2012 VT 33


Rueger and Moyers v. Natural resources Board
and the District #9 Environmental Commission of the State of Vermont (2011-106)
 
2012
VT 33
 
[Filed
26-Apr-2012]
 
NOTICE:
This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 

2012 VT 33


No. 2011-106


Russell
  Rueger, Mary Ann Rueger
  and John Moyers


Supreme Court



On Appeal from


v.


Superior Court, Washington Unit,


 
Natural Resources
  Board and the District #9 Environmental Commission of the State of Vermont


December Term, 2011






Geoffrey
  W. Crawford, J.


James
A. Dumont, Bristol, for Plaintiffs-Appellants.
 
 William
H. Sorrell, Attorney General, and Megan J. Shafritz, Assistant
Attorney General, Montpelier, for Defendants-Appellees.
 
PRESENT:
Reiber, C.J., Dooley, Skoglund
and Burgess, JJ., and Kupersmith,
Supr. J, 
Specially
Assigned
 
 
¶
1.     REIBER, C.J.
Plaintiffs appeal from the trial court’s summary judgment order in favor of
defendants in this Access to Public Records Act case. The court concluded that
certain records held by defendants reflected the deliberations of an agency
acting in a quasi-judicial role and thus were exempt from disclosure under 1
V.S.A. § 317(c)(24). Plaintiffs argue that the court
erred in interpreting § 317(c)(24). We affirm.
¶
2.     The
court found the following facts undisputed. Plaintiffs are parties to a
contested Act 250 proceeding concerning a proposed gravel pit near their homes
in Bristol, Vermont. In February 2010, after many years of litigation before
the local zoning board, the District #9 Environmental Commission, and the
Environmental Court, the applicant filed an amended application with the
District #9 Commission. When plaintiffs sought to review the file in March
2010, they were advised that the matter had been transferred to the District #1
Commission. In a March 30, 2010 letter to prospective parties, the District #9
Chair indicated that on March 11, the District #9 Commission had requested
recusal pursuant to Act 250, Rule 18(B), and on March 18, the Chair of the
Vermont Natural Resources Board assigned the District #1 Commission to hear the
case. 
¶
3.     Plaintiffs
filed a public records request, seeking all communications and all notes or
records of communications that referred to the transfer or that caused the
transfer. The two Commissions and the Natural Resources Board produced some
documents in response to the request but declined to produce others. Defendants
asserted that the withheld documents, which consisted of email communications,
were exempt under 1 V.S.A. § 317(c)(24) because they
reflected the deliberations of an agency acting in a quasi-judicial role.1 
¶
4.     Plaintiffs
then sued defendants to compel disclosure under the Access to Public Records
Act (PRA). Defendants filed a motion to dismiss, which was later converted into
a motion for summary judgment. After conducting an in camera review, the court
agreed with defendants that the documents were exempt from disclosure under 1
V.S.A. § 317(c)(24). That exemption protects “records
of, or internal materials prepared for, the deliberations of any public agency
acting in a judicial or quasi-judicial capacity.” Id. The court found
that § 317(c)(24) was designed to ensure the integrity
of the decisionmaking process, ultimately for the
benefit of the public. It noted that the United States Supreme Court had long
recognized this principle and compared the administrative quasi-judicial
setting to the judicial branch setting. 
¶
5.     In
this case, the documents at issue were emails between Committee members and the
Committee’s counsel, all of which concerned the basis for District #9’s
decision to disqualify itself from hearing the application. The court found
that the District Commissions plainly acted in a quasi-judicial capacity as
they heard evidence and issued rulings in the manner of a court, and their
decisions were subject to review by the Environmental Court. Additionally, the
emails concerned an internal discussion about disqualification of members of
the tribunal, which was a familiar issue for judicial and quasi-judicial decisionmakers. Just as the internal records of a
Commission’s deliberations on the merits of an application were protected from
disclosure, the court reasoned, so too were the Commission’s deliberations on
the initial issue of whether its members should hear the case. The court found
that the exemption reached deliberations among the members of the “quasi-court”
as well as communications with the staff attorneys assigned to guide their
work. The court thus granted judgment to defendants. This appeal followed. 
¶
6.     On
appeal, plaintiffs challenge the court’s interpretation of § 317(c)(24). As detailed below, plaintiffs essentially argue that
internal discussions about recusal are not the type of quasi-judicial
deliberative material that the Legislature intended to exempt under § 317(c)(24). Our review is de novo, and we affirm the trial court’s
decision. Vt. Alliance of Nonprofit Orgs. v.
City of Burlington, 2004 VT 57, ¶ 5, 177 Vt. 47, 857 A.2d 305 (stating that
statutory interpretation is question of law warranting de novo review); Richart v. Jackson, 171 Vt. 94, 97, 758 A.2d
319, 321 (2000) (summary judgment appropriate when there are no genuine issues
of material fact and any party is entitled to judgment as a matter of law). 
¶
7.     In
construing § 317(c)(24), our principal goal is to
effectuate the Legislature’s intent. Tarrant v. Dep’t of
Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999). “Where the
Legislature’s intent can be ascertained from the plain meaning of the statute,
we interpret the statute according to the words the Legislature used.” Herald
Assoc., Inc. v. Dean, 174 Vt. 350, 354, 816 A.2d 469, 474 (2002). In
conducting our analysis, we are mindful that the PRA represents “a strong
policy favoring access to public documents and records.” Wesco,
Inc. v. Sorrell, 2004 VT 102, ¶ 10, 177 Vt. 287, 865 A.2d
350. To this end, we construe exemptions in the PRA “strictly against
the custodians of records, and resolve any doubts in favor of disclosure.” Id.

