232511 Investments, Ltd. v. Town of Stowe Development Review

232511 Investments, Ltd. v. Town of Stowe Development Review (2004-482); 
178 Vt. 590; 878 A.2d 282

2005 VT 59

[Filed 09-May-2005}

                                 ENTRY ORDER

                                 2005 VT 59

                      SUPREME COURT DOCKET NO. 2004-482

                              APRIL TERM, 2005

  232511 Investments, Ltd. d/b/a 	}	APPEALED FROM:
  Stowe Highlands	                }
                                        }
       v.	                        }	Lamoille Superior Court
                                        }	
  Town of Stowe Development Review	}
                                        }	DOCKET NO. 75-4-04 LeCv

                                                Trial Judge: Howard E. 
                                                             Van Benthuysen

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  This is a public records act case in which plaintiff sought
  the disclosure of a letter sent to the Town of Stowe Development Review
  Board (DRB) from its attorney, allegedly giving the DRB legal advice that
  formed the basis of the DRB's denial of plaintiff's development project.
  The DRB denied disclosure on the ground that the letter was exempt pursuant
  to 1 V.S.A. § 317(c)(4), which exempts records that are otherwise protected
  from disclosure by any common law privilege such as the attorney-client
  privilege. The trial court, without viewing the letter in camera, agreed
  that a letter setting forth legal advice to the DRB was exempt under
  subsection (c)(4), and upheld the DRB's nondisclosure decision.  Plaintiff
  appealed.  We reverse and remand for the reason that no evidence submitted
  in support of summary judgment showed that the letter was, in fact, legal
  advice-a contention that plaintiff disputes.  And with no review by the
  trial court, the court's decision on summary judgment lacked a basis in
  undisputed material fact.  V.R.C.P. 56(c)(3) (summary judgment appropriate
  only when there is no genuine issue as to any material fact).

       ¶  2.  The undisputed facts submitted in support of summary judgment
  showed that the DRB apparently asked its legal counsel for an opinion
  letter on plaintiff's development project, to be issued after reviewing
  various memoranda submitted by plaintiff and parties in opposition to the
  development.  The DRB chair received a letter from the attorneys and
  distributed it to the other members of the DRB at a public hearing. 
  Plaintiff's project was then denied.  Plaintiff requested a copy of the
  letter, which the DRB voted to keep private, asserting the attorney-client
  privilege.  Plaintiff sued and the matter came before the court on
  cross-motions for summary judgment.
   
       ¶  3.  The critical fact, whether the letter was actually legal
  advice, was disputed.  In support of its cross-motion for summary judgment,
  the DRB's list of undisputed facts included the assumption that the letter
  was legal advice.  Plaintiff did not admit this fact and the DRB did not
  fill the gap by submitting an affidavit of anyone with personal knowledge
  of the letter's contents.  The problem might have been cured if the trial
  court had viewed the letter in camera, which the DRB was apparently willing
  to allow.  Instead, the trial court issued a decision on summary judgment
  relying on the assumption that the letter was legal advice because the
  DRB's request that prompted the letter was for legal advice.  We reverse
  and remand so that the trial court may view the evidence in camera and
  decide whether any part or all of the letter is legal advice within the
  meaning of the exemption.  

       ¶  4.  Plaintiff raises a second issue on appeal, that the trial
  court erred in concluding that the DRB did not violate 1 V.S.A. § 313(a)(6)
  by considering a document they contended was confidential and not subject
  to disclosure in the course of a meeting that was otherwise a public
  meeting.  Because the DRB did not go into executive session, plaintiff
  claims any documents they considered at the public hearing should be
  disclosed, and the DRB's actions violated the Open Meeting Law, 1 V.S.A. §
  312.  Plaintiff urges us to read these statutes in pari materia with the
  Public Records Act to conclude that the DRB violated the Open Meeting Law. 
  This argument is without merit.

       ¶  5.  Nothing in the Open Meeting Law precludes the DRB, in a
  public meeting, from considering documents to which an exemption may
  ultimately attach.  Section 313(a)(6) of the Open Meeting Law gives the DRB
  a right to go into executive session to have a discussion about a
  confidential document.  That does not mean that the DRB's failure to go
  into executive session automatically renders anything in the files of the
  members or distributed at the public meeting for consideration by the
  members subject to disclosure.  Moreover, 1 V.S.A. § 312, pertaining to the
  right to attend meetings of public agencies, does not set forth any such
  right, even if we read all of these statutes in pari materia.  Plaintiff's
  case citations from other jurisdictions do not support its argument on the
  construction of these statutes.


       Reversed and remanded.    


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned