Energy Pol'y Advoc. v. Att'y Gen. Off.

308 A.3d 456

2023 VT 43

ENERGY POLICY ADVOCATES

v.ATTORNEY GENERAL’S OFFICE

No. 22-AP-202

Supreme Court of Vermont.

April Term, 2023

August 4, 2023

On Appeal from Superior Court, Washington Unit, Civil Division, Robert A. Mello, J.

Matthew D. Hardin, Washington, DC, for Plaintiff-Appellant/Cross-Appellee.

Susanne R. Young, Attorney General, and Eleanor L.P. Spottswood, Solicitor General, Montpelier, for Defendant-Appellee/Cross-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

WAPLES, J.

¶ 1. In this public-records appeal, we are called upon to determine the applicability of the work-product doctrine to communications between different state attorney general offices pursuant to executed common-interest agreements. Plaintiff Energy Policy Advocates challenges the trial court’s conclusion that these communications were protected from disclosure, and further, that the trial court erred in declining to grant in-camera review of these documents. Additionally, plaintiff asserts the trial court improperly granted only half of its fees despite substantially prevailing. The Vermont Attorney General’s Office (AGO) cross-appeals the trial court decision granting plaintiff any fees, argu- ing plaintiff is not entitled to fees as it did not substantially prevail. For the following reasons, we affirm the trial court decision with respect to the withheld documents and reverse regarding the award of attorney’s fees.

I. Facts and Procedural History

¶ 2. Plaintiff is a nonprofit corporation with the stated mission of ensuring government transparency regarding energy and environmental policymaking. Plaintiff attempts to accomplish this mission through requests for information from state governments pursuant to statutory procedures. Here, plaintiff filed requests pursuant to the Public Records Act (PRA), 1 V.S.A. §§ 315-320, with the AGO, which were subsequently denied, and then administratively appealed. These requests sought copies of any "common[-]interest agreements" the AGO entered into mentioning carbon dioxide, greenhouse gas emissions, or National Ambient Air Quality Standards, and any resulting communications within their scope. Following denial of its administrative appeals, plaintiff initiated litigation in each matter, resulting in four separate actions which were then consolidated into one.

¶ 3. The AGO moved for summary judgment, asserting that the agreements and their related communications were protected by both the work-product doctrine and attorney-client privilege, rendering them squarely within the PRA exemption for statutory or common-law privileges, 1 V.S.A. § 317(c)(4). In conjunction with its privilege claims, the AGO provided the court with an index describing the withheld documents and the basis for their privileged status. Plaintiff opposed the motion, and requested the opportunity to file supplemental briefing regarding both the common-interest doctrine, and subsequent rulings in another case plaintiff is litigating in Minnesota, which the trial court allowed. Plaintiff also moved for in-camera review of a number of documents withheld by the AGO, including seven common-interest agreements referencing the above-mentioned terms. The trial court granted incamera review as to the seven common-interest agreements but deferred its determination regarding the other documents.

¶ 4. In a July 2021 order, the trial court partially granted the AGO’s motion for summary judgment, ordering it to produce only the seven common-interest agreements. The court reasoned that the work-product doctrine sufficiently shielded the communications between AGOs of different states, declining to evaluate the attorney-client privilege or common-interest doctrine. However, the court did decline to shield the agreements themselves, noting that they revealed nothing about the parties’ legal interests beyond the common interest at the heart of the agreement. The trial court also rejected plaintiff’s arguments that the AGO failed to show that it identified all responsive documents and that the AGO’s work-product argument was overbroad. It noted that nothing in the record indicated there should be concern over the adequacy of the AGO’s record search. Further, it determined that plaintiff's legal-verses-political dichotomy—namely that the AGO was improperly using the work-product doctrine to veil its political activities rather than legal work—was a false dilemma because the work-product doctrine relied on no such distinction. The AGO moved for entry of final judgment, which the trial court granted in March 2022.

¶ 5. Plaintiff then sought attorney's fees and costs, arguing that it had substantially prevailed under the PRA, 1 V.S.A. § 319(d)(1). The trial court partially granted plaintiff’s motion, determining that plaintiff substantially prevailed with regard to the common-interest agreements, but that the AGO substantially prevailed with regard to the underlying communications. In light of this, the trial court awarded plaintiff 22.85 hours of fees, approximately half of that spent on the underlying litigation, and 11.6 hours of "fees on fees" for seeking the fee award, for a total of $12,381.92 inclusive of costs. Plaintiff then filed this timely appeal in which it challenges the trial court’s withholding of the records it sought, refusal to order in-camera review, and failure to award plaintiff full fees and costs. The AGO filed a cross-appeal in which it challenges the trial court’s award of any fees and costs, arguing that plaintiff did not substantially prevail under the PRA fee-shifting provision.