¶
8.     We
agree with the trial court that the documents here fall within the plain
language of § 317(c)(24). As stated above, that
statute exempts from disclosure “records of, or internal materials prepared
for, the deliberations of any public agency acting in a judicial or
quasi-judicial capacity.”2
There is no dispute that District Commissions are public agencies that act in a
quasi-judicial capacity. As the trial court explained, the Commissions hear
evidence and issue rulings in the manner of a court, and their decisions are
subject to review by the Environmental Division. See 10 V.S.A. § 6027 (setting
forth powers of district commissions); id. § 6085 (hearing
procedure); id. § 6086 (permit criteria); id. § 6089 (appeals
from district commission made to environmental division). Their work satisfies
an ordinary understanding of the term “quasi-judicial.” See Comm. to Save
Bishop’s House v. Med. Ctr. Hosp. of Vt., Inc., 137 Vt. 142, 153, 400 A.2d
1015, 1021 (1979) (in interpreting statute, Court presumes that the Legislature
intended the “plain ordinary meaning of the language used”). It is also
consistent with the definition of the term “quasi-judicial proceeding” under
the Vermont Open Meetings Law. See 1 V.S.A. § 310(5) (defining
“quasi-judicial proceeding” for purpose of Vermont Open Meetings Law as “a
contested case under the Vermont Administrative Procedure Act” or “a case in
which the legal rights of one or more persons who are granted party status are
adjudicated, which is conducted in such a way that all parties have opportunity
to present evidence and to cross-examine witnesses presented by other parties,
which results in a written decision, and the result of which is appealable by a
party to a higher authority”). Commissions act in a quasi-judicial capacity
when they consider, as a threshold matter, whether they should recuse themselves from hearing a case. Such action is an
integral part of the judicial or quasi-judicial process. See, e.g., Vt. Const. ch. II, § 28 (stating that courts must “impartially
administer[]” justice); 3 V.S.A. App. § 3-53 (No. 09-11) (2011) (Executive Code
of Ethics) (recognizing that “it is essential to the proper operation of
government that public officers be independent and impartial” and “that
governmental decisions . . . be made fairly and impartially”); see also In
re Union Leader Corp., 292 F.2d 381, 384 (1st Cir. 1961) (“From the general
standpoint of the interest of justice, the right to be tried before an unbiased
judge is . . . basic in our judicial system.”) (quotation
marks omitted); In re Antonio, 612 A.2d 650, 653 (R.I. 1992) (“It is
axiomatic that judges are obligated to recuse
themselves in the event that they are unable to render fair and impartial
decisions in their cases.”). 
¶
9.     It
is equally evident that the documents here are “records . . . of the
deliberations” of the District Commission. The word “deliberate” means “a
discussion and consideration by a group of persons of the reasons for and
against a measure.” Webster’s Ninth New Collegiate Dictionary 336 (1985). This
echoes the definition of the term “deliberations” as used in the Vermont Open
Meetings Law. See 1 V.S.A. § 310(1) (“deliberations” for purpose of
Vermont Open Meetings Law means “weighing, examining and discussing the reasons
for and against an act or decision, but expressly
excludes the taking of evidence and the arguments of parties”). Email
discussions between the members of the District Commission and an assigned
staff attorney as to whether a case should be transferred fit well within the
plain meaning of the word “deliberations.” There can be no question, moreover, that
the emails are “records” of such deliberations. See 1 V.S.A. § 317(b)
(defining “public record” as “any written or recorded information, regardless
of physical form or characteristics, which is produced or acquired in the
course of public agency business”).
¶
10.     This
conclusion serves the purpose of the statute, which, as the trial court found,
is designed to protect the integrity of the judicial process. As the United States Supreme Court recognized in United States
v. Morgan, when an administrative official acts in a quasi-judicial
capacity, examination of his or her mental processes “would be destructive of
judicial responsibility.” 313 U.S. 409, 422 (1941).
“Just as a judge cannot be subjected to such a scrutiny, so the integrity of
the administrative process must be equally respected.” Id. (citations
omitted); see also Thomas v. Page, 837 N.E.2d 483, 488 (Ill. App. Ct.
2005) (“It is well-settled that a judge may not be asked to testify as to his
or her mental impressions or processes in reaching a judicial decision.”); State
ex rel. Kaufman v. Zakaib, 535 S.E.2d 727, 735
(W. Va. 2000) (holding that judicial officers may not be compelled to testify
regarding their mental processes used in formulating official judgments or the
reasons that motivate them in their official acts). This basic principle is
recognized not only in § 317(c)(24) but also in the
Vermont Open Meetings Law, which specifically excludes from its provisions “the
deliberations of any public body in connection with a quasi-judicial proceeding.”
1 V.S.A. § 312(e). 
¶
11.     The
reasons for protecting such deliberations is evident.
As the Page court explained: 
[c]onfidential communications between judges and between
judges and the court’s staff certainly originate in a confidence that they will
not be disclosed. Judges frequently rely upon the advice of their colleagues
and staffs in resolving cases before them and have a need to confer freely and
frankly without fear of disclosure. If the rule were otherwise, the advice that
judges receive and their exchange of views may not be as open and honest as the
public good requires. In order to protect the effectiveness of the judicial
decision-making process, judges cannot be burdened with a suspicion that their
deliberations and communications might be made public at a later date. 
 
