Vt. AG’s public records policy draws pushback from governor, secretary of state

Published: 10/17/2019 10:23:43 PM
Modified: 10/17/2019 10:23:32 PM

MONTPELIER — Gov. Phil Scott and Secretary of State Jim Condos are pushing back on a new public records protocol issued by Attorney General TJ Donovan.

After VtDigger reported last week on a new rule Donovan imposed barring members of the public from photographing records they are inspecting, Scott issued a directive at a cabinet meeting Tuesday telling state agencies to take a less restrictive approach.

Scott and his legal counsel believe that a recent Supreme Court decision means the state cannot charge for inspections if copies are obtained during that inspection “without the use of staff resources and no actual expenses are occurred,” Scott spokesperson Rebecca Kelley said via email. Seven Days first reported on the governor’s directive.

Kelley said Scott, a Republican, planned on working with Secretary of Administration Susanne Young to issue a clarifying guidance on inspections. In the meantime, Scott told his Cabinet to follow his interpretation at a meeting Tuesday morning, she said.

The Supreme Court ruled in Reed Doyle v. the Burlington Police Department that the public has the right to inspect public records without incurring administrative costs.

Donovan has argued that under the decision in Doyle, requesters who wish to make copies are subject to the same costs that would be associated with state employees doing the work. Civil rights attorneys disagree, saying the policy contradicts the Public Records Act and the Doyle decision.

Condos, a Democrat like Donovan, released a lengthy statement Tuesday saying he was disappointed in the attorney general’s policy to charge members of the public who take photographs of public records they are inspecting.

“I believe that the law is crystal clear; this interpretation is not only wrong, it reduces transparency and places undue burdens on Vermonters,” Condos said.

Condos said there was a clear difference between “copying” and “inspecting” a record and the cost to prepare a record for inspection must be borne by the agency.

“Even when a copy is taken, the charge must be for the actual cost of the copy and not some other charge that impedes access,” Condos said. “If a member of the public snaps a photo of a record they’re inspecting with their smartphone, what’s the cost to the agency? There is none.”

The secretary of state pointed out that the Vermont Judiciary policy states that a member of the public can photograph court documents without having to pay to do so.

Condos also reiterated his call for the creation of a public records ombudsperson, who would ensure agencies were compliant with the law and ensure the public has access to documents to which they are legally entitled.

Donovan indicated to Seven Days that he supports the creation of a state ombudsman to handle public records requests, in part to alleviate the burden on the Attorney General’s Office.

State agencies currently handle their own public records requests, leading to variations in the costs and responses across state government.

There have been more than 110 requests made to the AG’s office this year, according to a regularly updated tracker on its website.

The Vermont Journalism Trust, VtDigger’s parent organization, also submitted a formal letter to Donovan’s office Tuesday requesting that it revise the public records inspection protocol.

“It would be absurd for the act of the requester taking a photograph to trigger a cascade of charges that otherwise would not attach if the requester did not take the photograph,” said the letter from VtDigger attorney Stephen Coteus, of Montpelier law firm Tarrant, Gillies & Richardson.

“Where there is no difference in the agency’s work between preparing records for inspection and allowing those records to be photographed, and charges are prohibited int he former, then charges logically must be prohibited in the latter.”

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