Vt. May See New Public Records Law

Valley News Staff Writer
Saturday, January 13, 2018

Vermont lawmakers and the Secretary of State’s Office say they plan to introduce legislation next week proposing changes to state records and open meeting laws, including the possible hiring of an ombudsman who could handle disputes over the release of government information.

State officials said some of the forthcoming bill’s provisions were partly inspired by proposals from a coalition of journalists and open government groups who are pushing for reform in Vermont, where limited access to records has spurred lawsuits and drawn scrutiny from national watchdogs.

“It’s enshrined in the Vermont constitution that the people have the right to know what their government is up to and (for government) to be accountable for it,” Deputy Secretary of State Chris Winters said on Friday. “It doesn’t matter whether it’s inconvenient or embarrassing — it’s the government’s job to turn it over when asked. The records belong to the public. They don’t belong to the agencies.”

Still, Winters said, members of the public have been running into an almost reflexive instinct on officials’ part to deny requests for records — which, in turn, leaves document seekers little option other than a costly and time-consuming lawsuit.

“Too often, the knee-jerk reaction is to say no and make them appeal that,” he said.

A solution that Secretary of State Jim Condos and other open-government advocates have been requesting for years would be to institute a public records ombudsman: a public official who could hear disputes over records access and issue decisions independently of the government entity fielding a given request.

The House Committee on Government Operations next week plans to take up a bill with recommendations from the Secretary of State’s Office that would include this and other changes, according to Winters and the panel’s chairwoman, state Rep. Maida Townsend.

The upcoming legislation also may clarify various elements of records and open meeting laws, including whether a requester taking photographs of a record should be charged copy fees (the Secretary of State’s Office says “no”) and whether a series of conversations among members of a public board, none of which meet quorum, might constitute a public meeting under the law (“Yes,” says the secretary).

Townsend, a Democrat from South Burlington, confirmed via email on Friday that the bill would be taken up on Thursday and likely would include an ombudsman provision. She declined to discuss more details before the legislation’s introduction, but invited the public to attend the meeting at 9 a.m. in the Vermont Statehouse in Montpelier.

Winters said some of those provisions were inspired by feedback from a coalition of open-government advocates that includes the American Civil Liberties Union’s Vermont chapter, the Vermont Press Association and journalist Hilary Niles, who launched a statewide survey about public access to records.

The ACLU recently released a wish list for records reform that features an ombudsman and several other ideas, including the legal clarifications that Winters mentioned.

For instance, the ACLU is proposing that the state offer fee waivers for requesters or impose penalties for agencies when officials wrongfully deny requests or redact information. Other suggested changes include consolidating the many exemptions to Vermont records law into one place — the law itself.

A wish list shared by Winters did not include all of the items the ACLU was looking for — especially not the consolidation of exemptions, an initiative Winters said could be helpful but might be prohibitively time-consuming, given how many exemptions exist and how widely they are scattered across the law books.

State officials and legislators alike pointed out on Friday that the legislation is in the very earliest stages of consideration, but ACLU officials said they hoped for positive change, whatever may come.

“We hope that this legislation, whatever comes out, will address a lot of these issues that have really made it difficult to obtain public records in Vermont and have led to some conflicts that we think could have been avoided with some fixes,” Chloé White, policy director with VT-ACLU, said on Friday.

In a news release on Thursday, the ACLU cited several recent records battles as evidence for reform, including the weekly newspaper Seven Days’ ongoing scuffle with the city of Burlington over records on the sale of Burlington Telecom, a former Rutland Herald reporter’s suit against the Vermont Agency of Education over school bullying data, and news site VtDigger’s conflict with state officials over documents relating to the EB-5 visa scandal at Jay Peak Resort.

The ACLU also noted that Vermont in 2015 received an “F” grade in access to public information from the Center for Public Integrity, a nonprofit journalism organization based in Washington, D.C.

The poor grade centered mostly on Vermont’s lack of a statewide ethics board, which Montpelier addressed last summer by creating the Vermont Ethics Commission, a five-member panel to hear ethics allegations against state officials.

Winters said the independent ombudsman could be attached to the commission, though he added that the details of the official’s powers and organizational placement were still subject to discussion — assuming the Legislature ultimately decides to create an ombudsman.

As lawmakers move ahead with their discussion, ACLU officials and other stakeholders say they hope to provide more context.

That includes Niles, the freelance journalist who developed an online survey to document Vermonters’ experiences obtaining public records.

Part of her intention, she said on Friday, was to illustrate how access to government was important to everyone and not just journalists or law firms.

One person Niles has spoken to separately from the survey wanted more information about his town’s decision to buy an expensive piece of equipment. Another inquisitive citizen was seeking data about bicycle accidents in hopes of making the roads safer. Yet another was conducting property research on a house he had moved into recently.

“I was familiar with the journalist’s perspective and experience,” Niles said, “but I started to realize that, traditionally, in every study I’ve seen, journalists typically comprise a minority (of records requesters).”

“They’re public records,” she added later. “Not press records.”

Desire for an ombudsman goes back a long way in Vermont — at least as far as Deb Markowitz, who says she supported the idea when she served as Secretary of State from 1998 to 2011.

Often when a state or local agency denies a freedom of information request, it’s the same officials, or their bosses, who hear a record-seeker’s appeal.

After that, Markowitz said on Friday, “the only option is to go to court, and that’s costly and time consuming. And especially for reporters, it means that often it’ll be too late for their story.”

Markowitz added that she knew that producing records could sometimes be burdensome to officials. As head of the Agency of Natural Resources from 2011 to 2017, she kept an employee working nearly full time on requests for documents, she said.

She also noted that education of public officials, especially inexperienced elected officials on the local level, could ease public access to records and cut down on disputes.

Markowitz and others on Friday said it was difficult to directly compare Vermont’s records climate with that of other states.

Jon Margolis, a VtDigger columnist who helped assign Vermont its “F” from the Center for Public Integrity, said he felt “kind of sorry” about the grade. The survey that he completed had several questions about the activities of the state ethics commission, and because the Green Mountain State had none back then, he was forced to mark “zero” each time.

Vermont may have weaker records laws than, say, Florida’s, Margolis said, but it’s not because the state is “corrupt.”

“Because we have not been corrupt,” he said, “we don’t have much in the way of safeguards against corruption.”

Markowitz noted that the same conversations are playing out across America.

“In every state ... these tensions exist — between openness and privacy,” she said.

Rob Wolfe can be reached at rwolfe@vnews.com or 603-727-3242.