Id.
at 489-90 (citation and quotation marks omitted). This approach protects the
public good, rather than the individual judges and their staffs. See id.
at 490 (“If the confidentiality of these intra-court
communications were not protected, judges and their staffs would be subject to
the pressures of public opinion and might well refrain from speaking frankly
during deliberations.”). Similar policy concerns underlie § 317(c)(24) and protect the records at issue here. 
¶
12.     None
of plaintiffs’ arguments persuade us otherwise. Plaintiffs seek to introduce
confusion into the plain language of § 317(c)(24),
relying on federal case law and a largely inapposite legal doctrine. They
assert that § 317(c)(24) incorporates the
“deliberative process privilege” as developed under federal law and argue that
we must allow the disclosure of an agency’s “working law.” They classify the
documents here as constituting such “working law.” 
¶
13.     As
support for their arguments, plaintiffs rely on federal case law interpreting 5
U.S.C. § 552(b)(5) of the federal Freedom of
Information Act (FOIA). That provision excludes from disclosure “inter-agency
or intra-agency memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency.” Id. Federal
courts have interpreted this provision to incorporate civil discovery
privileges, including what is sometimes called the “deliberative process”
privilege or the “executive privilege.” See Nat’l Labor Relations Bd. v.
Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).3 
¶
14.     Under
federal case law, the deliberative process privilege rests “on the policy of protecting
the ‘decision making processes of government agencies,’ and focus[es] on documents ‘reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Id. at 150
(citations omitted and emphasis added). Federal courts have drawn a distinction
between predecisional communications, which are
protected from disclosure under FOIA, and “communications made after the
decision and designed to explain it, which are not.” Id. at 151-52; see
also New England Coal. for Energy Efficiency & the Env’t
v. Office of the Governor, 164 Vt. 337, 340-41, 670 A.2d 815, 817-18 (1995)
(discussing federal approach under exemption 5 of FOIA, and rejecting
plaintiffs’ argument that a “predecision/postdecision” distinction should apply in Vermont to claims
of common-law executive privilege).
¶
15.     Predecisional
documents are generally viewed “as part of the agency give-and-take leading up
to a decision, while postdecisional documents frequently
represent the agency’s position on an issue, or explain such a position, and
thus may constitute the ‘working law’ of an agency.” New
England Coal. for Energy Efficiency,
164 Vt. at 341, 670 A.2d at 817 (quotations omitted). The federal courts reason
that “the quality of agency decisions is maintained by protecting the
ingredients of the decisionmaking process from
disclosure,” while “communications that follow the decision, explaining or
implementing it, do not raise the same concerns for candor and frank
discussion.” Id. (quotation omitted). 
¶
16.     Whatever
the value of this approach (which appears minimal in a quasi-judicial or
judicial context), our Legislature did not adopt it in enacting § 317(c)(24). Our Legislature has determined that all
judicial or quasi-judicial “deliberations” are exempt from disclosure. It does
not purport to incorporate a “deliberative process privilege” or distinguish
between a quasi-judicial agency’s “working law” and other material, and we
reject plaintiffs’ assertion that we should read such a distinction into the
statute. In any event, even assuming arguendo that
the federal deliberative process doctrine was somehow incorporated into
§ 317(c)(24), federal case law clearly recognizes
that an agency’s “pre-decisional communications” are exempt from public view.
See Sears, Roebuck & Co., 421 U.S. at 153 (stating that under FOIA,
“[e]xemption 5, properly construed, calls for
disclosure of all opinions and interpretations which embody the agency’s
effective law and policy, and the withholding of all papers which reflect
the agency’s group thinking in the process of working out its policy and
determining what its law shall be” (quotation omitted and emphasis added)).
