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
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 open-
government 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




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