Herald Ass'n, Inc. v. Dean

Skoglund, J.,

concurring in part, dissenting in part. The fundamental question presented by this appeal is whether the public interest in disclosure of the Governor’s daily calendars outweighs the chief executive’s interest in maintaining the confidentiality of those documents. The Court declines to answer this question in today’s decision. Instead the majority holds that information in the Governor’s calendars showing “meetings or events unrelated to executive policymaking or deliberations, including meetings and events related to Governor Dean’s consideration of a potential bid for President of the United States,” 174 Vt. at 357,816 A.2d at 475, is not sufficiently related to gubernatorial policymaking or deliberations to qualify for confidential treatment under the executive privilege and must be disclosed.

I concur with this general conclusion. However, the Court then sends the case back to the trial court for another look at those portions of the Governor’s scheduling calendar that list meetings or events related to the Governor’s deliberations and policy making, including meetings with the Governor’s staff, members of his cabinet, other Vermont state government officials, and other individuals because “[t]he Governor’s general claim of executive privilege lacks the specificity necessary to determine whether the remaining calendar entries are exempt from public disclosure.” Id. at 358, 816 A.2d at 476.

I respectfully submit that the trial court had affidavits before it that established a prima facie case for executive privilege. I submit further that the rationale set forth in those affidavits is fully applicable to those portions of the Governor’s calendar that the Court has remanded for *362further consideration, and that the affidavits are sufficiently specific to meet the chief executive’s burden. I would decide the issue presented.

On the record before us, I would hold that the trial court erred in concluding that the calendars contain only factual information and that “communications to the governor that are primarily factual are not protected from disclosure by executive privilege.” As explained more fully below, the fact/opinion dichotomy is contrary to the decisional law governing this area, contrary to the record in this case, and contrary to common sense and political reality. A remand without deciding whether the trial court’s approach was sound is inefficient. For these reasons, I respectfully dissent.

First, let me state the obvious. Information on the Governor’s activities, appearances, and events in the national political arena are currently available to the press and all members of the public on the Governor’s action committee website — Fund for a Healthy America. Second, I agree with the Court’s conclusion that the Governor’s schedule is a “public record” under the Public Records Act, and that the Governor is subject to the Act.

These preliminary matters aside, it is important to emphasize that, while new to this Court, the fundamental question presented — whether executive privilege may apply to the Governor’s calendars — is governed by principles that are well settled. We have recognized that the doctrine of executive privilege has both “constitutional and common-law roots.” Killington, Ltd. v. Lash, 158 Vt. 628, 636, 572 A.2d 1368, 1374 (1990). At both the state and federal levels, the doctrine is inextricably linked to the principle of separation of powers; the executive privilege “ ‘protects and insulates the sensitive decisional and consultative responsibilities of the Governor which can only be discharged freely and effectively under a mantle of privacy and security.’ ” Id. (quoting Nero v. Hyland, 386 A.2d 846, 853 (N. J. 1978)). Indeed, we have held that the “need for honest and open communication between the chief executive and advisors” distinguishes the Governor from all other executive agencies, which — unlike the Governor — may be required to demonstrate that withheld documents are both “pre-decisional” and related to a particular decision. New England Coalition for Energy Efficiency & Environment v. Office of Governor, 164 Vt. 337, 342, 670 A.2d 815, 818 (1995). “The decision-making process of the chief executive,” in contrast, does not lend itself to such arbitrary “linedrawing.” Id. at 341-42, 670 A.2d at 818.

As numerous courts, including our own, have noted, the privilege protects “‘the deliberative process of government and not just deliberative material.’ ” Times Mirror Co. v. Superior Court, 813 P.2d *363240, 250 (Cal. 1991) (quoting Mead Data Cent., Inc. v. United States Dep’t of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977)) (emphasis in original). The interest protected ultimately is not the Governor’s right to keep secrets, but the people’s right to a fully informed and effective government. “By promoting the effectiveness of the governing process, the privilege protects the welfare of the public, not the government official.” New England Coalition, 164 Vt. at 345, 670 A.2d at 820.

The separation-of-powers principle at the heart of the executive privilege informs the procedure for resolving disputes, as well. To invoke the privilege, the executive must file a supporting affidavit. The affidavit must be based on “ ‘actual personal consideration’ ” by the responsible official, specifically identify the documents for which the privilege is claimed, and explain why the documents are protected by the privilege. Id. at 344, 670 A.2d at 820 (quoting United States v. Reynolds, 345 U.S. 1, 7-8 (1953)).

