BRATTLEBORO — For a democracy to work, the citizenry must have access to the work of government and the ability to make comment.
The reasonable assumption, said Secretary of State Jim Condos, is that all municipal meetings and documents are public unless there is a specific exemption in state statute saying otherwise.
Vermont's right-to-know laws, known separately as open- meeting and public-records laws, trace their authority back to the state's constitution.
Chapter 1, Article 6 to be precise: “That all power being originally inherent in and co[n]sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”
In the spirit of the public-is-the-government's-boss concept, the state right-to-know statutes provide the legal framework for keeping its government open and transparent.
“I'm a firm believer in transparency and open government,” said Condos, who quoted some key portions of the right-to-know laws in his presentation on Nov. 9.
Regarding public meetings, the law says that “public commissions, boards, and councils and other public agencies in this state exist to aid in the conduct of the people's business and are accountable to them.”
And for public documents, “Officers of government are the trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment,” the law says.
The what-ifs
Oh, but Condos had horror stories from town governments.
Most of the stories went like this: a town official calls the Secretary of State's office asking what if.
What if only two members of the Selectboard are assigned to a committee?
What if a board went straight to executive session before the regular board meeting to interview a potential hire?
What if a board or committee just banned the local loudmouth from attending meetings?
What if a department denied a public-records request because the information was potentially embarrassing?
What if...? What if...? What if...?
To which Condos asks: “Why?”
He said that often the response falls along the lines of, “Well, to avoid the open-meeting or public-document law.”
“No,” he said. “That's a problem.”
If a town is trying to avoid the state's right-to-know laws, then it needs to change how it does business, he said.
Or, to paraphrase advice from state Sen. Jeanette White, D-Windham, whose Senate committee has spent approximately four years revising these statutes: if it's unclear whether an action will violate Vermont's right-to-know laws, then err on the side of not taking the action.
Closing off access
Condos's educational tour, while necessary, also raises questions.
It appears that more municipalities and state agencies are narrowing - if not in practice, at least in town-government culture - the amount of information available to the public.
• In September, multiple news organizations reported that Gov. Peter Shumlin's chief of staff, Darren Springer, issued a memo reminding executive branch staff to check in with the governor's press secretary before speaking with the press to ensure consistent messages.
• In October, the Vermont Republican Party sent a letter to Condos' office about a “concerning display of political bias.” that party members claimed staff showed toward the GOP in comments on social media. Condos responded with a decision that the press can receive information from his staff, but quotes must come from him.
This raises the question, in a state that prides itself on an open, accessible, citizen-driven government: Can such a government survive an increasing culture of narrowed and possibly sanitized information?
According to Condos, right-to-know laws came to the fore in the 1970s after Watergate, the political scandal that started with a burglary of the Democratic Party Headquarters at the Watergate Hotel in Washington, D.C. in 1972 and ultimately led to President Richard Nixon's resignation in 1974.
“Vermont's open meeting and public records laws are some of our most important because they allow us direct access to the decisions that affect us,” Condos said in his presentation.
Most of the questions Condos received during the Brattleboro stop centered on what constituted a quorum or meeting of the Selectboard or town committee.
The open-meeting law defines a meeting as a gathering of a quorum - a majority of the entire public body - for the purpose of discussing the business of the public body or for taking an action, Condos said.
A meeting by any other name - workshop, retreat, working group - is still a meeting, he said.
Also, if a Selectboard sanctions a committee then it is subject to the open-meeting and public-records laws, Condos added.
Some meetings not subject to the laws include the judicial branch of the Vermont state government, the Public Service Board or any public body with a quasi-judicial proceeding, certain site inspections, staff clerical work or work assignments, and routine administrative matters that don't require action by the public body unless money is appropriated or expended.
Condos also walked the audience through the state's requirements for executive sessions, which allow a public body - such as a Selectboard - to meet behind closed doors.
The statute allows such closed meeting under limited circumstances. The public body must start their meeting in public, make a motion to go into executive session, and state its reason for the action.
No decisions can be made in executive session, with the exception of quasi-judicial decisions. Even quasi-judicial decisions, however, must be followed up with a written document for the public record.
All documents produced by government are open. The asterisk on this statement is that some information is exempted. The public document law contains more than 40 exemptions. Other exemptions outlined in other statutes or federal law, however, bring the total to more than 200.
Exemptions in documents also include medical information, Social Security numbers, trade secrets, and tax records.
If a document falls into a gray area, Condos said, the Vermont Supreme Court has ruled that it will “resolve any doubts in favor of disclosure.”
“The news media is no different from the public,” he said. “They are the public. They are the public's watchdog.”
He added that the public and media are always allowed to record or video tape a meeting unless they become belligerent or block the proceedings.
For example, Condos said a Selectboard member ordered a public access camera person to turn off his camera because the board member didn't want a record of a fight between the board and audience member.
Can't do that, Condos said.
Condos walked the audience through recent updates to the right-to-know laws. Most of the recent revisions pertained to language that included electronic communications, such as email or meetings held via video conferencing.
Revisions also included requiring judges in right-to-know suits mandate that an agency pay attorney and other legal costs to the successful challenger.
The revisions also clarified what charges a government department could collect for staff time and copying fees. The first 30 minutes of staff time is free, Condos said.
Another clarification to the statutes that has roiled a number of towns is the posting of minutes on a website five days after a meeting.
In response, some towns such as Townshend and Vernon have taken down their official websites because they feel the regulation is too onerous or unclear.
“You'd swear they're talking about a new requirement,” Condos said.
The requirement that the public have access to minutes - approved or draft - within five days has been on the books for 30 years, according to Condos. The clarified regulation just added that the minutes needed to be posted to a town's website as well.
Condos said that it's not up to members of the public or news media to prove a meeting or document is open. It's the responsibility of the government to prove they're not open.
He pointed out that the Vermont Supreme Court has ruled that government officials can ask people requesting documents why they want them. The request, however, can't be denied because of the people's motive or intent.
According to the VSC, “the identity and motive of the requester cannot be considered when weighing access to public documents.”