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Executive privilege insufficient to seal Dean's gubernatorial records

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    News Media Update         VERMONT         Freedom of Information    

Executive privilege insufficient to seal Dean’s gubernatorial records

  • The Vermont secretary of state cannot categorically seal papers from Gov. Howard Dean’s administration under an agreement reached with Dean at the end of his term, a state superior court judge ruled, requiring release of the records or an index of claimed exemptions.

Feb. 19, 2004 — A superior court judge in Vermont this week ordered the state to release former Gov. Howard Dean’s sealed gubernatorial records or provide an index detailing which documents should not be disclosed and why.

Judge Alan W. Cook of Superior Court in Montpelier held that the state, representing Dean and Secretary of State Deborah Markowitz, must release the records or explain why executive privilege or other exemptions permit withholding 600,000 of Dean’s gubernatorial records. Cook ordered the state to submit a “Vaughn Index” — a description of each document withheld and an explanation as to why it was sealed.

Cook rejected the state’s argument that it could not release the records because a law requiring that records deposited with the secretary of state under special terms can only be released according to the terms of the agreement. Dean signed an agreement delaying release of official paper he filed there. Two previous governors had signed similar agreements. Cook ruled that the agreements did not necessarily make any records exempt from the open records law.

Cook had “difficulty believing” the state’s argument that “the Secretary of State (is empowered) to exempt those gubernatorial papers from the Public Records Act upon the governor’s retirement which by all accounts would have been subject to it — even if also subject to a claim of executive privilege — during the governor’s term, when the need for secrecy is most intense.”

“A Vaughn index benefits the agency opposing disclosure by placing it in the best position to make detailed arguments against disclosure,” Cook said. “The requesting party benefits by the creation of a record to support its arguments in favor of disclosure and in opposition to the government’s claim.”

Judicial Watch, a government watchdog organization, demanded the release of the records in a Sept. 25 letter to Dean, who was then the front-runner in the Democratic presidential primary. Dean refused and Judicial Watch filed a lawsuit Dec. 3 seeking disclosure.

Early in 2003 Dean, in response to reporters’ questions, said he had claimed executive privilege to seal these records because of “future political considerations.” Dean later claimed he was only joking. However, Judicial Watch presented the court with letters written by the state archivist to Markowitz and to Dean’s attorney that showed potential political “embarrassment” was a consideration in delaying the documents’ disclosure.

“There was no valid justification given,” said Mike Donoghue, executive director of the Vermont Press Association. “The secretary of state clearly went beyond her authority in granting such a blanket order for secrecy.”

“The judge basically said to both sides, ‘Whoa, slow down here,’ ” Vermont Attorney General William Sorrell told the Associated Press, in a Feb. 17 story.

The Vermont attorney general’s office said it has not yet decided if it will appeal to the state Supreme Court..

Although Dean blocked the release of 30 to 40 percent of his gubernatorial records, he did make 190 boxes available for public access.

(Judicial Watch v. State of Vermont, et. al.; Counsel: Andrew D. Manitsky, Gravel and Shea, Burlington, Vermont) AB

© 2004 The Reporters Committee for Freedom of the Press

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