Such an affidavit is sufficient to make out a prima facie claim. Once that is established, “the requester has the burden of providing reasons why the need for the information outweighs the interest in confidentiality.” Killington, Ltd., 153 Vt. at 639, 572 A.2d at 1375. This procedure thus “allows the executive branch to self-certify a basis for executive privilege,” while accommodating “appropriate [judicial] review at sensitive junctures in the process.” Id. at 641, 572 A.2d at 1376.

The Governor has fully complied with these requirements. In response to the petitioners’ suit for disclosure of his daily and weekly schedules, the Governor submitted affidavits by two high level policy advisors identifying the documents in question, their contents, the manner in which they are produced, the specific persons to whom they are distributed, and the reasons for their confidential nature under the executive privilege. The trial court nevertheless ruled in favor of petitioners, finding that the calendars contained no express advice or opinions, and summarily concluding therefore that the privilege did not apply.

It is commonplace to observe at the threshold of such cases that the executive-privilege doctrine protects materials connected to deliberations and policy advice, not purely factual information. This statement generally marks the beginning of a court’s discussion, however, not the end of analysis. As noted in Hamilton v. Verdow, 414 A.2d 914, 925-26 (Md. 1980) (emphasis added) (internal citations omitted):

However, material cannot always “easily be separated into fact finding and decision making categories.” Moreover, some factual material is entitled to a degree of protection under the privilege, although not to the same extent as opinions and *364recommendations. This would include facts obtained upon promises or understandings- of confidentiality, investigative facts underlying and intertwined with opinions and advice, and facts the disclosure of which would impinge on the deliberative process.

We are not the first court to consider whether calendars, schedules, or similar materials setting forth the time, place, subject matter, or identity of persons involved in private discussions with the Governor reveal “facts the disclosure of which would impinge on the deliberative process.” Most other courts have found that disclosure of such documents would substantially impair the Governor’s deliberative and decisionmaking functions, and have concluded that a generalized public interest in the Governor’s activities is insufficient to overcome the claim of executive privilege. See Times Mirror Co., 813 P.2d at 251-53 (concluding that disclosure of Governor’s calendars and schedules would reveal the “substance or direction of the Governor’s judgment and mental processes,” and that “the public interest in nondisclosure clearly outweighs the public interest in disclosure”); Courier-Journal v. Jones, 895 S.W.2d 6, 10 (Ky. Ct. App. 1995) (relying on “the logic of Times Mirror” to hold that Governor’s daily appointment ledgers are exempt from disclosure under Open Records Act); Taylor v. Worrell Enters., Inc., 409 S.E.2d 136, 138 (Va. 1991) (plurality opinion holding that disclosure of Governor’s phone records would have undue “chilling effect” on Governor’s use of telephone to confer with others). But cf. Office of Governor v. Washington Post Co., 759 A.2d 249, 271-73 (Md. 2000) (Governor not entitled to blanket claim of executive privilege over telephone records and schedules, but may establish on remand that disclosure of specific information would interfere with deliberative process.).

In so holding, the courts have rejected the artificial fact/substance dichotomy that formed the basis of the trial court’s decision. Instead the critical inquiry, as the California Supreme Court observed, is “less on the nature of the records sought and more on the effect of the records’ release.” Times Mirror, 813 P.2d at 250 (emphasis added). The key question is whether disclosure “ “would expose an agency’s decisionmaking process in such away as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform *365its functions.’ ” Id. (quoting Dudman Communications Corp. v. Dep’t of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)).*

Applying this test, the courts have concluded that factual data identifying the time, place, and identity of participants in discussions with the Governor “is the functional equivalent of revealing the substance or direction of the Governor’s judgment and mental processes; such information would indicate which interests or individuals he deemed to be of significance with respect to critical issues of the moment. The intrusion into the deliberative process is patent.” Times Mirror, 813 P.2d at 251. The court’s conclusion in Courier-Journal was the same, noting that “while the raw material in the Governor’s appointment calendars and schedules is factual, its essence is deliberative.” 895 S.W.2d at 8 (quoting without citation Times Mirror, 813 P.2d at 251-52); see also Taylor, 409 S.E.2d at 138-39 (rejecting assertion that telephone data from Governor’s office were “devoid of substantive information,” and finding on the contrary that they had “intrinsic significance”); Cofield v. City of LaGrange, 913 F. Supp. 608, 615 (D.D.C. 1996) (observing that agency’s “act of compiling information” may reflect “exercise of judgment by agency” requiring protection of purely factual material).

