GRAFTON — Gov. Peter Shumlin recently declared that he will make it easier for news organizations – and ordinary citizens - to get information from the government.
Shumlin outlined a number of improvements in the public records law and made a commitment to set changes in motion that could shift the bureaucratic attitude toward citizens' requests for information.
The governor's proposal, which is based on the groundwork laid by the leaders in the Vermont House of Representatives, could crack the heavy door of government secrecy around how decisions are made in such as programs, budgets, contracts, personnel, arrests of citizens, and treatment of state employees.
That door, which had to begun to stick over the eight years of the Douglas administration, has become hard to budge.
The Vermont Press Association has pushed for significant reforms of the public right-to-know laws for more than a decade, but has been unable to make progress because of resistance from the Vermont League of Cities and Towns, and the Vermont attorney general's office, the entities that represent local and state officials in public records disputes.
Shumlin's endorsement is vital to passage of any significant changes in the law, but why has Shumlin, newly installed as governor, chosen to respond at this moment?
Perhaps because pressure has been inexorably building.
Nationally, Vermont's transparency rankings are abysmal. The U.S. Public Interest Research Group gave Vermont an F for online budget transparency in 2010.
Vermont ranked 49th in the 2008 Better Government Association-Alper Integrity Index, which rates states in five areas of law: open records, whistleblower protections, campaign finance, open meetings, and conflicts of interest.
Here are a few of the recent events that have spurred a renewed focus on the issue:
• Recent financial improprieties that have come to light over the past few years have raised questions about government activities conducted in secret. The city of Burlington used $17 million in taxpayer dollars to keep Burlington Telecom afloat without seeking permission from city councilors. The situation has snowballed, and Mayor Bob Kiss and the city council have been criticized for continuing to keep the public out of crucial meetings.
• The Montpelier City Council didn't disclose a more than $450,000 budget hole that was created when a city clerk overpaid Scott Construction in Newport.
• City officials in South Burlington did not release reports about a $9 million pension shortfall, due to a drop in the stock market to city councilors until more than a year had passed.
Blame has also been laid at the feet of the Vermont press corps, which has significantly diminished over the last 12 years. Broadcast outlets have had significant layoffs, and the state's biggest dailies – the Burlington Free Press and the Rutland Herald and Barre-Montpelier Times Argus – have lost more than a third of their editorial staffs due to devastating industry declines over the last decade.
On Jan. 14, 30 members of the broadcast and print press corps, along with representatives from the New England First Amendment Center, the Vermont chapter of the American Civil Liberties Union, and Common Cause, gathered at a conference in Grafton, sponsored by the Windham Foundation, to discuss government accountability.
Over the course of the daylong meeting, reporters and editors recounted the difficulties they have had obtaining basic information from state agencies and local selectboards, school boards and police departments.
Why should ordinary citizens care? Editors at the Grafton Conference pointed out that journalists are used to putting up a fight for information; ordinary citizens who ask for meeting minutes or budgets are more likely to give up when a public official turns them down.
For journalists, the situation is also very serious. With fewer reporters in the field to press repeatedly for the release of individual documents, roadblocks and delays put up by public officials can effectively kill stories.
On Jan. 7, Judge Geoffrey Crawford ordered the state to release records at no cost to the Vermont State Employees Association. The Douglas administration wanted to charge the union $1,300 to view budget documents and information about a new computer system designed to monitor state workers' Internet use. Crawford ruled that the state can charge for the release of a public record if there is a request for copies; officials cannot charge members of the public to view a record.
A week before Crawford issued his decision, state Auditor Tom Salmon tried to sway the judge to “give ample consideration” to the “burden” public records requests impose on state employees. In an e-mail he sent to Crawford on Dec. 29, Salmon argued that “if there are not reasonable expenses apportioned to a requestor,” he could only imagine how “insincere” requests for information could “derail” state government.
Editors and reporters at the Grafton Conference argued that charging citizens for documents that are already created at taxpayers' expense is unreasonable.
There has been a flurry of lawsuits this year challenging public officials' unwillingness to release public records.
• The Rutland Herald has sued Rutland City for personnel files related to a Vermont State Police probe into an allegation that former Rutland police officer David Schauwecker viewed child pornography on his work computer.
