kramer v. bd of educ ( 2024 )

Vermont Superior Court
Filed 02/0 24
Washmgton nit
VERMONT SUPERIOR COURT £3: CIVIL DIVISION
Washington Unit Case No. 22-CV-03875
65 State Street
f1
Montpelier VT 05602
802—828—2091
WWW.Verm0ntiudiciarV.0rQ
Christopher Kramer V. Board of Education
Opinion and Order on Cross-Motions for Summarv Judgment
In response to Plaintiff Christopher Kramer’s request for public records,
Defendant the Vermont State Board of Education has Withheld a subset of responsive
records that it contends are subject to attorney—client privilege and, thus, exempt from
production under Exemption 4 (1 V.S.A. § 317(c)(4)) of the Public Records Act (PRA), 1
V.S.A. §§ 315—320). The parties have filed cross-motions for summary judgment
addressing the question of privilege. In his motion, Mr. Kramer also argues that he is
entitled to his legal fees in this case because, after he filed the complaint, the Board
voluntarily produced some records that it had not produced earlier. The Court makes the
following determinations.
Summary judgment procedure is “an integral part of the . . . Rules as a whole,
which are designed ‘to secure the just, speedy and inexpensive determination of every
action.” Morrisseau v. Fayette, 164 Vt. 358, 363 (1995) (quoting Celotex Corp. v. Catrett,
47 7 U.S. 317, 327 (1986)). Summary judgment is appropriate if the evidence in the
record, referred to in the statements required by Vt. R. Civ. P. 56(c)(1), shows that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)
(summary judgment will be granted if, after adequate time for discovery, a party fails to
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make a showing sufficient to establish an essential element of the case on which the
party will bear the burden of proof at trial). The Court derives the undisputed facts from
the parties’ statements of fact and the supporting documents. Boulton v. CLD
Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A party opposing
summary judgment may not simply rely on allegations in the pleadings to establish a
genuine issue of material fact. Instead, it must come forward with deposition excerpts,
affidavits, or other evidence to establish such a dispute. Murray v. White, 155 Vt. 621,
628 (1991). Speculation is insufficient. Palmer v. Furlan, 2019 VT 42, ¶ 10, 210 Vt. 375,
380. Where, as here, there are cross-motions for summary judgment, the parties
opposing summary judgment “are entitled to the benefit of all reasonable doubts and
inferences.” Montgomery v. Devoid, 2006 VT 127, ¶ 9, 181 Vt. 154, 156.
I. Timeliness of Mr. Kramer’s Motion for Summary Judgment
The Board objects to the untimeliness of Mr. Kramer’s motion for summary
judgment and requests that it be denied for that reason. Mr. Kramer has not attempted
to justify his noncompliance with the filing deadline and has not provided any reason
why the requested relief should not be granted.
According to the original February 2023 scheduling order, pretrial motions were to
be filed no later than May 19, 2023. On May 18, the Court extended that deadline to
June 9. The Board then filed its motion for summary judgment. The Court then granted
three extensions for Mr. Kramer to file any opposition to the Board’s motion. None of
those requests or extensions included any mention of extending the time for Mr. Kramer
to file his own motion for summary judgment. His July 10 request states that “the Court
should extend the time for Plaintiff to oppose Defendant’s motion for summary judgment
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by 60 days.” His September 8 request states that “the Court should extend the time for
Plaintiff to oppose Defendant’s motion for summary judgment to October 1.” And his
October 2 request states that “the Court should extend the time for Plaintiff to oppose
Defendant’s motion for summary judgment to October 6.” On October 6, Mr. Kramer
filed his opposition to the Board’s summary judgment motion. Along with it, he filed his
own motion for summary judgment.
Mr. Kramer’s cross-motion is long out of time under the scheduling order, and he
has come forward with no explanation for the delay. Ordinarily, the Court would deny
the motion for that reason alone. See Vt. R. Civ. P. 16.2 (“When a party fails to obey a
scheduling order, the court may impose the sanctions provided in Rule 37(b)(2)(B) or (C)
or, if the failure is to appear for trial as directed, dismiss the action or enter a default.”);
Carpenter v. Cent. Vermont Med. Ctr., 170 Vt. 565, 568–569 (1999) (trial court did not
abuse discretion by enforcing the scheduling order).
