Supreme Court hears arguments on access to information

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(Host) The Vermont Supreme Court heard two arguments on Monday involving access to information. One centered on former Presidential candidate Howard Dean’s decision to keep many of his gubernatorial records sealed. The other concerned a television station’s refusal to give authorities videotape of a riot on the University of Vermont campus.

VPR’s Steve Zind reports.

(Zind) Before he left office Howard Dean turned over dozens of boxes of papers to the state archives, with the understanding that they would remain sealed for ten years. A previous Supreme Court decision gives the governor the right to invoke executive privilege to keep some documents confidential.

During the Democratic presidential campaign the advocacy group Judicial Watch, filed suit to force the state to make all of Dean’s papers public. The group won a round in lower court but the state appealed.

Monday, Judicial Watch Lawyer Andrew Manitsky told the court that Dean’s decision was motivated by self-interest. In an exchange with Justice John Dooley, Manitsky said Dean hasn’t proven that the documents he wants sealed are sensitive enough to be kept from the public.

(Manitsky) “You can’t just say ‘executive privilege’ and make it so. What you’ve got to do is specifically identify the documents for which privilege is claimed, you’ve got to explain why the documents are protected by the privilege, all of this has to be supported by an affidavit.”
(Dooley) “Now is this realistic? You have to do all of this before you leave office, I take it.”

(Zind) Lawyer Mark DiStefano argued on the state’s behalf.

(DiStefano) “There’s no evidence in the record that any governor has ever generated a list that would include that kind of detailed information.”

(Zind) DiStefano said if Dean is unable to invoke executive privilege to keep the papers sealed it will hinder future governors in their efforts to formulate policy.

The court also heard arguments in a case involved a videotape made by WCAX television of a disturbance by University of Vermont students following last fall’s Red Sox defeat over the Yankees in the American League Championship. Students set fires and destroyed school property. Authorities subpoenaed the unaired videotape of the event.

WCAX took the matter to court and prevailed. The decision was appealed. Much of the discussion focused on whether compelling the station to relinquish a tape of a public event violated press freedoms. Chittenden County State’s Attorney Bob Simpson drew chuckles from some justices when he said there’s a clear distinction between a reporter who is an eyewitness to criminal activity and a reporter who is trying to protect confidential sources.

(Simpson) “I don’t think this is a Woodward and Bernstein moment here. (Sound of laughter.) There is a riot going on here at the University of Vermont.”

(Zind) In its ruling the lower court said that authorities had failed to exhaust other means of finding out who participated in the disturbance. Simpson said the videotape is the best evidence available.

Lawyer Eric Miller represented WCAX. Miller said the press should be protected – whether it’s gathering information from private sources or public events.

(Miller) “If the press is subject to those subpoenas, it’s going to create incentives not to cover controversial events, not to retain evidence that might later prove relevant for fear of being dragged into litigation.”

(Zind) The Supreme Court was holding its annual session at the Vermont Law School in South Royalton.

The session was disrupted when it began by a man who said four of the five justices should step down in part because he claimed there was no legal proof they had taken the oath of office. The man was arrested and charged with disorderly conduct. State police identified him as David Maunsell of Hardwick.

For Vermont Public Radio, I’m Steve Zind in South Royalton.

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