We’re clambering down off our public-records soapbox to make a modest proposal to the Vermont Legislature.
We have railed about the weaknesses of Vermont’s laws on public records and pushed for a more open and transparent system. Vermont journalists got their wish when the Legislature agreed to tackle a four-year project to review all 260 or 280 exemptions in the public records law — exemptions mean the government doesn’t have to disclose the information — and see how many are still needed.
Well, that didn’t turn out so great. When legislators started asking questions about existing exemptions, state agencies came in with requests for MORE exemptions, and nobody wanted to give an inch on exemptions that were already in the law.
Basically, the legislative study committee threw up its hands.
Then Allen Gilbert, who was head of the Vermont ACLU chapter, discovered that there were perhaps 500 or 600 more exemptions to the public records law. Those exemptions weren’t in the law at all; they were in the rules that agencies wrote for themselves, explaining how each law would be carried out.
Our newspapers ran headlong into this problem when Vermont took a small step toward allowing use of medical marijuana. The state government decided to set up three medical marijuana dispensaries, and sought applications from people who wanted to run them. One of the proposals came from Waterbury, but when we tried to find out who was proposing it and where it would be, we were turned down. Nothing in the law said the information about proposed marijuana dispensaries would be kept secret; rather, the Vermont Department of Public Safety made secrecy part of the rules for carrying out the law.
And that has happened hundreds and hundreds of times, across a wide variety of state laws, unbeknownst to most legislators and government officials.
So, our modest proposal is this.
First, if there’s going to be an exemption to the Vermont Public Records Act, require that the exemption be considered and approved by the Legislature, not by faceless bureaucrats who don’t have to answer to the voters.
Second, put every new exemption in the Vermont Public Records Act, right in the law itself. Now, the exemptions are scattered throughout the state’s lawbooks and they’re hard to find.
It would be nice if the Legislature, as it came across these hidden exemptions, made them part of the Public Records Act. But can we at least put the new ones out there in the spotlight, where we all can see them?
Meanwhile, a coalition of journalists and open government advocates, including the ACLU and the Vermont Press Association, are calling on state legislators to reform Vermont’s Public Records Act this year. Further, the Legislature’s lawyers and the Secretary of State’s Office have made similar proposals, which are already being considered by the House Government Operations Committee.
“Vermont’s public records law is premised on the notion that, to be accountable, our government must be transparent. Unfortunately, state agencies routinely ignore that principle and the legal requirements of Vermont’s public records law at tremendous cost to the state and to our democracy,” James Duff Lyall, executive director of the ACLU of Vermont.
The Center for Public Integrity recently gave Vermont an “F” in access to public information.
Vermont’s Public Records Act is extraordinarily complex, outdated, and applied inconsistently, and the best approach “would be to start over,” the ACLU said, borrowing from clearer, sharper laws in other states.
Short of a wholesale replacement, the ACLU makes a number of suggestions, including:
• Require written justifications for redacting or withholding documents.
• Impose penalties for wrongful denials, improper redactions and unlawful delays.
• Waive fees when release of the records in question is in the public interest and for a noncommercial purpose.
• Charge fees only for the cost of copying, not for staff time in searching, compiling, or redacting.
• Prohibit agency “directives” that limit access to public records.
• Make all exemptions expire after five years unless they’re specifically renewed.
• Appoint a public-records ombudsman with decision-making and enforcement powers to intercede in disputes, or create a simplified court process — similar to small claims court — for public records disputes. Now, the only remedy is a Superior Court lawsuit, where legal costs are high.
The four-year study of exemptions went nowhere, and all the problems remain. Vermont needs to simplify and strengthen its public records law.