In this case, however, denying Mr. Kramer’s cross-motion on that basis would be
counterproductive, and the Court declines to do so. Mr. Kramer’s cross-motion presents
two matters: (1) whether the records were properly withheld as privileged, and (2)
regardless of the arguably privileged records, whether he is entitled to legal fees because
the Board voluntarily produced some records after litigation began. The first issue is
fully briefed in the context of the Board’s motion, so denying Mr. Kramer’s motion for
untimeliness as to that matter would be an empty gesture. Denying his motion as to the
request for fees would accomplish nothing other than to leave that issue to be decided
even though it also has been fully briefed by the parties. Accordingly, while the Court
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does not excuse Mr. Kramer’s unexplained lateness, it will address the matters presented
in his summary judgment motion.
II. Whether the Withheld Records are Privileged
Mr. Kramer sought from the Board all records in its possession that were
generated “between January 1, 2020 and September 8, 2022 that relate to the question of
the withdrawal of the town of Ripton from the Addison Central School District, the
formation of the Ripton School District, the assignment of the Ripton School District to a
supervisory union, the question of whether the Ripton School District should be
designated a supervisory district, or the preparedness of the Ripton School District to
operate as a supervisory district.” In response, the Board evidently provided access to a
substantial volume of records.
It has withheld 143 records, however, which are documented in a Vaughn index
that is in the record as Exhibit A to the parties’ stipulated statement of undisputed facts.
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). According to the index, the withheld
records appear to be Board communications with legal counsel, mostly Attorney Donna
Russo-Savage. The index also reflects that these records have been withheld as
privileged under 1 V.S.A. § 317(c)(4).1
Mr. Kramer contends that these records have been withheld in error because: (1)
to the extent that the lawyers who counseled the Board were employed by the Agency,
rather than the Board, no attorney–client relationship ever could have arisen; and (2)
1 To the extent that the Board now claims that at least some of the withheld records also
may be exempt from the PRA as records relating to its deliberative processes, the parties
have not briefed that issue in detail; and, given the Court’s ruling below, it is
unnecessary to address it in any event.
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regardless whether any attorney–client relationship could have arisen, the undisputed
facts show that none did.2 The former argument misapprehends the law; the latter
misapprehends the facts.
A. Whether Attorney–Client Relationships Could Have Existed
Mr. Kramer’s first argument is substantially as follows. The Agency and the
Board are separate entities with potentially disparate views. Two of the attorneys with
whom the Board consulted were employed by the Agency. Those attorneys’ roles within
the Agency necessarily created a conflict of interest, at least during the relevant time, as
to any representation provided by those attorneys to the Board. An attorney–client
relationship cannot arise, Plaintiff maintains, if the attorney has a conflict of interest.
Therefore, no attorney–client relationship could have arisen here. Because there was no
attorney–client relationship, there could be no communications protected by attorney–
client privilege, Exemption 4 cannot apply, and the records should have been produced.
The Board disagrees with those contentions.
The parties devote substantial energy to debating whether there may have been
any conflict of interest weighing on the representation of the Board by Agency attorneys.
The issue in this public records case, however, is simply whether the records were
properly withheld as privileged. Mr. Kramer’s argument that they could not have been is
predicated on a substantial mistake of law, which the Board does not clearly correct in
briefing. The privilege operates for the benefit of and must be invoked by or on behalf of
2 To the extent that a small portion of the withheld records reflect Board representation
by attorneys from the Office of the Attorney General, Plaintiff has not contested the
Board’s position that such documents are privileged. The sole controversy between the
parties is as to records relating to representation by attorneys employed by the Agency.
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the client. The Late Paul R. Rice, et al., Attorney-Client Privilege in the U.S. §§ 2:3, 11:1.
Neither party has come forward with any law to the effect that a client whose lawyer
may have been wiser to exercise her professional judgment by avoiding representation
due to a conflict of interest or to flag a perceived conflict and seek the clients’ potential
assent to representation notwithstanding the conflict, forfeits protection of the attorney–
client privilege as to communications otherwise appropriately subject to it. There is no
such law. See, e.g., St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, 746
S.E.2d 98, 106 (Ga. 2013) (conflict of interest does not abrogate privilege); Garvy v.
Seyfarth Shaw LLP, 966 N.E.2d 523, 538 (Ill. 2012) (violation of ethics rules “has no
relevance to the issue of whether the documents in question are protected by the
attorney-client privilege”).