Compelled disclosure of such information, the courts have also concluded, would ultimately inhibit the flow of information to the Governor. “If the law required disclosure of a private meeting between the Governor and a politically unpopular or controversial group, that meeting might never occur.” Times Mirror, 813 P.2d at 251; accord Courier- Journal, 895 S.W.2d at 8 (quoting Times Mirror). Even routine meetings between the Governor and other lawmakers, lobbyists or citizens groups might be inhibited if the meetings wereregularlyrevealed to the public. As the court in Taylor stated: “A lack of candor or an unwillingness to participate in the decision making process is as likely to flow from the compelled disclosure of the fact of consultation as from the disclosure of the content of the consultation.” 409 S.E.2d at 139 (emphasis added); see also Cofield, 913 F. Supp. at 617 (holding that agency documents with “internal routing notations” were exempt from disclosure *366“because such notations may reasonably lead to identification of those individuals involved in the decisionmaking process, a result that could chill open. and frank discussions within the agency, undermining the deliberative process”).

The record in this case underscores the soundness of the reasoning of the courts cited above. In her affidavit, Kathleen O’Connor, a principal advisor to the Governor, described the complex process of creating the Governor’s daily schedule and how it ultimately reflects the relative importance of the various items included. Meetings with local, state, and federal legislators, discussions with advisors, interviews with potential appointees, and private conversations with individuals on policy issues are ■ all included in the schedule. These meetings, O’Connor notes, provide the Governor with “a variety of different viewpoints, including viewpoints which are unpopular.” O’Connor goes on to explain that in her experience many private meetings “without the glare of media attention” are essential for the Governor to obtain such viewpoints and to formulate policy, and she cautions that the flow of information to the Governor ■would be tangibly inhibited if the schedules were disclosed. Kathleen Hoyt, a public servant .with nearly thirty years of experience, and the current Secretary of Administration, stated unequivocally in her affidavit that “public disclosure of the governor’s daily schedule would compromise the governor’s ability to receive frank advice” and erode his ability to formulate policy.

Petitioners filed no affidavits or other evidentiary materials to rebut these statements grounded in decades of political experience. Whether the affidavits set forth undisputed “facts” entitled to acceptance on summary judgment, or mere “opinions” as petitioners claim, they are certainly informed reflections of the reality of public-policy decisionmaking deserving of considerable weight, as courts elsewhere have found. Disclosure of the existence of such meetings, their time and place, subject matter, and the identity of the participants would, in fact, provide a window into the substance or direction of the Governor’s judgment and mental processes, and exert a chilling effect on the willingness of persons, particularly those outside of government, to participate in such meetings.

This case presents the separation-of-powers principle underlying the executive privilege doctrine in its starkest form. The Governor has asserted the privilege over his own daily schedule of activities, including various private meetings with advisors and individuals both in and out of government, which detail the subject of the meetings, their time and location, and the identity of the participants. He contends that although the documents in question do not contain the substance of those *367discussions, they nevertheless reflect an exercise of judgment offering a window onto the deliberative processes of his office, and require protection to preserve the full opportunity for frank expression and discussion at the executive level.

I do not suggest that judicial respect for the integrity of the executive branch requires that we simply defer to the Governor’s view on the scope of the executive privilege. I do believe, however, that a careful and balanced review of the pertinent cases and arguments leads to the conclusion that although — in the words of Times Mirror — “the raw material in the Governor’s appointment calendara and schedules is factual, its essence is deliberative.” 813 P.2d at 251-52. Accordingly, I would hold that the Governor is entitled to claim executive privilege over his daily and weekly schedules.

It remains, therefore, to answer the essential question posed by this appeal: whether the asserted interests in disclosure of the Governor’s schedules outweigh the claim of executive privilege. To overcome the presumption of confidentiality, petitioners here argue that they, and the public, are entitled to the Governor’s daily schedules “based upon a need to determine how Governor Dean is expending public funds and resources, and how he is allocating his time and energies between his official duties as Governor of the State of Vermont and his political aspirations” to run for President of the United States. The schedules will reveal “whether his efforts to secure and enhance his political future are taking precedence over his daily duties and responsibilities as Governor of the State of Vermont.”

