Those are the questions at the heart of a lawsuit brought by Rep. Cynthia Browning, D-Arlington, against the state of Vermont.
Gov. Peter Shumlin has used executive privilege to keep private the deliberations of two advisory councils on health care reform.
Browning believes Shumlin has applied the doctrine too broadly in order to prevent public access to information about his plans for single payer. She said her request does not breach executive privilege. She is asking for work products and presentations from Michael Costa, the deputy director of health care reform; she is not suing for audio tapes of the meetings, or communications from members of the councils to the governor, which are confidential.
"I think that the principle of transparency and accountability and not violating open meetings laws - those principles are subject to interpretation, and so is executive privilege," Browning said.
One of the documents, a draft presentation, was shared with four lawmakers.
When Costa handed out confidential documents to House Speaker Shap Smith, Reps. Sarah Copeland-Hanza, Mike Fisher and Janet Ancel, he waived the administration's right to claim executive privilege, according to Browning's latest filing.
"Some members of the Legislature know more about the financing plan than the rest of us do," Browning said. "I think that's interesting in terms of the role of the Legislature, the Democratic caucus and the whole issue of transparency. If you're going to be a member of the governor's staff, be a member of the governor's staff."
The state moved to dismiss Browning's case in June. The Vermont Attorney General's office argued it is necessary to maintain the confidentiality of the documents in order to "preserve candor, openness and creativity in the governor's deliberative process on the health care financing issue."
In the latest round of court machinations last week, Browning's lawyers, Primmer, Piper, Eggleston and Cramer extracted a list of privileged documents from the Shumlin administration.
The attorneys were not able, however, to obtain a crucial accompanying document that explains why each of the documents are exempt from public disclosure. No reasons are given for invoking executive privilege.
Browning's attorneys say the documents are in the public interest and citizens have the right to the "free and open examination" of public records under the Vermont Constitution even when "such examination may cause inconvenience or embarrassment." The burden of proof is on the administration to demonstrate otherwise, they argue.