Editorial: Allowing free inspection of public records is a small price to pay

Wednesday, September 18, 2019

The Vermont Supreme Court this month affirmed an important precept embodied in the state’s Public Records Act, which declares that, “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.”

In overturning a decision by Superior Court Judge Mary Miles Teachout, the justices ruled 3-2 that the Burlington Police Department could not charge people fees to inspect public documents.

The case originated when Reed Doyle, of Burlington, witnessed in a city park what he believed was the use of excessive force by police against young teenagers. When Doyle subsequently sought to view the body camera footage, among other records related to the incident, the police department refused.

Doyle appealed that denial to the police chief, Brandon del Pozo, and was told that under the law, the department would have to heavily redact the records and that Doyle would have to foot the bill for the staff time involved, amounting to several hundred dollars. The American Civil Liberties Union of Vermont sued on Doyle’s behalf, but Teachout, sitting in Washington Superior Court, sided with the police department. The ACLU and Doyle subsequently appealed to the state Supreme Court.

As so often happens, the case turned on a fine but critical distinction. The Public Records Act allows agencies to charge those requesting copies of records for the staff time required to produce them. But in this instance, Doyle did not request a copy to keep and review — he merely wanted to inspect the footage. That, however, required the Burlington Police to copy the video and redact it, while preserving the original.

Chief Justice Paul Reiber, writing for the court’s majority, held that the plain language of the statute makes clear the Legislature’s intent to distinguish between requests for obtaining a copy of a record and requests to inspect such records. Moreover, Reiber noted that the Public Records Act directs courts to liberally construe it in favor of providing “free and open examination of records.”

Why does this distinction matter? Because those requesting public records often don’t know what they contain or how useful they would be to whatever objective they are pursuing. If the records involved are voluminous, for example, it often makes sense for a news reporter to inspect them first to see which ones are useful to the story she is pursuing before asking for copies.

Secretary of State Jim Condos, in a friend-of-the-court brief supporting Doyle’s appeal, noted that the lower court ruling would embolden public agencies to levy charges on those seeking to inspect records. “Pricing out the press,” Condos wrote, would “render transactions of government more invisible, further diminishing accountability.” Precisely.

We are mindful, of course, that the high court’s ruling requires the public to subsidize with their tax dollars the costs incurred when staff time is required in order for public agencies to respond to requests to inspect records. But the cost to society of not allowing free inspection of records is far higher than the cost of producing them. There can be no accountability without the ability to fully and freely examine the actions of government officials.