• Prison Legal News, a monthly trade publication based in Brattleboro, has sued Prison Health Services (PHS) for copies of contracts with government agencies in Vermont; records related to settlements and judgments that PHS had paid as a result of lawsuits and civil claims; and documents concerning costs incurred by PHS to defend against claims or suits.
• VTDigger.org has sued the Town of Hartford, which refused to turn over records of its arrest of a sick man in his own home. The suit has the support of the Vermont Chapter of the American Civil Liberties Union.
New, improved public access
Shumlin and the Democratic House and Senate leadership have recommended wholesale changes to the way the public records law is written and applied to state government.
Secretary of State Jim Condos, a Democrat, also said he would make government transparency a top priority when he spoke to journalists at the Grafton conference.
So how would this work?
Instead of hiring communications officers for each state agency, as his predecessor Gov. Jim Douglas did, Shumlin says he will designate “public records officers” throughout state government who will vet requests for documents.
“Every legitimate request by the public for information should be met in a timely, open manner,” Shumlin said. Current regulations require state officials to respond to requests within 48 hours, though there is no mechanism for enforcing the law.
In addition, Shumlin has said he will require training in public records rules across state government in order to improve state compliance with the law. Shumlin said this week he will provide instructions to his agency secretaries “to ensure compliance by his full cabinet.”
“The single biggest complaint we've heard is not that the law as written doesn't go far enough,” Shumlin said. “It's that in some cases, state employees have not complied with the spirit or the letter of the law as written, often due to inadequate training.”
Shumlin also supports an overhaul of the public records law, and he has endorsed a draft of the bill that was introduced in the House Government Operations Committee last week.
Vermont's public records act contains more than 200 exemptions, or legal justifications, for public officials to prevent the release of listed categories of information.
Those exemptions are used to block access to public records, such as police reports under certain circumstances, in the interest of privacy. The new legislation calls for the formation of a legislative commission that would evaluate the exemptions one by one.
Current law also includes language that favors protection of government officials over citizens' rights. It states, for example, that the government “may” pay legal costs incurred by citizens who win a public records request battle in the courts. First Amendment advocates and journalists have fought for years to change the word “may” to “shall.”
In a recent court case, the Burlington Free Press won in court against the University of Vermont, but was not awarded attorney's fees, which totaled about $12,000.
In the new bill, lawmakers and the Shumlin administration continue to allow some doubt with regard to who pays. If the new bill passes as written, the person who requests records is “presumed” to be entitled to attorney's fees if he or she wins. In addition, descriptions of the bill suggest so far that other costs -such as court filings or copying fees - would not be covered.
No one in state government enforces the public records law. If the bill passes, a new Office of Transparency, under the Secretary of State's office, would have “binding” authority to arbitrate disputes between members of the public and state agencies. Those decisions could be appealed in court.
Right now, if it takes a government employee more than 30 minutes to fulfill a document request, the state can charge a person placing a request for the staff time required to copy records. Under the current law, “inspection of records,” or merely looking at a document, is, as Judge Crawford determined, free.
The new legislation would impose a new fee arrangement for public records. It would extend the amount of “free” time given to requesters to two hours. It does not, however, distinguish between “inspection” and “copying.” In other words, members of the public who ask for documents would, under the new law, be liable to pay for the staff time (beyond two hours) it takes to gather the information, regardless of whether copies are made or not. According to a press release from the governor's office, only 2 percent of requests exceed the two-hour limit.
Secretary of State Condos told journalists in Grafton that he couldn't support the two-hour rule, in part because of a lack of data supporting the aforementioned statistic.
“We don't know how many public records requests we receive,” Condos said. “We don't know how many are denied.”
Condos said changes in records management now underway will help agencies respond in a timely way to requests; currently information isn't uniformly accessible across departments.
He suggested that fines would be an inducement for compliance, and he believes the “may” should be changed to “shall.”
“Right now in government, the attitude is take me to court,” Condos said. “The incentive is deny, deny, deny. There's no incentive for government to give out records.”
Though fines and even jail time are imposed in other states when public officials fail to comply with public records laws, such penalties have not been included in the draft legislation.
The secretary also blamed the media for a lack of public access to government information. When asked whether the press watchdogs have been muzzled, Condos replied, “Yes.” The question is, he said, “Are you muzzling yourself? Your resources are diminishing over time.”
He said that reporters attend fewer meetings, cover smaller beats and leave before public officials have finished discussing important issues. “The lack of reporting has helped to muzzle the media to a certain point,” Condos said.