II. The Public Records Requests

[1–3] ¶ 6. "We review a decision on a motion for summary judgment de novo, employing the same standard as the trial court." Gordon v. Bd. of Civ. Auth. for Town of Morristown, 2006 VT 94, ¶ 4, 180 Vt. 299, 910 A.2d 836. To prevail, the moving party must demonstrate that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Id.; see also V.R.C.P. 56(a). However, "[w]e apply a deferential standard of review to trial court rulings on discovery, which are left to the sound discretion of the trial judge." Schmitt v. Lalancette, 2003 VT 24, ¶ 9, 175 Vt. 284, 830 A.2d 16. As with other matters involving the abuse-of-discretion standard, "we will not disturb discovery rulings on appeal unless that discretion has been abused or withheld entirely." Id.

[4–7] ¶ 7. The PRA was enacted to provide for "free and open examination of records" consistent with the Vermont Constitution. 1 V.S.A. § 315(a). In acknowledgement of this, the Court’s analysis of the PRA "represents a strong policy favoring access to public documents and records." Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 10, 177 Vt. 287, 865 A.2d 350. However, the PRA also recognizes that "[all] people … have a right to privacy in their personal and economic pursuits, which ought to be protected," 1 V.S.A. § 315(a), and it is "not meant to allow an end-run around discovery rules or determinations." Shlansky v. City of Burlington, 2010 VT 90, ¶ 8, 188 Vt. 470, 13 A.3d 1075. Exceptions to the general policy favoring disclosure are found in 1 V.S.A. § 317(c), and relevant here, include where disclosure would "cause the custodian to violate any statutory or common law privilege" aside from the deliberative process privilege. Id. § 317(c)(4). "We construe these exceptions strictly against the custodians of records and resolve any doubts in favor of disclosure." Wesco, Inc., 2004 VT 102, ¶ 10, 177 Vt. 287, 865 A.2d 350. "The burden of showing that a record falls within an exception is on the agency seeking to avoid disclosure." Id.

¶ 8. Vermont Rule of Civil Procedure 26(b)(4) protects from discovery documents and tangible things "prepared in anticipation of litigation or for trial" unless the requesting party can show a substantial need and an inability to procure the information by any other means without undue hardship. Materials containing "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party" regarding the litigation are absolutely protected from disclosure. V.R.C.P. 26(b)(4). While adoption of the Vermont Rules of Civil Procedure codified the work-product doctrine, this Court has held that its existence at common law predated these rules. Killington, Ltd. v. Lash, 153 Vt. 628, 644, 572 A.2d 1368, 1378 (1990) ("The Reporter’s Notes suggest that the principles underlying Hickman [concerning the work-product doctrine] would have been applied by this Court even prior to the adoption of the present Rule 26, and we agree." (citing Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947))).

[8–10] ¶ 9. "The attorney-work-product rule in Hickman established a qualified privilege for witness statements prepared at the request of the attorney and an almost absolute privilege for notes taken during a witness interview." In re PCB File No. 92.27, 167 Vt. 379, 382, 708 A.2d 568, 570 (1998). Additionally, "where an agency appears as a party in a contested administrative proceeding, the attorney’s work-product doctrine should be applied as if the action were in a court." Killington, Ltd., 153 Vt. at 647, 572 A.2d at 1379. "After Killington, it is clear that the Vermont common-law, work-product privilege protects notes and summaries of witness interviews … and we so hold." PCB File No. 92.27, 167 Vt. at 382-83, 708 A.2d at 571. Like the attorney-client privilege, the work-product protection can be waived where the party claiming the privilege had previously disclosed the document in a way which substantially increases the possibility of its adversary obtaining it. Hartnett v. Med. Ctr. Hosp. of Vt., 146 Vt. 297, 299-300, 503 A.2d 1134, 1136 (1985).

¶ 10. In attacking the trial court’s application of the work-product doctrine, plaintiff's brief can be boiled down to roughly the following arguments: (1) the trial court erred in applying the...