MONTPELIER, Vt. – More than two years after he left the governor's office to make his unsuccessful run for the presidency, the fight over public access to Howard Dean's (search) gubernatorial records is coming before the Vermont Supreme Court.
Monday's hearing is on the state's appeal of a ruling that 86 boxes of records Dean sealed when he left office in 2003 are instead presumed to be open.
Superior Court Judge Alan Cook (search) ordered Dean and the state to identify each of the hundreds of thousands of documents in the boxes and say why each should be covered by executive privilege (search).
Dean, Secretary of State Deborah Markowitz and Attorney General William Sorrell had agreed in a memorandum of understanding when he left office in January 2003 that the records would be sealed for 10 years -- the longest period any Vermont governor had asked that records be off limits.
Dean, newly elected chairman of the Democratic National Committee (search), told reporters in early 2003 that he sealed the records because "we didn't want anything embarrassing appearing in the papers at a critical time in any future endeavor."
The Washington-based group Judicial Watch (search) sued to gain access to the records, saying the state public records law grants no exemption for potential political embarrassment or a thwarting of ambition.
"Dean's political aspirations and his desire to prevent anything from ruining them are not sound arguments for secreting such an enormous quantity of government documents from the public," said Thomas Fitton, president of Judicial Watch.
In briefs filed at the Supreme Court, the state argues that allowing governors to seal their records for a certain number of years after retirement is proper, and encourages governors not to destroy sensitive materials before sending papers to the archives. The strategy ensures "that the public will eventually obtain access to valuable archival documents," wrote Assistant Attorney General William Griffin.
Also at issue is a matter of money. Vermont's public records law allows state offices to charge for copies of records, and there is a debate over whether that means they can charge for merely viewing, rather than copying, records or whether they can charge for the time state lawyers spend examining documents to see which ones can be released.
After the Superior Court order last year, the attorney general's office said it would charge $168,750 just to create an index of Dean's records.
Dean was not known as a fan of public access when he was governor, and he repeatedly squabbled with media organizations seeking access to his daily schedule. Last month, he requested a media blackout of a debate in Portland, Ore., with top Pentagon adviser Richard Perle (search), then quickly changed his mind after news agencies complained.