Freqeuntly Asked Questions About Deliberative Process Privilege

February 1, 2006

FAQ’s about H. 615 and the “common-law deliberative process privilege”

What is the deliberative process privilege?
The common-law deliberative process privilege is a judge-made exception to the general rule of free and open public access to government records. It allows the unelected political appointees who run state government to selectively deny the public access to all internal agency documents, drafts, emails, and memoranda relating to the formulation of public policy. It exempts advisory or deliberative documents from public review even in cases where a staff-level agency employee who created the document believes that it should be open to the public.

This is a new Douglas administration policy, which indicates that these cases may just be the tip of an iceberg.

Why is the deliberative process privilege inconsistent with Vermont’s heritage of open government?

• The Vermont State Archivist warns that “to extend a broad authority of deliberative process privilege to agency department heads carries the threat of swallowing the intent of our right to know laws.”
• The privilege decreases the amount of information available to citizens on the actual operation of the executive branch, on the character and/or competence of government officials, and on the degree to which government is addressing the needs of all citizens, not just politically connected special interests. This legalized government secrecy will erode the public’s trust in state government.
• The privilege can be abused by agency heads that hold the exclusive power to selectively grant or deny the public access to agency documents. Political appointees can grant preferred special interests access to information while denying other members of the public access to the same information.

How have Douglas Administration officials used deliberative process privilege to harm the public interest?

• Reporters from the Burlington Free Press and Rutland Herald were denied access to over 70 documents relating to violations of state and federal law that resulted in serious pollution of the Missisquoi River by a private developer. The use of the privilege in this case creates the appearance that the polluter received preferential treatment in environmental permitting and enforcement, and that the Agency of Natural Resources is trying to cover it up.
• A citizen’s group was denied access to approximately 300 agency documents that could help explain why the Department of Environmental Conservation has failed to implement an important pollution prevention program required by federal law since 1990. Vermont is the last state in the nation to comply with this aspect of the Clean Water Act.
• Employees at a state agency were denied access to workplace policy documents involving a situation where state employees became seriously ill because of adverse working conditions.

Isn’t deliberative process privilege already part of Vermont Law?

No. For the last 30 years, the Public Records Act has ensured that state government is transparent and accountable. There is no record of deliberative process privilege in Vermont prior to its use by several political appointees in the Douglas Administration. The Vermont Supreme Court has never recognized the deliberative process privilege as part of Vermont law. The first Vermont state court case recognizing deliberative process privilege in Vermont was decided very recently in July 2005 and was not reviewed by the Supreme Court.

Vermont already has 159 specific, limited exemptions that allow government officials to legitimately withhold information from the public when doing so is necessary to protect personal privacy, proprietary information, and homeland security. Otherwise, all information relating to public business is open to public examination consistent with Ch. 1 Art. 6 of the Vermont State Constitution and 1 V.S.A. § 315 of the Public Records Act.

Shouldn’t the Legislature wait to see how the Courts decide this issue?

Open government is an issue of importance to all Vermonters, not just the parties involved in the court case. The Legislature is the only forum in which every Vermonter’s voice can be heard. By contrast, the Court will only consider the views presented by the lawyers in the case. The Legislature is the branch of government with expertise on issues of public access; it wrote the law.

Isn’t the deliberative process privilege recognized in federal law and the law of many other states?

Federal government agencies do enjoy a greater level of legalized government secrecy than Vermont state agencies. Unfortunately, in recent years this ability to conduct business out of the public eye has led to confusion, frustration, and more tension between government officials and citizens. Some states have also legalized various levels of government secrecy, but each has found a balance based on their own culture and history. Vermont has a proud tradition of open government and independence that has been affirmed in the past by the state legislature and that H. 615 seeks to protect. H. 615 presents a clear choice between reaffirming our proud heritage of open government or following a slippery slope toward increased government secrecy.

Wouldn’t H. 615 provide for too much public involvement in agency business?

The 8,000 men and women who work as career employees at state agencies don’t think so. That is why the Vermont State Employees Association (VSEA) supports H. 615. They believe that openness is the best way to foster the public’s trust in government and respect for the work state employees do. Furthermore, until the Washington Superior Court decision in 2005, agency deliberative process information was available under the public records act, and there was little or no evidence that a problem existed. No supporters of deliberative process have come forward with any examples to prove that good government and public involvement and access to records are incompatible. At the end of the day, Vermonters must decide which is worse: Too much democracy or too much government secrecy?

Is this a partisan issue?

No, government transparency and accountability is a Vermont value that all parties should support. H. 615 has tri-partisan sponsorship and should have tri-partisan support on the floor.

Will H. 615 affect how the Legislature does its business?

No. By its express terms, H 615 applies ONLY to state agencies not the Courts or the Legislature. The Legislature’s deliberative process is already open for all Vermonters to see. The public are invited to attend committee hearings, sit in on floor debates, comment and testify on proposed bills, and track legislation as it evolves. Bills are introduced and debated in an open fashion and every Vermonter gets input through his or her representative or senator. By contrast, State agencies deliberate behind closed doors, and the public records act is one of the only tools Vermonters have to stay involved in and monitor the integrity of agency deliberations. Like the Legislature, which can seek confidential advice from Legislative Counsel, state agency heads and career employees can still seek confidential legal advice about agency decisions from agency lawyers. H. 615 does nothing to disturb the attorney-client privilege for legislators or agency employees.