To the extent an analogy can be drawn, plaintiffs seek “predecisional”
material here. 
¶
17.     We
find plaintiffs’ remaining arguments equally without merit. First, we reject
plaintiffs’ assertion that, in applying § 317(c)(24),
the trial court was obligated to weigh the public interest in disclosure against
the defendants’ legitimate expectation of privacy. The plain language of the
statute does not call for a balancing test, and there are no grounds for
reading such test into the statute. See State v. O’Neill, 165 Vt. 270,
275, 682 A.2d 943, 946 (1996) (“It is inappropriate to read into a statute
something which is not there unless it is necessary in order to make the
statute effective.”). Unlike the cases on which plaintiffs rely, the language
used in § 317(c)(24) is not “vague and
potentially limitless.” See, e.g., Kade v.
Smith, 2006 VT 44, ¶ 8, 180 Vt. 554, 904 A.2d 1080 (finding terms of
“personal documents” exemption under PRA to be “vague and potentially
limitless,” and reasoning that because a broad construction of the term would
consume the disclosure rule, exemption must be limited to instances where
disclosure would constitute an invasion of personal privacy). Rather, the
statute reflects the Legislature’s intent to categorically exempt all “records
of, or internal materials prepared for, the deliberations of any public agency
acting in a judicial or quasi-judicial capacity.” See Caledonian-Record Publ’g Co. v. Vt. State Colls.,
2003 VT 78, ¶ 9, 175 Vt. 438, 833 A.2d 1273 (reaching similar conclusion
as to exemption for “student records,” explaining that while term was
undefined, the language of the exception was broad and unqualified, and nothing
in the PRA suggested any content-based restrictions limiting the exception to
certain subjects). 
¶
18.      Our
decision in Killington v. Lash, cited by plaintiffs, is equally
inapposite. 153 Vt. 628, 638, 572 A.2d 1368, 1374 (1990).
In that case, we stated that “[w]hether or not a
claim of executive privilege will be honored is a question always
contingent on a balancing of the interests of confidentiality against those of
disclosure.” Id. at 637-38, 572 A.2d at 1374 (emphasis added). The fact
that a balancing may be inherent in implementing the common law executive
privilege, see id. at 636-37, 572 A.2d at 1374,
has no bearing on our interpretation of § 317(c)(24). It is evident from
the statute’s plain language that, in enacting § 317(c)(24),
the Legislature evaluated the competing interests and concluded that a blanket
exemption on quasi-judicial deliberations was appropriate. 
¶
19.     Finally,
we find no support for plaintiffs’ assertion that defendants waived their right
to the PRA exemption because agency officials stated the reasons for their
decision to a Bristol resident and to a newspaper reporter. Plaintiffs point to
Vermont Rule of Evidence 510 and assert that, assuming arguendo
that the emails are shielded by the “deliberative process privilege,” such
privilege is waived when any “significant part” of the privileged matter has
been voluntarily disclosed.4
They cite an 1834 case as additional support for this proposition. 
¶
20.     As
discussed above, this case does not involve defendants’ invocation of a
personally-held evidentiary privilege and both V.R.E. 510 and the case cited by
plaintiffs are inapposite. See V.R.E. 510 (2011) (providing that “[a] person
upon whom these rules confer a privilege against disclosure waives the
privilege if he or his predecessor while holder of the privilege voluntarily
discloses or consents to disclosure of any significant part of the privileged
matter.”); Wood v. Kinsman & Lamb, 5 Vt. 588, 597-98 (1834)
(discussing waiver of personal privilege available to party to defeat an
arrest). This case involves a specific and plainly stated statutory exemption
under the PRA. Plaintiffs cite no compelling support for their assertion that
simply because an agency member speaks with a newspaper reporter or other
individual, the agency thereby opens to scrutiny the mental processes by which
its members arrived at a decision. This approach is inconsistent with § 317(c)(24) and the public good that the statutory exemption is
designed to promote. 
 

