AND REQUEST FOR PRf;Cf:DENCE DOCKET

NATURE OF ACTION

:A

STATE OF VERMONT WASIIlNGTON SUPERIOR COURT

WASH1NGTON COUNTY, SS. Civil Action, Docket No.

JUDIClAL WATCH, INC., )Plaintiff )

)v. )

)THE STATE OF VERMONT, )DEBORAH L. MAR.KOWITZ, )in her official capacity as Secretary of )State of the State of Vermont> )GREGORY SANFORD, )in his official capacity as State Archivist )of the State of Vermont, and )HOW ARD DEAN, M.D.! )in his capacity as former )Governor of Vermont, )

Defendants )

Plaintiff Judicial Watch, Inc. (0Judicial Watchn), by its undersigned attorneys, for its

Complaint against Defendants, alleges as follows:

COMPLAINT UNDER VERMONT ACCESS TO PUBLIC RECORDS LAW ON THE

1. This action seeks Defendants, compliance with the Vermont Access to Public

Records Act, 1 V .S.A. §§ 315 to 320. Pefendants have steadfastly refused to disclose hundreds

of thousands of pages of public records and papers of former Vermont Governor and current

United States presidential candidates Dr. Howard Dean, based solely on an unsupponed, blanket

claim of '"executive privilege" as memorializ d in a "'Memorandum ofUnder:mmdingn that Dr-

VEL ./\.NP SH.£.4. rt'ORN'EYS AT l-AW p, 0. aax 369

NCTON,VSRMONT fi5402--0l09

PARiffiS

Dean negotiated with the other Defendants. However:1 some five months before officially

announcing his candidacy for president, Dr. Dean acknowledged (on Vermont Public Radio) that

this secrecy is motivated by 'future political considerations,, and the desire to prevent "anything

embarrassing [from] appearing in the papers at a critical time in any future endeavor.n This is

not a legitimate basis for refusing to release public documents.

2. This Court has jurisdiction over this action pursuant to 4 V.S.A. § 113, and venue

is properly situated in this Court pursuant to l V.S.A. § 319(a).

3. Plaintiff Judicial Watch is a non-profit, educational foundation organized under

the laws of the District of Columbia with its principal place of business at 501 School Street,

S. W., Suite 500, Washingto D.C. 20024. Judicial Watch is a public interest., non...parrisan

"watchdog!!' organization that routinely requests, obtains and disseminates information and

records regarding govemment officials and operations.

4. Defendant Deborah L. Markowitz (" Markowitzn) is the Secretary of State of the

State of Vermont with her principal place of business in Montpelier, Vermont. Defendant

Markowitz is being sued in her official capacity as Secretary of State of the Slate of Vennont.

5. Defendant Gregory Sanford e·sanford'1) is the State Archivist of the State of

Vermont with his principal place of business in Montpelier, Vermont. Defendant Sanford is

being ::;ued in his official capacity as State Archivist of the State of Vermont.

- 2 .. MV2L. J\NP SHE.A "TI'O S ti.T L.-..W

P. o. Box 309 Rl.lNCTON, V:ERMONr

054{)2--0369

FACTS

6. Defendant Stat:e ofVennont employs Markowitz and Sanford=> who act Wlder its

authority.

7. Defendant Howard Dean M .. D!I is the form.er Govemor of the State of V ennom.

Dt:fendant Pr. Dean is being sued in his capacity as former Governor of Vermont, and is named

as a Defendant in accordance with V.R.C.P. 19(a)(2).

8. Vennont's Access to Public Records Act declares: "'Officers of government are

tmstees and servants of the people and it is in the public interest to enable any person to review

and criticize their decisions even though such examination may cause inconvenience or

embarrassment.'' l V.S.A. § 315. The Act permits " [a]ny person" to •·inspect or copy any public

record or document.. .. ,, 1 V.S.A. § 316.

9. By letter dared August 25, 2003 to Defendant Sanford, Judicial Watch requested

access to all of the gubernatorial public records and papers of former Vennout governor and

current United States presidential candidate Howard Dean, pursuant to the Vermom: Access to

Public Records Act, 1 V.S.A. § 315, et seq. (A copy of that letter is annexed hereto as Exhibit

l.)

IO. By letter dated August 26, 2003, Sanford informed Judicial Watch that its

representatives were free to inspect certain, limited gubernatorial records of Governor Dean

during regular office hours at the Office of the Secretary of Stare, including hlllldreds of pages

of children7s request[s] for autographs, congratulatory notes to Vermonters achieving some

.. 3 .. VE:L. AND SHEA TIOR.NE."X"S AT LAW ? o ao:x 369

J.!NGTON, VER.MON! 05 --0569

. .'ITORNEYS

milestone (lOOfh birthday, for example), etc." (A copy of that letter is annexed hereto as Exhibit

2.)

11. Sanford also asserted that other gubernatorial records of Governor Dean were not

available for inspection but:i rather, were protected from public disclosure by a January 2003

Memorandum of Understanding C MOlI'') entered into and executed by Governor Dean;>

Defendant Markowitz and V ennont Attorney General William Sorrell e sorrell"). According to

the MOU, a copy of which was included with Sanford's August 265 2003 response, '""any ponion

of correspondence determined by Governor Dean to be encompassed by executive privilegen will

be sealed for ten years. (A copy ofthe MOU is annexed hereto as Exhibit 3.)

12. There is no Vermont statute or other law that authorizes a govern.or (or anyone

else, for that matter) to enter into a •'Memorandum. of Understanding'' as a means of preventing

public review of a governor's official coirespondence.

