More light.
That is at heart the reason the public records bill, H. 73, was passed this year, though it's not just “defrosting the windshield,” as State Archivist Gregory Sanford puts it, so that citizens can see “the wheels [of government] go round and round.”
H. 73 revises and amplifies earlier “government transparency” legislation that, post-Watergate, provided definitions and process around public records. The benefit? Proponents say citizens are more likely to trust their government when the system is more responsive.
Part of the bill's purpose is to put teeth into a 35-year-old public records law by setting a financial penalty - payment of court costs if a document requestor has to go to court and wins. In terms of penalties, H. 73 says, for the first time, that what's good for the goose is good for the gander, making municipal agencies equal under the law, which is to say just as accountable as the state.
Steve Jeffrey, the executive director of the Vermont League of Cities and Towns, objected to the provision on the grounds that most municipal records “aren't state secrets. Most are records for individuals, employees, and taxpayers.” The rebuttal from open government advocates is that the law is clear and in at least one case where it is being adjudicated-in Manchester–the ACLU-Vermont supports redaction of rebate information in property tax records.
Another impetus for H. 73 is to provide a clearer understanding of the pesky 240-plus “excepted records,” commonly referred to as exemptions that have accumulated over the decades. Objections by the Vermont League of Cities and Towns to exempt municipal entities (“a city, town, village, or school district”), centered on the complications of interpreting language in the exemptions to the public records law, especially as to what is or is not personal information in personnel and other town records.
In its first draft, the bill created within the Secretary of State's office a “public records officer,” someone to act as a resource for public agencies at all levels of government. But, in a time of budget cuts, the public records officer was found to be too expensive.
Still, there is language in the final bill that says the Secretary of State “shall” provide “public information and advice.” This should mean an easier time for officials around the state who handle public records requests, but there is still pushback from some worried town officials.
(What also appeared in early drafts was a requirement that private contractors with the state will be subject to our public records laws. But contractors, like Corrections Corporation of America and some nonprofits that do business with the state, objected and the language was removed. Sunshine law advocates will be working to plug this loophole.)
All of this is intended to provide more accountability and greater government transparency through better access, as in better records and recordkeeping design, the ability to inspect public records at no cost, lifting the burden of litigation costs from the plaintiff in a successful public records case, and a review of the long list of exemptions to see if some can be revised or even repealed.
As Secretary of State Jim Condos observes, “More records are now available to the public than at any time in history.” Digitization makes this possible. The legislative study committee will be considering planning for a new electronic document management system.
Meanwhile, the Vermont State Archives and Records Administration, established in 2008, is working with almost 30 state agencies and departments to develop plans for, among other things, records commonly held by most agencies. Sanford points to the online “right to know” database (vermont-archives.org/records/access/index.htm) that is already available to the public.
Why, with several major and complicated bills coming before the legislature and major budget issues this session, was the “public records” such a major focus? Condos, who sets a high priority on a “culture change,” says it is the result of a spate of recent events and cases that highlighted, at least for advocates of open government, the inadequacies of the current law.
The dispute in St. Johnsbury over releasing information about candidates for a town job, the case under way in Manchester over tax rebate redaction, the Shelburne affordable housing case and the difficulties the press has in obtaining arrest and DUI records highlighted the need for changes in existing law.
Shumlin and Condos took the issue to the voters. The follow through was H. 73.
For other backers - the ACLU-Vermont and the Vermont Press Association - the basic issue has been enforcement of existing law. Without real teeth, a law that promises access cannot deliver. And “teeth” boiled down to how expensive it can be for a private citizen or the press to take a dispute to court unless they can recoup costs if they win.
The change from “may” to “shall” might not have kept the Vermont State Employees Association suit against the Agency of Natural Resources out of the courts, but it could have led to a stronger inclination to release the information requested.
Abigail Winters, legal counsel for the Vermont State Employees Association, filed the lawsuit against the state that highlighted the issue of costs. Judge Geoffrey Crawford awarded attorneys fees to the union after he found against the state agency. The headline ran “Court forces state to pay $6,000 in public records law decision.” (The documents requested have still not been provided, since the decision may yet be appealed by the state.)
