Monday, May 7, 2012

Public Records Everywhere and Not a Document Released



Rueger v. Natural Resources Board, 2012 VT 33.

It has been quite a spring for public record watchers.  In no less than three cases, the SCOV has written lengthy and dense opinions about the nature and scope of public record requests and the exemptions available.  Throw in the last decision of 2011 as well as today’s opinion, and it is clear, the SCOV is on a roll. 

This is good news for any student of good government, but it is certainly a warning to any party preparing to make a public record request: read your SCOV Law Blog because things are changing.


Today’s case explores the quasi-judicial deliberative process exemption—an oft-invoked, rarely challenged feature of public records law.  Basically, the exemption allows an agency to deny a request to produce for any document created or used in the process of deliberating an appealable decision.  So members of a zoning board can e-mail drafts of a permit decision, make impolitic comments, and ask stupid questions without fear that someday these deliberations might become public and cause embarrassment

Plaintiffs in this case are neighbors who have long opposed a gravel pit application made before the Act 250 District 9 Commission.  In February 2010, Applicants submitted a new proposal, and the District 9 Commissioners requested to be recused.  In March, the Natural Resources Board granted the request and transferred the application to another district commission. 

Plaintiffs, perhaps aghast at the thought that the commissioners had waited so long in the hearing process to recuse themselves, made a public record request for the communications between commissioner members and the NRB about the recusal request.  The NRB refused citing Exemption 24, which protects deliberative materials.  The NRB argued that the material was generated to help the commissioners and the NRB make a recusal determination.  Plaintiffs appealed to the trial court, which ruled in favor of the NRB, and finally to the SCOV.

On appeal, the SCOV concludes that the district commission is exactly the type of quasi-judicial administrative bodies intended to be protected by the Exemption, and the documents are exactly the type of deliberative, decision-making records intended by the legislature to be covered under Exemption 24.  In fact, there is little here to give the SCOV pause.  The records were generated in the process of speaking to counsel as part of deliberations where the district commissioners were acting in their most judicial-like manner— making a recusal determination in response to a new application. 

Plaintiffs, nevertheless, make several arguments in favor of disclosure.  The first is to analogize Exemption 24 to Exemption 5 under the federal Freedom of Information Act.  This exemption covers inter-agency memorandum and protects only those deliberative communications that occur before a decision has been made.  Any communications arising after the decision is fair game for the public. 

In rejecting this argument, the SCOV rules that Exemption 24 was not intended to have the same limitations as the federal exemption.  Exemption 24 is essentially the administrative equivalent of the judicial privilege that protects judges from disclosing drafts or research memos of their opinions.  The purpose is to protect the process and to ensure that drafts or revisions are not circulated so as to impact or affect the court’s final decision.

So too here, Exemption 24, as written by the legislature, is intended to protect the administrative bodies from having to disclose their process and thereby tainting their quasi-judicial decisions.  As we have said before, the message is: Do not ask us how we rule, simply know that we have done it.

Imposing the balancing of the federal exemption makes no sense as the process is the process—whether a decision has been made or not.  Not so at the federal level, where the exemption is applied to all agency decisions, and where information about the post-decision evolution of policy and justification are important components to understanding the agency’s position and raising questions about it—a process built into administrative law.

Plaintiffs strike out with their next round of arguments too.  The SCOV refuses to read a balancing test between public interest and right of privacy into the Exemption.  Unlike Exemption 7, there is no such language to lead the SCOV to determine that the legislature intended this information to be released under certain circumstances.  Furthermore, the nature of the exemption is a protection to quasi-judicial process, which augers against such balancing.

Finally, the SCOV rejects Plaintiffs’ factual argument that the District Commission had waived the exemption by allegedly communicating their reason behind the recusal to the local paper and to one individual.  The SCOV rules that Exemption 24 is a process exemption not held by or to protect a single individual.  Therefore, no individual can waive the exemption.  It remains in place no matter how many lose lips disclose the substance of the ship.

With that, Plaintiffs are out of arguments and will have to go back to Act 250 and continue their opposition without further proof of wrong doing or undue influence.  

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