legislature obviously remains free to require more
¶ 19. For all of the foregoing reasons, we conclude that the trial court erred in invalidating the special term of the memorandum of understanding restricting access to designated portions of former Governor Dean‘s official correspondence in the state archives. Our conclusion renders it unnecessary to address the State‘s remaining claims concerning the proper allocation of staff costs for the creation of a document index under the PRA.
Reversed.
¶ 20. Dooley, J., concurring. I find this a very close case, but I am ultimately persuaded by the history and the legislative history to vote for the result reached by the majority. My unease with the decision, however, is caused by the loose and vague drafting of the statutes upon which we are relying, compounded by the difficulty in responding under the Public Records Act to a request for 550,000 to 600,000 pages of records. I believe the Legislature should act to correct the deficiencies in the State Archives Act and the Public Records Act, and write to express my concerns.
¶ 21. The statute on which our decision relies permits “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.”
¶ 22. Nonetheless, the statutory language remains vague and gives little guidance as to what boundaries, if any, this or another court should give to such terms. The records sought by plaintiff are the “property of the state,” and the outgoing Governor is required to make “an itemized list” of the records and deposit them with the Secretary of State.
¶ 23. Further, nothing in the statute suggests that there is any limit on the “special terms” that are imposed. The majority suggests that a limit might be found in the words “restricting their use,” apparently on the theory that a prohibition is not a restriction.
¶ 24. Nor does the statutory language require a “special term” to implement exceptions to public access under the Public Records Act. In this case, Governor Dean has claimed that the records withheld from public access fall within executive privilege, but nothing in the language of
¶ 25. Finally, while it is tempting to see this dispute as unusual, even unique, the ramifications of our decision are not. The State Archives Act applies to any archival records, defined broadly as public records “which have continuing legal, administrative, or historic value.”
¶ 26. There are equally serious deficiencies in the coverage of the Public Records Act. After this decision regarding the State Archives Act, the records requester can avoid possible future access restrictions by simply making a public access request while the Governor is still in office. Given the nature of campaigns for national office, it was apparent at the end of Governor Dean‘s term that he would campaign for national office, and the request we are dealing with was initiated by a simple letter. See Herald Ass‘n, Inc. v. Dean, 174 Vt. 350, 351, 816 A.2d 469, 471 (2002) (press sought Governor‘s travel schedule of trips “related to his bid for the United States presidency” before he left office). A future letter requesting access must only be initiated before the Governor, or another figure, has the ability to utilize the “special terms” provision in the State Archives Act.
¶ 27. We are dealing with between 550,000 and 600,000 pages of documents. The record doesn‘t tell us how many separate documents this represents, but it is obvious the number is staggering. The cost and time of cataloging, describing, and claiming exemption (or not) for these documents is equally staggering. The Deputy Secretary of State estimated that the staff time necessary to catalog and create a summary description of the sealed documents was over 4200 hours. This did not include the time necessary to create the assertion of privilege or exemption for each document or the time to litigate any resulting disputes.
¶ 28. The Public Records Act provides that even in exceptional cases a ruling on a record request must be made within twelve business days.
¶ 29. The State argued here that plaintiff, Judicial Watch, should be required to pay up-front the cost of the staff time to catalog and describe the records, a cost initially estimated to approach $115,000, and then to reimburse the state for the cost of presenting a written justification of each claim of executive privilege. The superior court denied this request because the statute allows the state to “charge and collect the cost of staff time associated with complying with a request for a copy of a public record.”
¶ 30. It is impossible to estimate the time and cost that would be expended to litigate claims of executive privilege and other public access exemptions in records of this type and number. Certainly, our decisions on executive privilege make clear that a complex judgment, affected by a number of factors, must be made on each record. See, e.g., Herald Ass‘n, Inc., 174 Vt. at 356-57, 816 A.2d at 475-76 (claim of executive privilege as to a document must be supported by an affidavit “based on ‘actual personal consideration’ by the responsible official” and the official must make the determination based on the information in the document so that partial disclosure is possible) (internal citations omitted); New England Coalition v. Office of the Governor, 164 Vt. 337, 343-45, 670 A.2d 815, 819-20 (1995) (same); Killington, Ltd. v. Lash, 153 Vt. 628, 637-41, 572 A.2d 1368, 1374-76 (1990) (same). Such decisions do not portend speedy adjudication. Yet,
(b) Except as to cases the court considers of greater importance, proceedings before the superior court, as authorized by this section, and appeals therefrom, take precedence on the docket over all cases and shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way.
¶ 31. I do not think the Legislature has come to grips with a record request of this magnitude. The time limits in the statute are wholly unrealistic for a request of this type, and however we might have ruled on the dispute over funding to comply with the statutory mandate, we would have been extrapolating from the statutory language to a situation not clearly covered by the statute.
¶ 32. It would be easy for us to say that the circumstances that created this dispute are unique and are not likely to recur once we announce this decision. I think such a reaction would be shortsighted and overly optimistic. Indeed, the exposure from this controversy may make future requests and cases more likely. While I agree with the majority decision based on the statutes we are required to implement, I don‘t think that the answers in future cases are predictable based on the current state of these statutes. I urge the Legislature to review and clarify them so we have a clear road map for the future.