An attorney who fails to follow the rules as to conflicts of interest may be sued,
may be professionally disciplined, or there may be other consequences, but the Court has
found no law that would penalize the client after the fact by fully negating the privilege
in the manner advocated by Mr. Kramer. See Attorney-Client Privilege in the U.S. §§ 2:3
(“The purpose of the privilege in the United States has always been to encourage people
to seek legal advice freely and to communicate candidly with the attorney during those
consultations.” (footnote omitted)).
According to the Restatement:
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer
provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
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(b) the lawyer fails to manifest lack of consent to do so, and the
lawyer knows or reasonably should know that the person reasonably
relies on the lawyer to provide the services; or
(2) a tribunal with power to do so appoints the lawyer to provide the
services.
Restatement (Third) of the Law Governing Lawyers § 14; see also Cody v. Cody, 2005 VT
116, ¶¶ 19–20, 179 Vt. 90, 96 (discussing when relationship arises). Basically, the test
depends on reasonable expectations in the circumstances. Nothing about it remotely
implies that confidential communications with counsel stop being protected by the
attorney–client privilege if it is later determined that a conflict of interest, whether
disclosed or not, attended the representation.
The Court rejects Mr. Kramer’s argument that some alleged conflict of interest
automatically means that no attorney–client relationship could have existed between
members of the Board and attorneys employed by the Agency and, thus, no privileged
communications could have occurred.
B. Whether, In Fact, No Attorney–Client Relationships Ever Existed
The question here turns whether the circumstances were such that neither the
Board nor the Agency attorneys could have had any reasonable expectation that they had
entered into an attorney–client relationship. As set forth below, the Board has submitted
substantial evidence showing how attorneys, including Agency attorneys, come to
represent the Board. Those submissions are largely uncontradicted and support
reasonable beliefs by both the Board and counsel that such relationships existed vis-à-vis
the withheld records. Mr. Kramer does argue, however, that this evidence is
“immaterial;” and, at least with regard to Board representation by Attorney Russo-
Savage, is directly contradicted by the Board president’s and Attorney Russo-Savage’s
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own statements expressly disclaiming any such relationship. The Court will address
those contentions in turn.
The undisputed facts show that the Board has never had any staff attorneys (or
any staff at all) in its employ. When it needs formal legal advice, it confers with the
Agency. A determination is made as to whether Board representation by an Agency
attorney would present a conflict of interest. If not, an Agency attorney is made
available to the Board. If there is a conflict, the Board will get counsel elsewhere,
whether from the Attorney General’s Office or an outside source. The withheld records
involving communications with Agency attorneys arise out of attorney–client
relationships that occurred only after that process was followed in the ordinary course by
both the Board and the Agency in this case.
Mr. Kramer does not dispute the facts described above. He asserts, though, that
they are immaterial based largely on his views that the operative questions are limited to
whether there was a conflict of interest and that there, in fact, was such a conflict. See
generally Plaintiff’s Statement of Disputed Facts (Filed Oct. 6, 2023). But as the Court
explained above, the mere existence of a conflict of interest, if there was one, does not
demonstrate that there was no attorney–client relationship or that communications with
counsel could not have been privileged. The process by which the Board comes to be
represented by Agency attorneys, and the process followed in this case, is not immaterial
for summary judgment purposes. It is important context evidence supporting the
reasonableness of beliefs by Board Chair Oliver Olsen and Attorney Russo-Savage that
there was an attorney–client relationship. See Declarations of Oliver Olsen and Donna
Russo-Savage and Joint Statement of Facts ¶ 27 (filed June 12, 2023) (“It was Mr.
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Olsen’s understanding in 2021 and 2022 that communications between the Board and
Ms. Russo-Savage were privileged.”).
In any event, Mr. Kramer also argues that both Mr. Olsen and Attorney Russo-
Savage expressly disclaimed any attorney–client relationship at relevant times. The
parties have stipulated that, on one or two occasions, Mr. Olsen conversed directly with
Attorney Mark Oettinger, who was representing the Town of Ripton in the Board
proceeding; that Attorney Oettinger asked Mr. Olsen if “he” was represented; and that
Mr. Olsen said no.3 Mr. Kramer takes this as proof positive that Mr. Olsen in fact had no
subjective belief that the Board had any attorney–client relationship with any Agency
attorney. An insurmountable problem with this argument is that Mr. Kramer has
stipulated that the opposite is the case. The stipulations include this:
24. When Mr. Oettinger asked Mr. Olsen whether he was represented by
counsel, Mr. Olsen understood Mr. Oettinger to be asking whether they
could speak directly without a lawyer present. Mr. Olsen understood that
whether he could speak directly with Mr. Oettinger without a lawyer
present was a separate and distinct question from whether he could have
privileged conversations with counsel without Mr. Oettinger present.