I have no quarrel with the Court’s conclusion that meetings and events specifically related to the Governor’s consideration of a potential presidential race are sufficiently divorced from the executive decisionmaking process as to fall outside the scope of the privilege, although I note that such information is generally available elsewhere. Petitioners did not, however, limit their request to such specific information, but requested disclosure of all of the calendars in their entirety, so as to compare the time spent on the Governor’s national campaign with his time spent governing Vermont. It is here that I part company with petitioners, and the Court.

No extensive discussion is necessary to establish that we are a society dedicated to the concept of open government. Whether our elected officials are diligently attending to their public duties is a legitimate source of concern and a valid argument for disclosure of records kept in the course of agency business. The real issue is not whether petitioners’ *368arguments have substance, but whether they are sufficient to overcome the Governor’s assertion of executive privilege in this case.

A similar argument was raised by the petitioners in Times Mirror, who sought the Governor of California’s schedules to determine whether he was diligently attending to his official duties. In concluding that this general interest was insufficient to overcome the Governor’s claim of executive privilege, the court made the following observation, which I believe applies with equal force here:

The answer to [petitioners’] arguments is not that they lack substance, but pragmatism The deliberative process privilege is grounded in the unromantic reality of politics; it rests on the understanding that if the public and the Governor were entitled to precisely the same information, neither would likely receive it. Politics is an ecumenical affair; it embraces persons and groups of every conceivable interest: public and private; popular and unpopular; Republican and Democratic and every partisan stripe in between; left, right and center. To disclose every private meeting or association of the Governor and expect the decisionmaking process to function effectively, is to deny human nature and contrary to common sense and experience.

813 P.2d at 252 (emphasis in original).

The cogency of this response to petitioners’ claim is — in my view— self-evident, and leads inescapably to the conclusion that, without more, a general desire to determine how the chief executive’s time has been spent is insufficient to overcome the Governor’s interest in maintaining the confidentiality of his or her daily schedules. It is possible, of course, simply to rej ect the premise that potential participants in the political process will be inhibited by the prospect of publicity, or to accept it but insist that they be made of sterner stuff. To assert a knowledge superior to that of experienced officials and other courts that have addressed this issue, however, requires a degree of certainty than I am unwilling to claim.

Moreover, we need not conclude that the Governor’s schedules must remain inviolate under all circumstances. A future case, based on a more compelling showing of need — evidence, for example, of corruption, misuse of public funds, or gross dereliction of duty — could lead to a different conclusion. I would simply hold that on the record before us the presumption of confidentiality has not been overcome. Therefore, I would reverse the judgment.

Although it is not necessary, in my view, to address the Governor’s subsidiary claim based on the security exception under the Public Records *369Act, the issue compels comment. The Governor argued in his pleadings that the schedules were exempt from disclosure under § 317(c)(25), which allows an agency to withhold “passwords, access codes, user identification, security procedures and similar information the disclosure of which would threaten the safety of persons or the security of public property.” He filed an affidavit by the commander of his security detail, a state police lieutenant and a law enforcement officer with twenty years’ experience, attesting to the fact that disclosure of the detailed information in the schedules regarding the Governor’s daily itinerary would “pose a substantial security risk to the Governor and those with whom he interacts.” Petitioners disputed the claim on the ground that it was unduly speculative, and the trial court agreed.

Security is a malleable concept. Patterns of activity such as travel itineraries, hotel accommodations, means of transportation, times of arrival and departure, and persons traveling with the Governor may reflect decisions relating not only to the Governor’s convenience, but to his security, as well. Thus, the detailed schedules themselves constitute a form of security. They are treated as such by the Governor’s office, which maintains strict confidentiality in their distribution, and that security protocol should not be broken.

Even the one decision which declined to hold unequivocally for the Governor recognized that purely factual material contained in the Governor’s telephone records and appointment schedules might contain information from which substantive content could be inferred. See Office of Governor, 759 A.2d at 271-72. It held, however, that the Governor was not entitled to a “blanket claim of executive privilege” with respect to the materials sought and the burden-shifting presumption attendant thereto. Id. Instead it remanded to the trial court to allowthe Governor to make an evidentiary showing that specific factual information in the records sought “will interfere with the deliberative process in the Governor’s Office.” Id. at 273.