But how much of a “culture change” is needed? It depends on who you ask.
State Archivist Sanford has observed that up to now “no one really knows how many denials of access were taken to court or which exemptions were most commonly challenged, much less who received fees (or not). By extension we do not know how often municipalities were taken to court for denying access.”
Jeffrey of the Vermont League of Cities and Towns, pushed for “bifurcation,”–that is exempting municipal entities from the “shall pay” costs of litigation if a plaintiff wins-because, he doesn't believe that “'may pay” has been abused.
“We don't have all of the cases where fees have been denied,” he says, adding that he's only been able to track down three.
In fact, while the Burlington Free Press and the ACLU have stated that judges rarely award legal fees to the party who substantially prevails in a denial of records, the law has until now protected Superior Court records so that there is no firm data on how many times fees were awarded (or not). This is one reason why H. 73 requires the courts to start reporting on the number of contested cases at the Superior Court level, a requirement made easier by the advent of a much improved electronic record system.
Where is there other pushback? The VLCT went to bat to relieve their constituents of what they perceived as both a threat to them–new costs to taxpayers-and an anxiety-provoking burden. So far as they are concerned, with H. 73, the ante has been disturbingly upped for municipalities, since even well-intentioned resistance to providing a public document or some of its contents might cost taxpayers.
Talking to a random sample of the VLCT's constituents provides an interesting variety of views that give a rather more nuanced picture. Ruth Neborsky's take-she is the Town Clerk of Victory, the smallest town in Vermont (Granby has just lost this honor): “I'm a firm believer in government transparency. If you do something and a penalty has to be paid, better pay more attention to the law.”
Melissa Ross, Hinesburg's Town Clerk, is matter of fact about the obligation of public agencies to provide public records to the public. “We [public officials] are here to provide public records.”
William Fraser, Montpelier's city manager, identifies what he feels is the most disconcerting aspect of the law: “What if someone unintentionally provided incomplete information, after making every effort in good faith, but it was found inadequate [by the court]. Would they still have to pay?”
Gail Fallar, the Tinmouth Town Clerk, who has been a legislator herself, says she is comfortable redacting tax rebate information when a property tax record is requested by someone other than the property owner-the issue in the current case in Manchester.
But she has two concerns, which she thinks are shared by other clerks. One is that someone might request the whole grand list and use it for commercial data-mining purposes. And she felt the legislation should “go both ways”: When the plaintiff's case is so weak that they lose, why shouldn't they pay if the public agency has to pay when their case is weak? H. 73 addresses this, in fact, by allowing assessment of costs to a plaintiff under Rule 11 of the Vermont Rules of Civil Procedure.
Additionally, there is the “safe-harbor clause,” which gets mixed reviews from both sides. In question is the “wiggle room” factor. Town officials can change their minds with a 20-day limit. To Jeffrey and the VLCT this allows time to consult on a questionable ruling, and it costs money, since an attorney will be involved. Meanwhile the Vermont Press Association, in the person of Mike Donoghue, looks at the costs for the inquiring reporter or citizen mounting up and worries that the effects of H. 73 will be undermined.
Perhaps because any legislation-in-progress triggers worry, others interviewed focused on irksome and even adversarial proceedings. Fred Dunnington, Middlebury's Town Planner, who began his career there in 1981, has been through the mill on an issue involving a hydro project. “The town has a fiduciary responsibility when licensing rights for a private development.”
While the town is in favor of such a development, it turned out not to be an easy thing, since rights going back 150 years are involved and the Federal Energy Regulatory Commission also had to be involved. Having provided many documents over the years, he and Town Manager Bill Finger, were suddenly sent a three-page letter from the developer's attorney demanding “every document related to the case.” That included nearly 1,000 emails that had to be read individually and redacted or eliminated as warranted. More of this is what town officials fear.
“It's a human reaction,” says Dunnington.
The human element has been around a long time. Gregory Sanford found it in action as far back as 1906, when the Vermont Supreme Court first tackled access to public records.
State Auditor Horace Graham denied the request of one Percival Clement, who was running as the Democratic candidate for governor, to see some vouchers. Graham, also running for office, felt that Clement was using his “idle curiosity” to cause political mischief. He was also in the midst of preparing his biennial report to the legislature and complying with the request would take him, he said, from his true public duties.