25. Mr. Olsen did not understand Mr. Oettinger to be asking whether he
had ever had any privileged conversations in the past that were potentially
relevant to the matters he expected to discuss with Mr. Oettinger, or
whether he might have any privileged conversations in the future that could
be relevant to the matters he expected to discuss with Mr. Oettinger.
3 Attorney Oettinger asserts in his declaration that, if he had known that the Board was
represented by counsel, he would have considered it unethical to communicate directly
with Mr. Olsen because doing so would have violated Rule 4.2 of the Vermont Rules of
Professional Conduct. The Board argues that, in the context of the proceeding that was
underway, such communications would not violate that rule. The dispute is beyond the
scope of this case, and the Court declines to address its substance in detail. It suffices to
note that many jurisdictions have found that Rule 4.2 permits communications from
attorneys directly to public officials even if the officials are represented by counsel. See
Restatement (Third) of the Law Governing Lawyers § 101, Reporter’s Note cmt. b (“Most
of the extant bar-association opinions take an intermediate position, permitting
extensive contact.”).
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26. If Mr. Oettinger had asked Mr. Olsen to waive privilege over any past
or future conversations with counsel outside the presence of Mr. Oettinger,
Mr. Olsen would have said no.
27. It was Mr. Olsen’s understanding in 2021 and 2022 that
communications between the Board and Ms. Russo-Savage were privileged
and confidential when those communications did not involve third parties or
relate to issues involving potential conflicts between the interests
of the Board and the Agency.
Joint Statement of Facts ¶¶ 24–27 (filed June 12, 2023).
That Attorney Oettinger may have interpreted his exchanges with Mr. Olsen
differently is irrelevant for purposes of this case. The parties have stipulated that Mr.
Olsen understood that there was an attorney–client relationship and that Board
communications with counsel were privileged. Mr. Olsen, thus, did not disclaim an
attorney–client relationship with Attorney Russo-Savage.
Mr. Kramer argues that Attorney Russo-Savage also disclaimed any such
attorney–client relationship in an e-mail to a third party. The Board objects that the e-
mail represents multiple levels of hearsay, is inadmissible for that reason, and cannot
properly be relied upon during summary judgment proceedings. In response, Mr.
Kramer has not attempted to show how the e-mail might be admissible. The e-mail
plainly would be inadmissible hearsay to the extent that it makes an assertion of
nonrepresentation and that is the fact for which it is being offered in support. 4 Evidence
4 At oral argument, Mr. Kramer appeared to argue that the e-mail is not hearsay because
it is not being offered for the truth of the matter asserted but simply to document what
Ms. Russo-Savage said. This argument is not persuasive. Mr. Kramer is asserting that
Ms. Russo-Savage essentially said that she did not represent the Board and that lack of
representation is exactly what Mr. Kramer is attempting to use this communication to
prove. He is offering an out-of-court statement to prove the truth of the matter claimed
to be asserted, which is the definition of hearsay. Vt. R. Evid. 801.
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considered in summary judgment proceedings must be admissible. Vt. R. Civ. P. 56(c)(1),
(2), (4); see also Levarge v. Preston Bd. of Educ., 552 F. Supp. 2d 248, 251 n.3 (D. Conn.
2008) (unsworn correspondence not admissible evidence for purposes of summary
judgment). On that basis, the Court will not rely upon the e-mail.
Admissibility aside, the e-mail simply does not say what Mr. Kramer suggests it
does. In the e-mail, a third party who identifies herself as a candidate for a seat on the
Board of the Addison Central School District poses some questions to Attorney Russo-
Savage as to the Town of Ripton’s proposed withdrawal from the School District,
purportedly so that she could best inform her constituents. Attorney Russo-Savage’s
response includes this:
Although the Agency is happy to help in any way possible, it’s important to
note that we are only able to provide guidance – only a school district’s
attorney can provide it with legal advice. In addition, the State Board of
Education is a separate entity from the Agency (and I am not one of its
members) and so we can only speculate as to what it may do.
That said, responses to your questions are integrated below. As is our
practice, I’ve cc’d your superintendent in case others ask him similar
questions.
E-mail from Donna Russo-Savage to Mary Heather Noble (dated Feb. 17, 2021).
