Professional Nurses Service, Inc. v. Smith, No. 732 -12-04 Wncv (Katz, J.,

July 14, 2005)

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STATE OF VERMONT SUPERIOR COURT Washington County, ss.: Docket No.732-12-04 Wncv

PROFESSIONAL NURSES SERVICE, INC.,

v.

CHARLES SMITH

ENTRY

This is a public records access case, filed after the Vermont Department of Aging and Disabilities—and the Secret ary of the Agency of Human Services on appeal—partially denied an access to public records request by Plaintiff Professional Nurse Service, In c.

Plaintiff made an extensive public records request to the Department believing that the requested documents might aid it s application for a

“certificate of need” with the Commissioner of Bank ing, Insurance, Securities, and Health Care. The Department provid ed access to all requested documents but two: each is a two-sided si ngle-page memorandum from Patrick Flood, Commissioner of the Department, to Charles Smith, Secretary of the Agency. Claiming t hat each memorandum consists of frank, deliberative policy discussion, the State denied access to2

these documents citing the executive and the delibe rative process privileges.

The Access to Public Records Act, 1 V.S.A. §§ 315– 320, explicitly incorporates common law privileges, id . § 317(c)(4). A privilege recognized under § 317(c)(4) may justify the denial of access to a requested public record. Vermont first recognized the doctri ne of executive privilege

in Killington, Ltd. v. Lash , 153 Vt. 628, 636–37 (1990). The Lash Court made clear that, while the term “executive” has bee n used broadly by some courts to refer to privileges extending beyond the actual “chief executive,” in Vermont, for purposes of the privilege, “executi ve” means “governor.”

See id . at 632 n.3; see also New England Coalition v. Office of Governor

, 164 Vt. 337, 340-42 (1995) (distinguishing executiv e privilege from the more broadly applicable deliberative process privil ege and FOIA exception 5). Because the disputed memoranda in this case ar e unrelated to the governor, we agree with Plaintiff that the executiv e privilege, as recognized in Vermont, does not apply.

The State maintains, however, that the deliberativ e process privilege, which is similar to the executive privilege but app lies to communications between government officials other than the governo r, applies to these documents and should be recognized under 1 V.S.A. § 317(c)(4). The Vermont Supreme Court has never addressed the recog nition of the deliberative process privilege.

Generally, the deliberative process privilege all ows the government (other than the chief executive) to withhold from p ublic access information of an advisory or deliberative nature that relates to the governmental decision or policy-making process. In re Sealed Case , 121 F.3d 729, 737 (D.C. Cir. 1997); see generally Russell L. Weaver a nd James T.R. Jones, The Deliberative Process Privilege, 54 Mo. L. Rev. 279 (1989) (discussing substantive and procedural requirements of the priv ilege). The privilege’s ultimate purpose “‘is to prevent injury to the qual ity of agency decisions’ by allowing government officials freedom to debate alternative approaches in private.” In re Sealed Case , 121 F.3d at 737 (quoting NLRB v. Sears,3

Roebuck & Co. , 421 U.S. 132, 151 (1975)). It was first adopted overtly by

a federal court in Kaiser Aluminum & Chemical Corp. v. United States , 157 F.Supp. 939 (Ct. Cl. 1958), but its common law root s long predate that

case. For a detailed discussion of the common law origins and evolution of the doctrine, see Gerald Wetlaufer, An Objection to the General Deliberative Privilege, 65 Ind. L.J. 845, 856–82 (1 990). Since Kaiser , “the question of whether there ought to be a privilege h as received only the most perfunctory and stylized attention. All the seriou s energies of the [federal] courts have, instead, gone into the development of rules related to the application of the privilege.” Wetlaufer, supra , at 875.

Though varying state laws have made state treatmen t of the privilege less consistent than federal treatment, numerous st ate courts have recognized it. See City of Colorado Springs v. White , 967 P.2d 1042, 1049 (Colo. 1998) (collecting cases). We are persuaded that the Vermont Supreme Court would recognize the privilege as well —not to venerate the privilege’s position in the common law but because its role in the effective administration of government is crucial. See gener ally id . (exhaustively analyzing and then recognizing the privilege in Col orado). We recall here that 1 V.S.A. § 317(c)(4) calls upon us to evaluate —and thus participate in—the common law, the evolving body of law derived from judicial

decisions.

The common law . . . is inarticulate until it is ex pressed in a judgment . . . . Where the common law governs, the judge, in what is now the forgotten past, decided the case in accordance with morality and custom and later judges follow[] his decision. They [do] not do so by construing the wo rds of his judgment. They look[] for the reason which had mad e him decide the case the way he did, the ratio descendi . . . .[,] the principle of the case.

Patrick Devlin, The Judge 177 (1979)); see also Hay v. Medical Ctr. Hosp.

, 145 Vt. 533, 542 (1985) (“It is the role of this Co urt to adapt the common law to the changing needs and conditions of the peo ple of this state . . . .”).4

Even if the privileges are not coextensive, the gov ernmental need for the deliberative process privilege—and the correspondin g public benefit—is just as compelling as that for the executive privil ege. “As objectionable as the image is of government conducted in secrecy’s d arkened chambers, it is hard to imagine a government functioning with no op portunity for private exchange among its ministers, with no moments of sp eculation, venturesome alternatives, or retractable words.” Killington, Ltd. , 153 Vt. at 637. This guiding insight, which motivates Vermont ’s executive privilege cases, applies with equal vigor to the more widely applicable deliberative process privilege.

