NEWS MEDIA UPDATE · VERMONT · Freedom of Information · Nov. 8, 2005
High court says Howard Dean’s sealing of records is legal
Nov. 8, 2005 · Former Vermont Gov. and presidential candidate Howard Dean was legally justified in sealing more than 93 boxes of gubernatorial records before leaving office in 2003, the state Supreme Court ruled unanimously Friday.
In reversing a 2004 trial court ruling, the high court concluded that shielding more than 550,000 pages which Dean deemed “sensitive” and “privileged” is allowed under the state’s Archives Act which trumps the state’s public records law with regard to gubernatorial records and allows for restricted access under “special terms or conditions of law restricting their use.”
“The Secretary of State’s practice under the Archives Act has been to accept gubernatorial papers subject to special terms or conditions broadly and independently limiting access to materials designated by the outgoing governor as privileged,” Associate Justice Marilyn Skoglund wrote for the court. “Interpretation of the [Archives Act] is consistent with its plain language and legislative history, and is therefore entitled to substantial deference.”
The files are to be sealed until 2013. The court noted that other Vermont governors have similarly and temporarily sealed some records upon leaving office, although never for a 10-year period.
“We didn’t want anything embarrassing appearing in the papers at a critical time in any future endeavor,” Dean told reporters when he left office to pursue the Democratic presidential nomination. He later said during the 2004 campaign that his comment was entirely in jest, but opponents began fervently pushing him to make the documents available.
Dean’s predecessor and Vermont’s secretary of state and state archivist negotiated a memorandum of understanding hoping to overcome the state’s Public Access Law and seal the records for 10 years.
The Washington-based right-wing watchdog group Judicial Watch sued to gain access to the gubernatorial documents, arguing the documents should be public.
“Dean’s political aspirations and his desire to prevent anything from ruining them are not sound arguments for secreting such an enormous quantity of government documents from the public,” said Judicial Watch President Tom Fitton in an interview with The Associated Press.
“It’s a very insular political community up there,” Fitton told the AP. “I think the court’s part of that and they’re protecting their own. There’s no justice in Vermont today.”
In February 2004, the Vermont Superior Court in Montpelier ruled against Dean and the state, saying that the former governor did not hold the authority to order 93 boxes of documents “privileged.”. The trial court cited the state Archives Act and also said the documents were governed by the Public Records Act.
Associate Justice John Dooley III wrote an opinion concurring with the Supreme Court’s rule expressing concern that the vague interpretation of the Public Records Act could be detrimental if not clarified.
“While I agree with the majority decision based on the statutes we are required to implement, I don’t think that the answers in future cases are predictable based on the current state of these statutes,” Dooley wrote. “I urge the Legislature to review and clarify them so we have a clear road map for the future.”
(Judicial Watch, Inc. v. State of Vermont, Howard Dean, et. al.; Requester’s Counsel: Andrew D. Manitsky, Gravel and Shea, Burlington, Vt.) — KT