Affirmed.



FOR
  THE COURT:













Chief Justice

 
1
Defendants also asserted that the communications were between members of
Commission #9 and counsel and were therefore privileged and exempt under 1
V.S.A. § 317(c)(4). The trial court rejected this argument in its summary
judgment decision. 
2
We do not consider plaintiffs’ argument that the records are not “internal
materials prepared for” the deliberations of the Commission because plaintiffs
fail to show that they raised the issue below. See Bull v. Pinkham Eng’g Assocs., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000)
(“Contentions not raised or fairly presented to the trial court are not
preserved for appeal.”). We note, moreover, that the trial court did not rely
on this language in the statute in reaching its decision. 
3
We note that the Vermont Legislature has specifically rejected the notion that
the general assembly and the executive branch can rely on the common law
deliberative process privilege to shield the disclosure of public records. See
1 V.S.A. § 317(c)(4) (exempting from disclosure under
the PRA those “records which, if made public pursuant to this subchapter, would
cause the custodian to violate any statutory or common law privilege other
than the common law deliberative process privilege as it applies to the general
assembly and the executive branch agencies of the state of Vermont”
(emphasis added)). 
4
We do not address plaintiffs’ arguments concerning any alleged waiver of the attorney-client
privilege as the trial court did not find, or base its decision, on the
existence of an attorney-client privilege. 
 