13. By letter dated November 19, 2003, Judicial Watch appealed Sanford's

di!tenuination to Secretary of State Markowitz. (A copy of that leuer is annexed hereto as

Exhibit 4). In its appeal letter, Judicial Watch cited press repons indicating that between 30% to

40% of Governor Dean's gubernatorial records were being withheld from public scrutiny based

on a blanket claim of" executive privilege." Id., ciring, Ross Sneyd:i Washington Watchdog

Group Wants to Force Dean to Open Records,'' Associated Press, October l, 2003. Judicial

Watch's appeal letter also noted:

Tue roughly 550,000 to 600)000 gubernatorial records that are available for public inspection reponed.ly consist of routine correspondence, executive orders.. appaintments etc. These documents are not particularly useful or interesting to persons or

- 4 .. RAVEL Al:>W SHEii. f{I LAw

P. O. Box369 ru.!NCTON'. Vf:lt.MON1'

;;;) )

organizations wishing ro examine Governor Dean's record on policy development and implementation, governance and management. Given Governor Dean's political aspirations for the presidency, there is a broad-based7 compelling public interest :in his policy and management record as governor of Vermont.

Jd. Judicial Watch's appeal also observed that other organizations, including The Boston Globe,

requested access to all of Governor Dean's gubernatorial records. Id Judicial Watch explained

that it simply !.'-seeks to have these records made available to the citizens of Vermont> the news

medi public interest groups, and the American public for their review.'' Id.

14. Judicial Watch's November 19, 2003 appeal letter further noted that> in January

2003, when asked why he insisted on keeping such a large portion of his records closed to public

review, Govern.or Dean told Venuont Public Radio: '"·Well, there are future political

considerations. We didn't want anYthing embarrassing appearing in the papers at a critical time in any future endeavor." Id.\' citing Sarah Schweitzer, "I.Dean is Asked to Release Gubernatorial

Records," The Boston Globe, October 2, 2003.

15. Memoranda and correspondence obtained by Judicial Watch through a subsequent

Vermont Public Records Act request further demonstrate that Governor Dean's political

ambition, rather than any legitimate concern about protecting the deliberative or policymaking

process, was the driving force behind effons to withhold large portions of the Govemor'$ papers

from public scrutiny.

16. For example> as Defendant Sanford explained in his August 2 l, 2002

memorandum to Govemor Dean's legal counsel, David Rocchio:

You asked me to further develop tbe idea that executive privilege closures might not be bound by a date certain, but rather reflect the

- 5 ... }-RAVEL ANP SHU .A'ITO 4f LAW

P. O Box. 369 JH.UNC'l"ON, VER.M:ONT

05"i{}:l-0.'36.9

Governor's status (i.e., being President> presidential candidate) at the ti the records would normally be open under a memorandum of understanding . . . . The ...Willie Honan,, example was raised. It is an unfonunate reality that attack ads have become pan of our political culture. It would be impossible to anticipate how opponents might mis/use even the most innocuous of docu.ments ....

(A copy of that memorandum is annexed hereto as Exhibit S .. )

17. And as Sanford explained in his September 4, 2002 memorandum to Marko'Witz

and Sorrell:

Reality check.: While David and I agreed earlier that ·embarrassment'' (ala Willie Honon type attack ads) was not

grounds for exemption, we are really talking about •f ambition. '1

. . . Withoui: conceding That a governor's post-aclminisu:a.uon political ambitions are a legitimate basis for closure, can we offer, in the interest of moving forward, eight years? That would mean that the records would become open in 2011. If Gov. Dean became president in 2005 he would either be in bis second term or out of office. If he failed in 2004, that would mean he would have had an opportunity to nm again in 2008 and, if successful, be in the St!cond year of his administration. [emphasis acideq]

(A copy of that memorandum is aonexed hereto as Exhibit 6.)

18. Governor Dean has chosen ro become a candidate for the nation's highest office,

so the public has an obvious and compelling interest in his tenure as Governor of the State of

Vermont and in his gubernatorial papers. If, as press repons indicate, 30% to 40% of his

gubernatorial papers are subject to the MOU's restrictions, then as many as 400,000 pages of

docwnents responsive to Judicial Watch's August 25, 2003 Public Records Act Request are

being withheld from public scrutiny based upon an unsupponed, blanket claim of executive

privilege." Dr. Dean:o s tenw:e as Govern.or and the documents relating thf!reto {including the

refusal to make these documents publicly available) have all recently received considerable press

-6-RAVEL AND SHEA muR.N:E1's AX l...hw

P. O. Box 369 t.UNCTON, V&:SMONT

SI

REQUEST FOR PRECEDENCE ON THE DOCKµT

coverage and without question reflect matters of public interest. Judicial Watch seeks to have

any and all of the Govemor1 s properly releaseable gubernatorial papers made available to

Judicial Watch's representatives, the citizens of Vermont, the news m.e4ia, other public interest

groups, and the American public, for their review.

19. By letter dated November 26, 2003, Secretary of State Markowitz r<;!jected

Judicial Watch's November 1 9, 2003 appeal. (A copy of that letter is annexed hereto as Exhibit

7.) 20. Judicial Watch has exhausted all administrative remedies to compel disclosure of

the requested pu'Plic documents., and its claims are now ripe for judicial review.

21. Upon information and belief, a substantial nwuber of the requested public

documents are not exempt from disclosure.

Pursuant to l V.S.A. § 319(b), Plaintiff requests that this case be given precedence on the

coun docket.

WHEREFORE, Plaintiff respectfully requests that: (i) this maner be advanced on the

docket of The Court and be given as expeditious a hearing as possible? pursuant to 1 V. S .A. §

319(b); (ii) Defendants be ordered to make all ofthe requested records, or any portion thereof not

found to be protected from disclosure by executive privilege, available to Plaintiff and the pubic

without further delay; (iii) this Court assess against Defendants all of Plaintiffs costs and

-7-rAA Vl:H. AND SHEA l\TIDRN'EYSAT !..AW

P. 0. Box 369 RUNGTON.VERMONT

C).)40 -W(i9

and further and equitable

BurlingtoDecember 2003

(iv) this Court

Paul J. Orfanedes:J Esq. Judicial War,ch, Inc. 501 School Street, S.W. Suite Washington) DC 20024 (202) 646-5172

Andrew D. anitsky,Gravel and Shea 76 St. Paul Srreet, 7m P. 0. Box 369 Burlington VT 05402-0369 (802) 658-0220

Anomeys for Plaintiff

RAVEL AND SH. 7CH4/ 3!\tfi'D/:> 1TIOR.NEYS AT LAW

p 0 Box 369 a.INGTON. VERMONT

Exhibit I

JU; PublJc Ji!tvfd.S Lm •nm

R.cdsrtmo :Building

Augu;t 25, 2003

Peborah L.. Mmkowitz OrcgSun!MdV Stat.eV out Seoretary of Stam

26T Stnict Rt'Astone Building26 Tt:miec Street Drawcr09 Dtawer09 Mr:mtpeliet3 VT 05609·1101 Montpeliet, VT OS609-ll01

Pw:sllWlt to the state open records law. Vt. Stat. Amr. tit. l sec. 315 to 320, I wcite u:> aceess to and a copy of all cauc:s.Po m documents, rep records,

statmnents> aiuiitsl' Wits ofmi=s, lic ti01J&, disk=ttea, lettera,, expense logs aad·tecelpts. Cil or diary loP» farJdmile lop. telqlhane rocarda, call ahee:s, tape :recordings, videolmovJ e n:cotdin notes_ examinaliom. op.iniCQlS :fold.a, files, boob, mm:i pamphl dra.wingl, cbam> p toiJ:'aphs:. electronic lllait aud atb£ docummts and things l.bat refer of relate to the following in my ws.y, witbin two (2) buain days;

1) The p.bei-nitarlal papers of Governor &wud Dean.

2) The docisiou to seek a u:.n...year seal au the gubamatorial papem of Governor Howard DmrL

3) Th# decision to &eek a. 20-year s=al on the gu.bo.r.natorial papers of Oovnor Howard Dean.

If your agency does not maiTl:tam these public reccrds, please let mt: knew who does anc iuelude the proper cmstodim:ls nJm.e w:u.i lddreas.

501 S ooI Street SW • Sulte SOO • W on, DC • Tel:: (902) 54&-51 '1Q • (SSS) JW-BTHIC fax: ( l S.199 • email: infc@jud1cf.afwatcl'l..cn'i " Web Siu:io wwwJudJda!Watch.orq

OJ*.alans

meatJs, dissem;natci

lXJmib«

dertiel

Judicial Watchreque&U a waiver af=e:.arc.h and duplicmianfm m the publio i:at="eat.. Judicial Watch1 :me.. is a. ncn-.prcfit.. tax.-axempt SOl(c) (3) educatia.wil foundancm arpnizcd to increaae public tUlde:rstmding of govercxn=t and activities, as weU as the U:nport:mlceofethics iUld the rule of laW in government AJ l'udicial W h, Inc. resulmrly?U!UCitl information about tQe OfJ=ra'ticiu of govemmcct through tho federal Freedom of axi Aot (FOIA) and other uses iti cditorlal skills to tum this infam&ation into distinct: wa aud. resuJarlypuhlisbt!ld and its wmkio th§publi;:m furtheranco gfita ;ducatiOllll mission. Judicial Wa. Iuc.. :r is repeatedly rccaguiud as a. of the llC'Wll nuxii&:i. IUld grau.ted waivm of sCinlh and duplicmiou com in the public in FOlA and otbc' public reoofda raquesli .. We uk the Staie of V am.oni to lilanri.sc grant a waiver of sea.Toh a:c.d. dnplica:tion feas in tbi5 req m the public interest.

days.

inclWUng Ifyou choose to deny this rcq'QM, please provide a. wrlu= explanation for the

a rcfenmce t.o me 5.P "=:uptiQU(1) upon wbig;;b, youl'Oly Al.lo, pl provide all segregable portiOllS of otherwise exmnpt matcriaL

..

Please be iidviaed tlmt we m:e prepc:e4 to pursue whanwcr legal remedy i=:=ssacy ta obtain acc=sa to the requested rccards. We ?Ultc that viclaticm of tbo opc:n tccordl law cm in tha award of litigatiCQl colfS and :rcuoiiable a fees .. law also stat:ei that disciplinmyaction can be ap.;nst m employee who ubitrarlly or capriaiously witbhalds public rcoonis;

JUPIC!AL WATCH, INC.

