Judge rules against sealing Dean’s records

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(Host) A Vermont judge has ruled that the state’s procedure to seal the records of former governor Howard Dean is not valid and must be changed. The decision calls for an indexing of all records and requires Dean to detail why a specific document should be sealed under the doctrine of executive privilege.

VPR’s Bob Kinzel reports.

(Kinzel) When Governor Howard Dean left office in January of 2003, his legal counsel negotiated an agreement with Secretary of State Deb Markoiwtz to seal roughly half of his gubernatorial papers for a period of 10 years.

While previous governors had sealed their papers for a six-year period, Dean told reporters at his final press gubernatorial news conference that he chose ten years in case there was anything that could prove to be embarrassing during his future political endeavors – like running for president. As the issue gained prominence in the Democratic presidential campaign, the agreement was challenged by Judicial Watch, a legal rights organization based in Washington D.C.

Washington County Superior Court judge Alan Cook ruled that neither the secretary of state nor the governor had the authority to arbitrarily seal 145 boxes of records covering Dean’s 11 years as governor. Instead, the court called on the parties to index all 600,000 documents in question and to provide information on why any of the records should be sealed under the executive privilege provision of Vermont’s public records law. Other groups would then have an opportunity to challenge the sealing of any documents.

Judicial Watch director Tom Fitten says his group is very pleased by the court’s ruling:

(Fitten) “The question is, what is the controlling legal authority? Is it Howard Dean and bureaucrats in the state of Vermont? Or is it the public records law of Vermont that controls how records are dispensed and how the public gains access to public records? And the court ruled Governor Dean is not the controlling legal authority here, it’s the law of Vermont. So he’s being held accountable to the law.”

(Kinzel) Fitten says his organization will be interested in some specific documents that it believes have been sealed:

(Fitten) “We started off fighting him on principle but there are many decisions Governor Dean made that there are questions about. For instance, there have been complaints about Governor Dean’s dealings with Enron and Ken Lay during his administration.”

(Kinzel) Secretary of State Deb Markowitz defended the process that was used in this case but she says her office will begin indexing the documents in question if the court orders that action. Ultimately, Markowitz thinks the issue should be decided by the Vermont Supreme Court:

(Markowitz) “I think it’s a very important principle of law. So I would not be surprised if that’s the course that we ultimately take. There is a lot of support, I believe, for the idea that executive privilege permits a MOU process – a memorandum of understanding – with some temporary closures as part of it, and that it puts in place an appropriate check and balance. So I think it’s a good thing and we’ll ultimately see if the courts agree that it’s permissible under our law.”

(Kinzel) Markowitz says it will take her office several months to index all of the sealed documents, unless the Legislature appropriates additional funds to hire more staff to work on this project.

For Vermont Public Radio, I’m Bob Kinzel in Montpelier.

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