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Editorial: Vermont AG’s new public records protocol is an affront to open government

  • Attorney General TJ Donovan, left, speaks with Kim Souza at Revolution in White River Junction, Vt., on Jan. 30. Donovan was at the shop to present Souza with 'Vermonter of the Month' recognition. Souza and some friends wanted to discuss the attorney general's decision not to press charges in a racial harassment case. (Valley News - Jennifer Hauck) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

Published: 10/23/2019 10:10:08 PM
Modified: 10/23/2019 10:10:04 PM

Vermont officials all too often treat the public’s right to know as the public’s right to no — that is, to no information. In this they are abetted by the state’s Public Records Law, which is so riddled with exemptions as to make a mockery of the statute’s stated purpose, which reads in part: “It is the policy of this subchapter to provide for free and open examination of records. ... Officers of government are 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 latest transgressor is Attorney General T.J. Donovan, who recently decreed that anyone inspecting a public record is forbidden to copy it. The relevant paragraph from his protocol asserts that “no copying of inspected records shall be permitted without applicable charges. Any requester who elects to inspect public records shall not make electronic copies or photocopies of the inspected records unless the requester is willing to pay applicable charges. This prohibition includes, but is not limited to, the use of scanning devices, thumb drives, cameras, or cell phones during inspection.”

In light of the first sentence, one wonders whether Donovan also proposes to outlaw pencil and paper. But we digress.

His prohibition was issued in the wake of a Vermont Supreme Court ruling in September holding that people could not be charged for merely inspecting records, as opposed to obtaining copies of them. Under the attorney general’s theory, once a member of the public creates her own copy on her own personal electronic device, that triggers a charge for the costs of staff time spent preparing the record for inspection. (This despite the fact that the Public Records Law refers to copies being produced by equipment maintained and used by public agencies.)

Donovan’s rationale has been rejected by open government advocates, civil rights lawyers, Gov. Phil Scott and Secretary of State Jim Condos, whose office last year noted — correctly in our experience — that most agencies’ “knee-jerk” reaction to requests for public records is to deny them, so requesters must either give up or go through an appeal process.

“I believe the law is crystal clear,” Condos said of Donovan’s protocol. “This interpretation is not only wrong, it reduces transparency, and places undue burdens on Vermonters.”

Donovan explained his thinking more fully in an op-ed published Saturday on this page. He argues that most public records requests come from law firms and companies, and that the costs incurred by having lawyers in his office vet those records to make sure they do not contain information exempt from disclosure is borne by the taxpayers and should be reimbursed.

“There is a cost to Vermonters associated with diverting attorney time and resources from my office’s mission,” Donovan wrote. “More to the point, should we provide free legal work to law firms and companies that may take an adverse position to the policies of our state? They may be collecting documents in anticipation of litigation against the state.”

This is a troubling echo of a losing argument made in 2017 by one of Donovan’s lieutenants in a public records case. According to VtDigger, William Griffin, chief assistant attorney general, argued that records from the Attorney General’s Office ought to be released at its sole discretion, after considering to what use they might be put. “It might be a news organization and we think, well, what are they going to do with it?” Griffin said. “Well, they are going to publish it to the world. So ... let’s exercise some caution.”

This assertion, VtDigger noted, contradicted a state Supreme Court ruling from 13 years prior that “the identity and motive of the party making a Public Records Act request cannot be taken into account when evaluating the right to access.”

From all this, we reluctantly conclude that the attorney general is not animated by the spirit of open government and is philosophically at odds with the strict impartiality embedded in the Public Records Law’s declaration that it is in the public interest to enable any person to examine and criticize the government’s actions.

And we reiterate a point made before in this space: Any financial burden that disclosure imposes on taxpayers is easily outweighed by the public benefit of ready access to government records.




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