Exhibit 2

»2.IST Stln.11Nf09

MompcalWf. VTQS6()9 .. :UG1 111 (80l) BZ&-2363

b.t:p:l ..W:.3t:l.1'& "'t.'QI

WWiamA. Oalw 1 'PeptiQ' Sctrt:W: I G.Po:m

Din=t.or, Prof oW 1L gu oo

August 26, Z003

Christopher Farrell Judicial Watch 501 School Sl­Wa;sb.ington, D ..C.. 20024

Pear Mr. Farrell:

I include with thi:> fax a cpy of menionu:idum of �nd.er n.d.ing governing the records of former govemar BDward Dean.

The request for a copy ofall the cpeil records lacks the specifichy of a records request and, as a practical matter:, would cm.tail copyingapproximately 550,000 to 600,000 pieces of paper. You or any of your staff are free to inspect the oper.i gubernatorial records of Howard Dean. during our office hours (Monday Friday, 7 :4S to 4:30).. That would �llow you to -

target which records you want copied and avoid payina for hundreds of pages of children's rec;raest for autograplu, congratulatoey' not.ea to Veononters achieving some milest0no (lOOlh birthday, far example) etc..

The costs ofprovicling copies of public records is govor.ned by l V .. S.A. §316 and fee schedule established by rule (available at http!/twww ..sec.state.vt.us/ag;ess/reeords/feespbtm).

Th initial disoussiona over a possible twenty year closure were part of a verbal give and take between the Goverc.or's legal counsel and myself and were not presr=nted as a formal (wrlttcm) proposal ..

I hope tbis helps answer your questions .. We would -welcome a. visit by you or your staff to inspect the rccar ..

Exhibit

c:x utf

KilY.ugt9:g. l fll. Yi tiiil

IQJlfpcop.. U .. public pttrawmt to [the Rf ghi to I\floW laW] WOUlcf. callSe the cwtodbm to violate ra.J smmtaiy tJr Ct JillllO law privile e,'• l V.S..A. § l17(b)(4)- Sea Slip.."Op. at

. · .

. MRM'.OKANDtJM OF UND.!RSTAN.DIN'O aBT'\VaEN' nm OOVEllNOR. .AND THE SECRETA.R.Y OF STA ta Of Vl:?RMONT aEGABDINO°..�E tvAi

STORA.OS OF GUB ATOIUAL PAP.ER.S.

The puipose of thiJ Memorandum. of iind.e.m'andini iG to establish clear JU.ld=lines to gov 1l . .

. .

pu.blic s tc offiOill ggm$J?ondm<:e of t.b: Govcmor," upou the daposit of that: eor.respc:cu 11!lllCe. I' 'II• {) .... ..

in 'tM cwtody of me Yd of th Ofiic:e oft.hes af'S- ''tb.c=Stat.e ;.1.

is 1:0 deposit ' offi.=ill eorresponden c oft!;e g . - .. with the ;ocmary of :eut.te, n 3 V .S.A § 4(a), who, in ii shall .. . .. enmi lb public ta msp exumim� and stu4y 1lu1 atehi'V'C$ CJf his or lCr offiee:: provided that any ret:crd placed in tlUs af tb.e ctUoe \Uldcr spooiaI =ms 01:' ecnditic 1' c! l w refitri th=ir use shall be made acemsiblc =.ty in ee "'Nith liloie tmd dttic :'lS." 3 V S A., § 11 (a)(2), Tb.= ata.tttm d.01:5 at dmrso "am-espondenecra .. "

' .

:z. '(Febmary 16,, 1990), the Ve.tm.Qllt s Court drew .iponthe Vr.r=.ont eo

.. as well u upciu c.omnion la.w -ft) hald that 'the Gc or cf

vemom may i-SS=tt ''exewuve prlvil=1e'' io pre.wvo ·-= ac:m1identlallty af interJovelllmMlal d.oCu.tneuts reflectm; advb c:>pinion.11 rceommaidatinns and delibe:.Uons co g parta off :e proce.ss by which gov till d.ecisl.om and pglides arc faimulate " Slip Op. ·Al 8-9,, quctinjArf!bl"bilcl Cax, l! l: tlve Privile1ea 122 tl- al.. * 1313, l l 0 (19(4). Tho Cat.U"t held ftlrtb.er 1 mt do ts en.compassed by 11 c:x. vo privilt:ge" a:r , by dcfinitioll, ot •tpu.bue recafds" but, mth -.rJ a:re ex.ceptcd from tlJ.:.. wmdatory s o utc provisitml of the Rit:Jit io law u .irecord.s which, t · m.e.tie

I:c.

.,. • • t

M.D..(' Gwe::c.or Peim'') .aQQ. Seorata:ty of Staie Deborah L. M.&uko-witz,, 10 op=ne.s.s and acc.ess.lbil ty of • ' 'llJ

· state iO couplr=d th a n=o n that c:::rtam de a:<: t:?n'P'Wd fi j · the Rigll!·to-Knaw Jaw.llllder th omthmiopallt"'"based de of P.fiv1lege

• • • 11' ...

- only guidanor� providccl by'tbe Venllrm.t is that, up= retiriniL the acvi·010r

_i cti=s §'U04(a emyyears

jee Cammilrion

..

The guidelini:s·suik= a b e 'be the desire, on '(ho one h top 11. fall =cl. COl'l'lplcu. record of Governor Pem.i's Ad:aUn.istratian.for th 'b c:.B.t or historim+S auxi. lilc pl.11: a 1S '

rig4t to know, a.n on the oth=t' hiU'Ul, to respst the. public policy flUQ.QI 'tP dc=n cc:ta:iU ru at ·:lrud privileged under tho V cn:iont Comtitution fUld co law.. Speci:lically, tbc guidelfo "

. .

affirm. the p blic's right to aaee.s.s to all of we vrmcts.ciff!=a! c:orre.spondcaac,:C:;vc:n

from eliscloSl.Jie, while at the s.azne time tl3e date fur access to MY executive piiviI g .r:nts

thin official com;sponden= to mmence t= yQQ.hcncerl ,-.....