Apart from generally answering the underlying questions, Attorney Russo-
Savage’s response asserts that: (1) by answering the questions, Attorney Russo-Savage is
not purporting to give the school district legal advice, (2) only the school district’s own
lawyer can do that, (3) the State Board and the Agency are separate entities, (4) Attorney
Russo-Savage is not a member of the State Board, and (5) cannot speak for it. None of
the response appears to be intended to address at all whether she then had, or ever had,
an attorney–client relationship with the Board notwithstanding her Agency employment.
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In sum, Mr. Olsen’s statement to Attorney Oettinger and Ms. Russo-Savage’s
statement to Ms. Noble simply do not in any way indicate that the Board never had an
attorney–client relationship with Attorney Russo-Savage.
Finally, to the extent that Mr. Kramer’s argument may be that Attorney Russo-
Savage’s alleged conflict of interest was so flagrant and substantial, presumably
demonstrating some extreme and obvious adversity of interests, that there is simply no
way that either the Board or Attorney Russo-Savage could possibly have reasonably
thought that there was any attorney–client relationship between them, the record does
not support it. The closest the record comes to documenting a palpable conflict is
described in the parties’ stipulated facts as follows:
12. On May 19, 2021, the Board passed a motion conditionally approving
the withdrawal and reconstitution of the Ripton school district. A copy of
meeting minutes reflecting the motion is attached as Exhibit B. The Board
also requested that the Secretary provide a recommendation to it regarding
how supervisory union services should be provided to Ripton.
13. The Secretary thereafter told Ms. Russo-Savage what he intended to
recommend and what facts supported the recommendation. At his direction,
Ms. Russo-Savage drafted a memorandum for the Secretary’s review. On
August 24, 2021, the Secretary issued a public memorandum to the Board
with his recommendations. Exhibit D. The Secretary concluded that “it is
likely that [Ripton] would be too small a system to perform some . . . SU
duties itself in an efficient and effective manner” due to its small size. Id.The Secretary ultimately recommended that the Board designate Ripton to
be its own Supervisory District. Id.
14. On January 19, 2022, the Board voted on, and agreed to follow, the
Secretary’s recommendation.
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Joint Statement of Facts (filed June 12, 2023).5 Thus, to some extent, Attorney Russo-
Savage appears to have been serving two masters in relation to the same subject matter
at the same time, which is quite possibly in tension with the process described above that
is used by the Board and the Agency to attempt to avoid conflicts of interest.6
Attorney Russo-Savage’s representation of the Board and her work on the
Secretary’s memorandum is troubling at the least and certainly not a best practice.
Whether it amounted to a technical conflict of interest the Court declines to say. Again,
the question is not whether there was a conflict. The issue is whether the interests of
lawyer and client were so obviously misaligned that they could not have had a reasonable
belief that they had a lawyer–client relationship. Here, the record shows that such a
relationship existed well before the memorandum, was ongoing, and was the product of a
formal vetting process to ascertain whether a conflict existed. The record is insufficient
to demonstrate that Attorney Russo-Savage’s participation in drafting the Secretary’s
memorandum created such an obvious and flagrant conflict that any continuing belief by
the Board in an attorney-client relationship would have been unreasonable.
The remaining proffered conflicts relied upon by Mr. Kramer are not articulated
with great clarity. Mr. Kramer appears to assert that, although Ms. Russo-Savage was
advising the Board in relation to a Board, not Agency, proceeding, the Agency had a
5 The record is silent as to whether the Board knew in real time that Ms. Russo-Savage
participated in drafting the memorandum and, if so, whether it cared. On its face, she is
not identified as the author or a contributor.
6 As far as the stipulated facts go, Ms. Russo-Savage’s role with regard to the
memorandum was spelling out the position expressly asserted by the Secretary of the
Agency, not personally advocating that Agency position to the Board, as Mr. Kramer
implies.
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position on the matter that was in tension with the Town of Ripton’s views. That alleged
conflict, between Agency and Town interests, presumably should be attributed to
Attorney Russo-Savage, demonstrating that she also had a conflict of interest with the
Board. But the conclusion simply does not follow. Mr. Kramer does not explain why the
Agency’s alleged views presented any conflict between Attorney Russo-Savage and the
Board, much less one so obvious and severe that both she and the Board could not
reasonably have thought that they continued to share an attorney–client relationship.