The Court ruled in Clement's favor: “The right to examine documents includes the right to make copies from them ….When examination is sought for a public purpose, the interest of a citizen and taxpayer alone, without any other special or personal interest, is sufficient,” and “The fact that it is an inconvenience to permit the examination of the vouchers, is not a sufficient ground for refusing that right.” (Clement v. Graham, 78 Vt. 290 (1906).)
Exemptions accumulated over the 35 years since the original public records laws, H. 276 and H. 350 of 1976 and 1978. Town clerks, in a state with 246 incorporated cities and towns ranging in population from 72, Victory, to 42,417 Burlington, might be forgiven for expressing anxiety about new responsibilities for getting it right when a citizen requests a public record.
Existing law, dating from the 1970s, has passages and exemption language that are open to interpretation. Alison Kaiser, Stowe's Town Clerk, says “the hard part is that understanding about exemptions has developed because of a court decision.”
So far as town clerks are concerned, with H. 73, the ante has been disturbingly upped for municipalities, since even well-intentioned resistance to providing a public document or some of its contents might cost taxpayers.
Accessibility is gaining ground in a digital world. But small towns simply don't yet have the resources to digitize as, say, Stowe has. Still, Stowe's website says their office “offers the ability to search, browse and copy recorded Town of Stowe documents online in conjunction with ClerkBase. Search categories include: Town Meeting Records, Appointments & Oaths, Contracts & Agreements and Election Documents.
The burden of proof, if a record is not forthcoming, is on town staff, from the towns' point of view. Kaiser, who is also head of the State Municipal Clerks and Treasurers Association, says education is necessary for the many new town clerks around the state.
The bill's backers say that plans to improve recordkeeping around the state should also ease the current anxiety.
Frustration is evident on both sides. From the media standpoint, there's frustration with inconsistent responses. Ross Connolly of the Hardwick Gazette cites cases in Hyde Park and Hardwick in which similar information was requested. In one town it was provided, in the other not.
The ACLU-VT's Allen Gilbert points out that you can turn down a request only if an exemption authorizes it: “Before a public official can withhold a public record, or redact information in a public record, she or he must state the reason for the nondisclosure. That means pointing to a specific exemption in law. It's not good enough for a public official to say, 'I'm not going to give you this bill, because I don't think you should have it.' The official has to cite a specific exemption.”
Concerns about any burden imposed by the new law don't, from proponents' point of view, take account of the training already available and promised from the VLCT itself, which will now be supplemented by the Secretary of State. Experience has shown Condos that the modest training now available, through the VLCT, means that “most towns just don't have a command of the law.” His focus now will be on training and he will be developing the process for providing training to town clerks and the curriculum for his 12-town tour over the summer. “It will most likely be in late summer to early fall, four a week over three weeks,” he says.
Further, H. 73 says the Secretary of State “shall,” not “may,” designate who will provide support for public agencies when there are questions of interpretation. The study committee set up by the legislation is charged with improving this part of the system.
The final language was also tweaked toward the end of the session to say that “the Secretary of State's office shall have authority to provide advice as to whether a particular type of record is public and available for inspection and copying.”
Also: “The S of S's office may provide municipal public agencies and members of the public with information and advice regarding the requirements of the public records act and may utilize informational websites, toll-free telephone numbers or other methods to provide such information and advice.”
All state agencies are now required to designate a staff person who is charged with this responsibility.
Town clerks recoiled in horror at a provision in the early draft of the legislation that would have required a records officer in each town. That did not survive the legislative deliberations.
Under the new dispensation, the policy will be to refer municipal officers to their town attorney if there is any likelihood of litigation, a key worry of many Town officials. Legal advice is not the responsibility of the Secretary of State's office. This was the response to the natural anxiety whenever anything touching on legal advice comes along at the municipal level.
During the bill's progress the term “advisory opinion,” which was to be available from the State Archivist, was changed to “opinion” when it turned out “advisory opinion” is a legal term and there was concern about the archivist, who is not a lawyer, issuing one.