J. Thepc:rigd ofimiy=uswa31 ehe>mias a.rcas le b\ftbiie.fp:d.od m Q)mpariJan 10 tb= · "e:x.emniveprl e" cl.c•.s period£ used ia ot:i=r (-e.s.. up to 'lWCM fcsderally:. J' a

the P sidentW·lUCo1Q.s A.en:, 44 U.S .. C.S. for'dte ofib;W. cf <tovemor Tho'Jl'WS H. IC.can ofNew Jersey (1982.., 1990), a Ou!deliues tbr J\pcca ta ctov K-:an's OfiS.cial Fapers; and 'thin,y )'Q:'I in Mtuylaml" Po&, af ilie Hal! of c;:gl'cb n1gul. ·this the.Use of Th@. G\lb ri.W FU=s).. ·

.. '

Io Ooxamgr Ho?:'m9 At pan's Offisw �pgndenee

oam==tidtli

Gu1dc1i=i to Public Acee,&

L ·SUbjeet to tbe special tcnus a::Jd condi'tiom cf ri=strict!on set forth in pm-a II, be :ow, ·

Gover.c.or P anis of.fi il! =u=spo.ndence $l'mli be ap=. to the public, in a.Pcordanee wiTh Th: esta'bli hc:d

:n4 AJ'iy porciom of Gcvmor Dean's cffic:ial oo:respan&mee. deter.rai:o=i by (lcrverpor I 15m ...,....,..

.. 'tO be cn.comP&Sai:a PY 'Ye prlvilep ·be ope tl) the public;. in ICCQ with tho establ· .Ul · poli cs and pra of mo Stat.c Archives., au J'ca:wa:ey Ot 2013 .. Prioi;..10 U1at te ti ·.e

. '

A. Gov=nor Doan'& ceutive p d emi shall be the hip of he es and may be housed. md preser'\1 .Punt.lmlttc appt"Opril..18.a.rcbivd by 'Cha S 1 t

Dep cf Buildh:tgs and. Servi or any nor apncy or dapart:tn=m, Ui files f:b t have be sealed aftd e:ppropriately labeled Gld ost"l'= ec.i by th. GovetJl.Qts Oftieo (the: "'swcd

gube.matorial records"). B. O-Ovetnar Dean15 ecutive privileie doe ts slu1ll be " ible g&lly:

t.. to a vali<l Qcur; ord=z; 2. tdanee with 'WrlUe11 b GovemQt Oean; 3. To the staff of.the State Atchiva in so Ar a5 .=y to assu:e archival w:itY

4. Iu the eveut that the: cum=t h been placed tlu: pull do c. Whe:n Gover.oar Dean's ve privilege de>cumcnts becpmci open th=:y slla.U be

ui.nmpted with Gcvi:mo: Dean'a official ecttespm:id.ence within the Archives ..

11 1.2

. . 0 The Secretmy of St.a!e and tll CommiNtohe: ofB s Ind General .S J st all

'tlLltify th= Attemey fl.lllfal oftb.e State ofV t and all ret.SQDAbie-e!for=.tc nm fy' . .

Oovemor Dean in tile =ve:u of 1 requem in aay- fo:on for ac;ess to sealed i\lba rlal· 1rds and shall dofw:i.d 'Ule prlvile&e mid tbS seal asrecd to tbmuih ihis Q.mu. GovcmQl DQlll .

111111

shall be atv the opportunity to particl.par.c m aey Ii'dption over 'tO his sealed

iabernatoriiU rec:ards, Govem.ot Dean and S Pebora.h L. tzjo.la. Ill t1Ua McmQttuvh.mi pf

?"""'"" •

U ing.

Go Ho'\Vat'd .. Dean M.O.

. !);b;J

Approved:

/· 9 () '·

Exhibit 4

claims

Judicial Watch Beca.we no one u above the "law/

NovcnJ.ber 19, 2.003

The Honorable Deborah L Markowitz Secrctmy of State State ofV mmCDt Redstone: Building 26 Terrace Street Drawc::09 Montpclir::r1 VT 05609·1101

Dear Secretary Markowitz:

Under the provisions ofl V.S.A. § 318(3), this leuctserves ai Judicial Wa.tch's appeal ofVeimont State Arcbivim Gregory Sanford2s August 26;, 2003:. response (Encl. 1) to Judicial Watch's Public Records Law Request (Encl 2) of Au.gust 25, 2003. Your determination with respeot to This appeal must be made within five (S) da excepting Sattmiays, Sundaya and legal public holida after r=eipt.

Judicial Watch teq"Uestcd; "'1) The gubcmatorial papers of Govem.or Howard Dem; 2) The deci.sion to seek a tca.-y=ar eal on TM gubematorial papers of governor Howard Dean; 3)The decision to seek a 20-year seal on the gubt::Ill.fltorial papeIS of Goven:inr Howard Dean.. in

The request was uffi.cic.utly ap ific to identify a discrete 'bfld.y of records (gg.bC'.t'IUrtorial papers), directly associated with a. sp,ecifie Vermont rrwe official (Oovauor Howard Peen) holding office for a distinct period oftiltu: (August 1991toJanuary2003) demonstrated by Archivist Sa.nford1s invitation to Judicial Watch ta itispect tbe gu.b=ruatorial JHqJers ofGovemar Dean that have: uot been subject lO of executive prlvil ge.