And the Vaughn index reflects that the Board consulted with Attorney Russo-Savage
frequently during the relevant time. There is no dispute that, but for Mr. Kramer’s
argument about a conflict of interest, the Board’s communications with counsel are
appropriately subject to the privilege. Thus, if there was some conflict of interest, it
plainly is not one that caused the Board and counsel to have any subjective awareness
that their communications were not privileged, and the Court declines to conclude that
their interests were so adverse that, objectively speaking, they could not have had a
reasonable belief that they were in a lawyer–client relationship.
The Court concludes that the withheld materials are subject to attorney–client
privilege and were properly withheld from production under Exemption 4.7
7
The parties also spar over whether this case presents a circumstance where the Agency
and the Town were adverse parties in a “quasi-judicial” proceeding. The Byzantine
process for withdrawals set out in 16 V.S.A. § 724 and No. 176 (Adj. Sess.), § 4 has few of
the hallmarks of a judicial process. See Frawley v. Police Com’r of Cambridge, 46 N.E.3d
504, 514 (Mass. 2016) (“[W]hen assessing whether a proceeding is quasi-judicial, ‘we have
looked to the form of the proceeding ... and the extent to which that proceeding resembles
judicial action.”’ (citation omitted)). No matter how the proceeding is characterized,
however, the statute does not specifically designate the Agency a “party” to it; and there
is no cogent explanation by Mr. Kramer as to how the Agency somehow was in the
position of an adversary for purposes of that proceeding, or how any of this shows that
the Board did not have a lawyer—client relationship with Attorney Russo-Savage.
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III. Plaintiff’s Entitlement to Legal Fees
Mr. Kramer asserts in his cross-motion that, after he filed the complaint in this
case, the Board produced some records that it had not produced earlier. He argues that
he is entitled to his attorney fees in this case as to those records under 1 V.S.A. §
319(c)(1), regardless of the principal dispute above, which has now been resolved in the
Board’s favor. Mr. Kramer’s motion is not supported by a statement of undisputed facts
or any evidence describing the Board’s voluntary post-complaint production. The record
is silent as to the nature of the documents produced or their volume. Accordingly, Mr.
Kramer’s argument presumably is that § 319(c)(1) requires some assessment of attorney
fees anytime there is any production of records after litigation begins.
Mr. Kramer’s argument is untenable. The Vermont Supreme Court has been
crystal clear that attorney fees awards depending on who substantially prevailed must
look to the entire case rather than who prevailed on isolated issues or claims. See In J &
K Tile Co. v. Wright & Morrissey, Inc., 2019 VT 78, ¶ 37, 211 Vt. 179, 194 (“The court
should have determined who was the substantially prevailing party as a whole,
considering all the claims together.”). It has further made clear that fee awards under
the PRA are no different. See Energy Pol’y Advocs. v. Att’y Gen.’s Off., 2023 VT 43, ¶ 21
(“The canons of statutory interpretation further support this, because to allow such a
parsing of claims would essentially mandate the award of attorney’s fees for any legal
victory, no matter how small. This is an absurd result which we will not sanction.”).
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Here, Mr. Kramer’s complaint focuses exclusively on the 1448 documents that were
withheld under a claim of attorney─client privilege and listed in the Vaughn index. The
parties have engaged in significant briefing disputing whether such documents were
rightfully withheld based on the asserted claim of privilege. If there are other documents
that have been produced or discovered, those do not appear to be referenced as part of
the current version of the complaint. Nor has Plaintiff described them in any detail in
his motion.
Subsection 319(c)(1) provides for attorney fees when “the complainant has
substantially prevailed.” Plaintiff bears the burden of establishing that status. See
Burlington Free Press v. Univ. of Vermont, 172 Vt. 303, 305–06, 779 (2001). In this
instance, the dispute relating to the documents described in the Vaughn index is the only
contest raised in the complaint and litigated by the parties. It has been resolved in the
Board’s favor. See Jeremiah Beach Parker Restoration and Const. Management Corp.,
2010 VT 55, ¶ 8, 188 Vt. 583, 585 (noting court can consider which party prevailed “on
the issues actually litigated”). Mr. Kramer is not the substantially prevailing party.9
8
The number is sometimes referred to as 143 in the materials.
9
Given that determination, the Court need not weigh in on the Board’s legal contention
that attorney’s fees may not be awarded under the PRA in the absence of a judicial order
of production.
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Conclusion
For the foregoing reasons, Mr. Kramer’s motion for summary judgment is denied.
The Board’s motion is granted.
Electronically signed on Friday, February 2, 2024, per V.R.E.F. 9(d).
_______________________
Timothy B. Tomasi
Superior Court Judge
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