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

July 14, 2005) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

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 Secretary of the Agency of 

Human Services on appeal—partially denied an access to public records 

request by Plaintiff Professional Nurse Service, Inc. 

 Plaintiff made an extensive public records request to the Department 

believing that the requested documents might aid its application for a 

“certificate of need” with the Commissioner of Banking, Insurance, 

Securities, and Health Care. The Department provided access to all 

requested documents but two: each is a two-sided single-page 

memorandum from Patrick Flood, Commissioner of the Department, to 

Charles Smith, Secretary of the Agency. Claiming that each memorandum 

consists of frank, deliberative policy discussion, the State denied access to 
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these documents citing the executive and the deliberative 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 doctrine 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 been used broadly by some 

courts to refer to privileges extending beyond the actual “chief executive,” 

in Vermont, for purposes of the privilege, “executive” means “governor.” 

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

164 Vt. 337, 340-42 (1995) (distinguishing executive privilege from the 

more broadly applicable deliberative process privilege and FOIA exception 

5). Because the disputed memoranda in this case are unrelated to the 

governor, we agree with Plaintiff that the executive privilege, as recognized 

in Vermont, does not apply. 

 The State maintains, however, that the deliberative process privilege, 

which is similar to the executive privilege but applies to communications 

between government officials other than the governor, applies to these 

documents and should be recognized under 1 V.S.A. § 317(c)(4). The 

Vermont Supreme Court has never addressed the recognition of the 

deliberative process privilege. 

 Generally, the deliberative process privilege allows the government 

(other than the chief executive) to withhold from public 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 and James T.R. Jones, 

The Deliberative Process Privilege, 54 Mo. L. Rev. 279 (1989) (discussing 

substantive and procedural requirements of the privilege). The privilege’s 

ultimate purpose “‘is to prevent injury to the quality 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, 
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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 roots 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 (1990). Since Kaiser, “the 

question of whether there ought to be a privilege has received only the most 

perfunctory and stylized attention. All the serious 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 treatment of the privilege 

less consistent than federal treatment, numerous state 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 generally id. (exhaustively 

analyzing and then recognizing the privilege in Colorado). 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 expressed 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 words of his 

judgment. They look[] for the reason which had made 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 Court to adapt the common 

law to the changing needs and conditions of the people of this state . . . .”). 
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Even if the privileges are not coextensive, the governmental need for the 

deliberative process privilege—and the corresponding public benefit—is 

just as compelling as that for the executive privilege. “As objectionable as 

the image is of government conducted in secrecy’s darkened chambers, it is 

hard to imagine a government functioning with no opportunity for private 

exchange among its ministers, with no moments of speculation, 

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 and its strong opengovernment policy: the government, presumably, would render the Act 

hollow by always claiming the privilege. Acknowledging 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 construe the exceptions strictly 

in favor of access, Springfield Terminal Railway Co. v. Agency of Transp., 

174 Vt. 341, 345 (2002), still, the implied suggestion that the Act makes all 

or nearly all public records accessible is more rhetoric 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 effective governance at the 

other. We do not by recognizing the privilege add a new exception that 

will swallow the rule; we merely apply recognized law as part of an 

exception that the Legislature itself specifically created: 1 V.S.A. § 

317(c)(4). 

 The Legislature also specifically created an exception analogous to 

the deliberative process privilege for political subdivisions of the state, § 

317(c)(17), exempting from access “records of interdepartmental and 

intradepartmental communications in any . . . political subdivision of the 

state to the extent that they cover other than primarily factual materials and 

are preliminary to any determination of policy . . . .” Interpreting the Act to 

exempt such information when it arises in the smaller and more intimate 
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political subdivisions of the state, where policy consideration is far more 

likely to be oral, but not when it arises in the larger agencies of the state, 

where written communication is far more likely to occur, would be 

irrational. See Rowell v. Tunbridge, 118 Vt. 23, 27-28 (1953) (irrational 

statutory interpretations should be avoided where possible). 

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

more about its breadth—the extent to which it should be limited and how it 

should be applied—than whether it should be recognized. 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 that the requested 

information genuinely is part of a predecisional and deliberative process. 

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

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

967 P.2d at 1051. A party seeking the information may overcome the 

privilege with a sufficient showing of need. The exception 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 author and recipient of 

the memoranda. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); see 

generally Weaver & Jones, supra, at 300-12 (describing the Vaughn index 

and affidavit requirements). These submissions reveal that each short 

memorandum was written by Commissioner Flood, a subordinate, to 

provide frank opinions and advice exclusively to Secretary Smith, his 

superior, directly relating to the Secretary’s contemplations on the general 

topic of Vermont’s home health system, and, at least in part, on the more 

specific topic of a certificate of need, policy matters plainly within the 

scope of the roles of the Commissioner and the Secretary. 

 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 policy. Both the 
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Commissioner and the Secretary treated the memoranda as a confidential 

predecisional policy discussion. As the memoranda may relate to 

Plaintiff’s application for a certificate of need before 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 Summary 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 not 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 accompanying affidavits are 

not based on the personal knowledge of the affiants. The affidavits are 

signed by the Commissioner and Secretary, the author 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 in camera review). We 

conclude that the State has shown that the deliberative process privilege 

supports its decision to deny access to the two requested memoranda. 

 Plaintiff argues that it has a need for the documents that outweighs 

the State’s interest in maintaining their confidentiality, namely, that they 

may contain some information that could in some way aid its certificate of 

need application. That bare allegation alone, however, is not a sufficient 

showing of need. Plaintiff does not explain why knowing the 

Commissioner’s advice—the options the Secretary entertained (the 

memoranda)—is important, particularly considering that it knows the 

option (the letter) that the Secretary later chose. Ordinarily, it is the 

“postdecisional” information, the chosen alternative, that “the public has a 

strong interest in” as that becomes the “‘working law’ of the agency.” 

White, 967 P.2d at 1051 (quoting Sears, 421 U.S. at 152). Nor does 

Plaintiff attempt any showing of governmental wrongdoing or improper 

motives that might suggest an inappropriate application of the privilege. 
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 The State’s motion for summary judgment is granted. The State’s 

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

judgment is denied. 

Dated at Montpelier, Vermont, __________________________, 20___. 

__________________________ 

Judge