Judicial Watch is uot iuterested in copying or obtaining copies of Governor Dcan,s records. Rather1 Judicial Watch•a Public Records La.w request asks that Oov=:nar Dem's

Pit.le l of 3

501 School Street. SW • Suite 72.S ., Washinqum.. DC Q0024 ., Tel (202) 64&6172 • Fu-: (200) 646-5199

The Honorable Deborah L. Markowta: Secretary qf State Si.te of Vermont November 19, 2003 gubernatorial papers be made available to it for its review. Judicial Watch also seeks to have these records made available to the ci:d.zens of V erm.ont, the news medi public interest group&, and tba America?J public for their review.

Press repotts mdicato that between 30% to 40% of Governor Dean's gubematorialrecords are beiugwithb.eld from public scrutiDy.i The roughly SS0,000 to 600,000 ,subm:rwmialr rds that are available for public inspection repottediy consist cf routi.nQ carresp .

ccu.tive ordcnl, a.ppointm etc. These docu:me'Jlt$ a:re not particularly u$eful or interesting t , pmions or orgaW.zations wishing to examine: Governor Dean?s record on policy d elopmcnt m illlplemmtati go-vemmce and mww.getncnt.. Given Govc::r.nor Peml, political aspira.tioua tbr the presideneyJ there is a broad-based, compelling public intcr=st in his policy rm4 management:record as govemor of V ennont. In addition to Judicial Watcb, The Boston Glabe a.ud othor organizations have also rcpOnedly n:quested access to all of theae recotds, ineludi:Ag the r being withheld from public i-eview.

In January 2003, when asked why he insisted on keeping such a large portion of bis n�eords dosed to public reviewp Governor Dean told Vermont Public Radio: li'W ell, there are future political considerations. We didn tt want anything =nba.rrassing appeariug :in the p en a1 a critical time in any :firtur endeavor.'112

"'Officers of govcnmtcm are lmSteea aud servants of the people and it is in tbe public interest to enable any person to review and crl'ticizo .

their decisions evau though such examination may cause ineonvenience or e:cibarrassment t•

VermcntArchiviat Gt'egory Sanford cited the same Vetmont la.w to Govcauor Deau:ali legal counsel» David Rocchio, in an official letterhesa.d memorandum dated August 21, 20022 during G egouationsn over the uuprec.edcm.ied and legally void · mnoxa:adum afUn with your office concerning Governor Dean's pa.pen;. Arcbivitrt Sword is on ICCQ;rd stating that Govemor Dean 11 s "Iiambition', is not sufficient grounds for exempting rcr;crds for disclosure,

'Ross Sney 0Washinston Watchdog Group Wants to Force Dem to Open Records,nAssociared Press. Octaber 1, 2003.

:tsarah Schweitzer "Dem fa .Asked to Rel c Gubematcrial Recorda," The Boston Globe, October 2. 2003.

Page2 of 3

because

Tbe Honorable Deborah L. Markowitz Secretary nf State Stau of Vermont November 19, 2003

Likewise.. V erm.ont Deputy Secretary of State William A. Dalton stated in a Septem.bcr 41 200 e--mail that, with respect to Governor Dean's request .. .. even eight years seems exttem.e." _

Further, the withheld records ( to be several hundred thousand pieces of paper) have not even been teViewed, organized or catalogued by Archivist Sanford.. They remain a ''void" in the o.ffici.al record of the state without even an index to &erve Qi a gmde to various subjeets or sovmument functions. Historically spea.k:ins. the Mitrokhin Arohive of the former Soviet Unicm. s KGB intelligenca service is m.orc essible than Govern.or Dcan B recard.3

With regard ta executive privilege claims by Govc:rn.or Dea:n,. the Supreme Court of Vermont has ruled that blanket assertions of :xecutive vilege ..- l.aeking the specificitynecessary to determine specific pulllic disclosure exemptions - a:re unlawful. Additionallyl the court found that the governor could not withhold public records simply complying with the request was difficult or time consuming. See Herald A.ssPClarion, Inc. v. Governor Howard Dsa M.D.816A..2d 469, 476 (Vt. 2002) ..

Consequently. we hereby appeal. ArclliviBt Sanfard's tefu.sal to allow us access to all of Governor Denw:s gubernatorial pap and, in parti ar, those papm-s subject to the January 2003 Memorandum ofUnderstmdin£L and ask that Archivist Sanford and the Stat= of V mmont conform their conduct to the requi.relnm.ts ofVet!llOnt law.

JUDICIAL WATCH lNC.

