¶ 20. 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.” 3 V.S.A. § 117(g)(9). The majority holds that the restrictions on access contained in the memorandum of understanding between the former Governor, the Secretary of State, and the Attorney General are “special terms” within the meaning of the statute.
¶ 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. 3 V.S.A. § 4(a). Nothing in that statute states that the outgoing Governor can condition or restrict public access to these state records. See id. Moreover, although in this case Governor Dean and the Secretary of State had an agreement on public access with respect to the records in question, nothing in the words “special terms” suggests an agreement is necessary to restrict access. 3 Y.S.A. § 117(g)(9). Nor *225does the statutory language clarify who can or cannot unilaterally set these terms in the absence of an agreement. Id.
¶ 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. 3 V.S.A. § 117(g)(9). But under this theory, a long closure period — for example, for fifty years — would be a restriction and not a prohibition. Moreover,, the terminology of this phrase “restricting their use” is itself an example of loose drafting because it speaks of restriction on “use” and not “access.” Id. In fact, it was the wording of this phrase that led the trial judge to rule that 3 V.S.A. § 117(g)(9) does not authorize a. restriction on “access” but only a restriction on “use.”
¶ 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 3 V.S.A. § 117(g)(9) actually requires any documents be subject to executive privilege, or any other special requirement, before special terms can be made to restrict their use. In this case, although Governor Dean claims executive privilege, we have no way of determining the validity of that claim because no review is possible. Certainly, the quantity of records being withheld suggests a great risk that the claim of executive privilege is overbroad. Regardless, even if a record requester could identify a particular record with specificity, and prove an executive privilege claim to be invalid, the agreement would nonetheless continue to prevent public access to the record during the ten-year period because the statutory language does not require that executive privilege actually be applicable. My main point is, however, that under the current statute the Governor could delay access merely to avoid embarrassment, not because he has a legitimate public records exception claim, and that delay would still be valid under the statutory terms.
¶ 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.” Id. § 117(a)(2). Under this, definition, almost any public record is an archival record, whether or not the Governor had anything to do with *226it.5 Thus, under the statute as we have interpreted it, someone — it remains uncertain who that someone is — might be able to deny public access to any record if it found its way into the division of Vermont state archives with a special term restricting access.
¶ 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. *2271 V.S.A. § 318(a)(5). Obviously, a bulk records request of the magnitude involved here cannot be answered completely and accurately within the statutory time limit, even if the Governor and his or her entire staff did nothing but examine, catalog, and review records between the time of request and the date of decision.
¶ 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.” 1 V.S.A. § 316(c). The court held that the statute did not allow the state to charge staff time to resist public 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.”
¶ 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, 1 V.S.A. § 319(b) regarding public record access provides:
(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.
*228Further, as a case such as this will generally arise because a requester seeks to use disclosed records as soon as possible in the political debate, only a speedy resolution of the issue is acceptable.
¶ 31.1 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.
In spite of the broad definition, most public records end up in the custody of the Commissioner of Buildings and General Services pursuant to chapter 11 of Title 22, 22 V.S.A. §§ 451-457. For example, the vast majority of judiciary case records have gone to the Commissioner and not to the Secretary of State, although they have continuing “legal” value. See Vermont Judicial Records Program: Vermont Archival Judicial Records (ninety-six boxes of Vermont judicial records are archived with the Secretary of State, while 13,500 cubic feet of judicial records are stored at the Vermont Records Center operated by the Commissioner of Buildings and General Services), available at http://vermont-archives.org/recordsArrp/reports/vteomp.htm (last visited Oct. 31, 2005). Presumably, the Public Records Act and, in the case of the judiciary, the Rules for Public Access to Court Records, governs public access to these records. But, even this conclusion is debatable under the vague statutes.