Plaintiff opposes the recognition of the privilege , arguing that it

would eviscerate the Access to Public Records Act a nd its strong opengovernment policy: the government, presumably, woul d render the Act hollow by always claiming the privilege. Acknowled ging that the Act strongly favors open government, we note that there are no fewer than 35 specific statutory exceptions to public access, of which common law privileges are a part of but one. Though we constr ue the exceptions strictly in favor of access, Springfield Terminal Railway Co. v. Agency of Trans p. , 174 Vt. 341, 345 (2002), still, the implied suggest ion that the Act makes all or nearly all public records accessible is more rhe toric than reality. The Act and how we apply it reveal a tension with which we should struggle: between openness at one end, and privacy and effect ive governance at the other. We do not by recognizing the privilege add a new exception that will swallow the rule; we merely apply recognized l aw as part of an exception that the Legislature itself specifically created: 1 V.S.A. § 317(c)(4).

The Legislature also specifically created an excep tion analogous to the deliberative process privilege for political su bdivisions of the state, § 317(c)(17), exempting from access “records of inter departmental and intradepartmental communications in any . . . polit ical subdivision of the state to the extent that they cover other than prim arily factual materials and are preliminary to any determination of policy . . . .” Interpreting the Act to exempt such information when it arises in the small er and more intimate5

political subdivisions of the state, where policy c onsideration is far more likely to be oral, but not when it arises in the la rger agencies of the state, where written communication is far more likely to o ccur, would be

irrational. See Rowell v. Tunbridge , 118 Vt. 23, 27-28 (1953) (irrational statutory interpretations should be avoided where p ossible).

Plaintiff’s argument in opposition to the privileg e, however, is really

more about its breadth—the extent to which it shoul d be limited and how it should be applied—than whether it should be recogni zed. The privilege does not apply where its purposes are not served. White , 967 P.2d at 1051. The government has the initial burden of showing th at the requested information genuinely is part of a predecisional an d deliberative process.

Id . at 1053. Even where it applies, like the executi ve privilege, Killington,

Ltd. , 153 Vt. at 637, the deliberative process privileg e is qualified, White

, 967 P.2d at 1051. A party seeking the information may overcome the privilege with a sufficient showing of need. The e xception does not risk swallowing the rule.

We turn then to the facts of this case. The State has discharged its initial burden by submitting a Vaughn index, which describes the two requested documents, and affidavits from both the a uthor and recipient of

the memoranda. Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973); see generally Weaver & Jones, supra, at 300-12 (describ ing the Vaughn index and affidavit requirements). These submissions rev eal that each short memorandum was written by Commissioner Flood, a sub ordinate, to provide frank opinions and advice exclusively to Se cretary Smith, his superior, directly relating to the Secretary’s cont emplations on the general topic of Vermont’s home health system, and, at leas t in part, on the more specific topic of a certificate of need, policy mat ters plainly within the scope of the roles of the Commissioner and the Secr etary.

While the State’s Vaughn index is not particularly detailed, it is

sufficient in the circumstances of this case. The general subject matter of the memoranda is advisory (deliberative) in nature, and was provided to the Secretary for his use in contemplating matters of p olicy. Both the6

Commissioner and the Secretary treated the memorand a as a confidential predecisional policy discussion. As the memoranda may relate to Plaintiff’s application for a certificate of need b efore BISHCA, we note that the Secretary eventually made a specific “decision, ” which appears in a letter—to which Plaintiff has access—from Secretary Smith to BISHCA Commissioner Crowley. See Defendant’s Motion for S ummary Judgment at 9 (filed Jan. 31, 2005). The Vaughn index does not more specifically detail the decisions the Secretary was considering when he received the memoranda, but an internal policy discussion need n ot even ripen into a specific decision for the privilege to apply. See White , 967 P.2d at 1051 n.8. It is the nature of the governmental process at work, not its result, that matters. We reject Plaintiff’s claim that the acco mpanying affidavits are not based on the personal knowledge of the affiants . The affidavits are signed by the Commissioner and Secretary, the autho r and recipient, respectively, of the memoranda, after all.

We see no reason in these circumstances to review the memoranda in camera, or to order the State to supplement the index. See 1 V.S.A. § 319(a) (the court may, but is not required, to do i n camera review). We

conclude that the State has shown that the delibera tive process privilege supports its decision to deny access to the two req uested memoranda.

Plaintiff argues that it has a need for the docume nts that outweighs the State’s interest in maintaining their confident iality, namely, that they may contain some information that could in some way aid its certificate of need application. That bare allegation alone, howe ver, is not a sufficient showing of need. Plaintiff does not explain why kn owing the Commissioner’s advice—the options the Secretary ent ertained (the memoranda)—is important, particularly considering t hat it knows the option (the letter) that the Secretary later chose. Ordinarily, it is the “postdecisional” information, the chosen alternativ e, that “the public has a strong interest in” as that becomes the “‘working l aw’ of the agency.”
White , 967 P.2d at 1051 (quoting Sears , 421 U.S. at 152). Nor does Plaintiff attempt any showing of governmental wrong doing or improper motives that might suggest an inappropriate applica tion of the privilege.7

The State’s motion for summary judgment is granted . The State’s

motion to dismiss is denied as moot. Plaintiff’s m otion for summary judgment is denied.

Dated at Montpelier, Vermont, _____________________ _____, 20___.

__________________________ Judge