3 Vasili Nikitich MitfOkhin wotired as chief archivist for the First Chief Directorate, the :foreign intelligc:D.Ce arm of the KGB. Mitroldlln was responsible for checking and sealingapproximately 300, 000 files, allowing him Ullfesnicied access to one ofthe world's mast closely swarded arcbi ves. He lost faith in the Soviet systetn over the years, and was especially disturbed. by the KOB1s systetna.tic silencing of dissidents at home and abroad. Faced 'Wlth toughchoices-stay silau. resi or undermine the S)'$tem. frtml within .... Mitrokhin decided to eompili ·

a record of the foreign operations of the K.Glt Page3 of 3

Exhibit 5

.. un Rp 'ium: e1.1n D.:nanm L.. MA c ..-1u:!fJ Ttm.\IX StM:t S c t PfSt;1 .: Dr w=rcw Mani;pelfc:r. VT 05609· J 40 I W'illhim ·"-· DuJtr n

puty h'11:UUTel: r tm.:n H:?R-1.lfil hnpJtwl.ll\lii·. .111tate. "'t. !ii J ; iCi:l 0. f'Q

St:atc: of Vennonc Ptr=c;tt:l'r& Prof 1:1.llJ!ionlll R !lUIUtior1 Office gf rile Secretary of State

AugUSt 21 2002

TO: D vid Rocchio, Governors Counsel

FROM; Gregory Sanford, State Archivist " "

RE: Executive privilege questions

You asked-me to funher develop the idea that executive privilegeclosures might not be bound by a date cenain, but rather reflect the Governors status (i.e., being Presiden presidentfal candidate) at the time the records would normally pe open under a memorandum of understanding.

What we discussed was the possibility of adding to the memonmdum of agreement:

"In the event Governor Dean is President or a presidential candidate at the time the agreed c ccutive privilege closure ends, the closed records will remain closed for an additional __years."

Having proposed that approach in our initial brainstomting session, I do not support it. In the same spirit of freely exchanging ideas, let me explain why.

--The open records law (1 V.S.A. §315) declares ''it is in the public interest to enable any person to review and criticize [the .officers of government] decisions even though such examination may caµse inconvenience or embarrassment.'1 So the scenario we were discussing--use . of the gubernatorial records to embarrass a national campaign--is one not recognized by Vermont law.

The '1Willie Horton" example was raised. It is an unforrunate realicy ·

that arrack ads have become part of our political culture. It would be impossible to anticipate how opponents might mis/use even the most innocuous of documents. Setting new baniers to access in an anempt to anticipate attacks would be1 ai best, unfonunate. Ironically, such baniers would probably become an issue, detracting from the Govemor1s proud record of achievement (the reality of this posibility is evidenced by controversy surrounding President Bush's gubernatorial records:i Mayor

,,

Giuliani's records, and records of fonner Virginia Governor Gilmore; see attached sampling of clippings) .

..... 3 V.SaA. §4 and Killington v. Lash address sitting governors; to begin building post-gu ematorial controls into memoranda of understanding raises legal issues and is bad precedent. President Bush(s executive order weakening the Presidential Records Act by extending the powers of incumbent and fonner presidents to delay access is cunently subject to congressional hearings and are being challenged in the courts,

--President Bush did not use his election to pl.lt restrictions ou his gubernatorial recoTds, beyond those allowed by Tex.as law. The Texas Attorney General recently furthered clarified Mr. l3ush's gubernatorial records by declaring them "state records'l subject to the Texas Public Information Act.

Texas law1lo longer requires gubernatorial records to be clepcsitcd with the secretary of state; the law was changed under Governor Burah lo allow deposit at any state depository (Tex.as law allows the designation of official state depositories in addition to the state archives)

In the face of public outcry, Governor Bush's records were recentlyrmioved from his fathers presidential library back to the Texas State Archives for review under the State's open record law.

The Texas Interim Memorandum of Understanding, by the way, offers · a deftniti.on af "personal papers"--as distinguished from gubernatorial

records. Personal papers are: "all material of a private or non•publiccharacter which do not relate to:i have an effect upon,, or arise out of the carrying out of the constitutional statt.ltory, or other official duties of the ,Governors office and for which no public reso rces or funds were expendedin their creation or maintenanee. ,.

Again the reality is that gubernatorial records are part of our coUcctive institutional (state government) records and thus are important to government continuity across administrations. The numerous initiatives and actions of Governor Dean will continue to shape state government for. years to come. To assure that those programs continue as intended it is important to put as few restrictions on access as possible. If Dean Administration records are inaccessible, if the intent of policies cannoi be documented.a subsequent administrations might have an easier path imposing th ir own interpretations on Governor Dean's initiatives and eliminating them.

As always, I am available for discussion.

Exhibit 6

September 4, 2002

TO: Deborah. Bill

FROM: Gregory

RE: Governor Dean's cords

To recap my (!OiJ.Versation with David Rocchio yesterday;1 ) I suggested/we agreexi that personnel records should be treated under the generalrecord schedule for a.U agencies {transfer to Middlesex, film1 hold fifty years) and should not be mcluded u "official a>m:spondmce. ,, 2) Pardons are pu.blic records: supponing m im (evaluatte>m of the risk of pardoning or p4lto1ing a particular person) bas traditionally been treated as a permanently exemptrecord. I agreed to cbeck any notes from previous govemon zmd sussemed tbat tht! records be deposited with ColTcctions. David seemed to suggest that the records should be d tr0yed.3) Governors hotline: Treat as established by general record schedule ('1ispoae of routine: messages; messagl!S containing s'libstantive information should be: tiled with records that pertain io the issue. David. filrther argu lb.at vpice mail was not "correspondence.i11 while I suggested the public record definition is what should be guiding the discussion, not the

· undefined official correspondence. We agreed to disagree on the latter point. 4) Oovcraors Couna l; Jgwyer/client privile5e. t>avid feel& that uncie:r professioml ethics he could not make those records open at anytime. We have not traditionally received them.. Perhaps file with AG. 5) On-going le&zj issues. File with AG for incoming adminima.ticn. 6) Confidcmtia!ity of corresponcl=nts {civil unions). David reiterated that the Office redacted the names since many {some?) gay people wrote in support of civil unions. but said they did not want to be outed in their communiiy. I argued thit there was no expectation of privacy when a person wrote! ta the Gavemor an policy issues. No agreement. 7) David said they would like to start transfer of records in a: few weeks. I will suggest that they start by smding ua ths apen recordsJ exempt reeo:nis. while remaining under o ur administrative c.ontrolp shoiild go to Middlesex until. open o r we have ad.equate space 8) David reported lha.t in hi initial conversation with tho Oovernor a closure of 24 years was mentioned. David i not wedded to thal, but ne to reach agreement on a closure period. It was suggested that the alt=rna.tive to an acceptable time period would be io permani:ntly close the reegr4s u.nd1:r 1 V.S.A. 3 l 7(b) and other ex mption&. l noted that the prc;;idential records act =ts a l l year closure period so 24 yea.rs is excessive (he noted t t some st tes a.now 24 year dQ�tm:s and that NH simply dest;oy gubcmatoriaJ records-I will check with ihe NH archiviPt on that). I noted my disadvantage in not knowing what spacific types ofinformaticm they were considering closing, David po.sited a personal comment by the· governor on an indiVidu.a.1 with wngm the Office had to work.

Reality check '\:Vhile David and I agreed earlieir that 11emb entu (ala Willie Honan type a.ttack ads) was not grou.nds for exemptiotlt we ue really talking about 11 ambition. n

By the by, I fiuther noted that Willie Horton ads woI"c hased on a clearly public :recor not one tha.t would be considen=d exeinpt. and that current political charges over Jim's managing of the Treasurers Offiee ct Doug's uu financial wcrth were also bq=<J on

·public records) .

Without conccdillg that a govemars post ..administrati n political ambitions an.'l a. legitim.ate basis for closurel can we offer, in the int=rcst of movb:lg forward.. ei. i yems? That would mean that the records woiild become open in 2011. If Govw Dean beca:mc president in 200S he would either be in his econd tenn or out cf offi.c:. If be failed in 20041 that would mean he would have ha.d an opparru.nity to nm again in 2008 and, if sur::cessfuL be in the second year oflus administration.. If he ran i&1ld failed again in 2008. but wanted to run in 2012 it would. mean that he was Harold Stassen (and what. he dignine years befo-re would uot·be a key inue).

Exhibit 7

·condition.tbar: �, '&ball be open

e SIJiJcims :26 T Snui

Oniiwer 09 M!lntpclier, V'f 05609· l l01 Wilham A. Da.lti:n

.Ocpi&cy S Jc:s..sica a. Porrer

P r, ·Pmf 1 111 ricn stau af Vt.ii-anent Offict of the S rrtary Siau

I ' '

November 26 2003

Christopher Farrell Judicial Watch 50 l School Street, SW Wa:mngton, DC 20024

Re; Public Records .Request Appeal Dear Mr. Farrell:

This is a response tQ your appeal of Vermont State Archivist Gregory Sanford1Si August 26, 200 i reply to Judicial Watch :; pW>lic records law :request.

In your November 19, 2003 letter you sougb:t access to the guberaa.torial papers of Govemor Howard Dean. As stated in Mr. San.ford s August 26 letter to YOUa you a:od your staff are welcome t.o inspect the several hundred thousand pages of Governor Dean records tha.t are already open ta the public. You may contact Mr. SanfoTd and arrange to have access to those fccords a.t any time during norm.al business hours

Other Governor Dean records were placed in the beping ofmy office and were accepted by mJ office lllldet special terw.s pursuant to 3 V.S ..A... § l l 7(a)(9). These tenns are set out in the Memorandum of Understanding that Mr. Sanford providec\ to you last 2Ulllillet". In substallce,

. Governor Pean asserted exe tive privilege respeeti+lg these dc em.t.s and. placed these d9cuments in the- State archivea on' the ·to the public > •. .

commencing on January l 0., ·20 1 3."' . Mr. Sauford propemly deriiecl your request for imm.ediat.e access to these documc:r.n:s. ·

You have styled your letter as an appeal of Mr. Sanford• B do sion 1.mder the provisiom of 1 V.S.A-. § 3 l 8(a)(3 VIJ However, access t.o gubernatorial papers givento my office pursuant to 3 V.S.A. § l l 7(a.)(9) is canttolled by the provisions ofthat statute and by the special ter.tnS and cowiitions of the Memorandum ofUnderstanding. It is doubtful that l V.S .A. § 3 18(a)(3) and other provisions of the aeceas ro records statutes were intended to tru:w.p the specific provisions of 3 V.S .A. § 1 17(a)(2).

Even if rhe public records law did apply. the puplic records law bas an exception for ·records whi if made public pursuant to this subehap=-ll would cause the custodian to violate any

Response t0 Judicial War.ch Appeal Page 2-

sta\J.l.tcn:y or comm.on law prtvilege.111 1 V ..S.A. § 3 l 7(c)(4). The Vimnout caurt:s have recognize jthat the executive privilege is a privilege under this subdiviston. Govemor D ean has aas d

ecuti.ve privilege Vlith I"espect to the gubematorial records that were delivered to my Office under seal. Therefore tb.ese records are not public records :under the access tQ r cord::i statures.

PleaJie be advised that V e:rw.out's public records smmtes include provisious for judicial review under l V.SA § 3 1 9.

SincorelyjJ

Deborah L. Markowitz SeGietary o! State

cc; Mike MeSrume., Assistant Attnmey General