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Article mentions PLN public records suit in Vermont

Burlington Free Press, Jan. 1, 2011.
Article mentions PLN public records suit in Vermont - Burlington Free Press 2011

Vermont panel examines public-record laws

MONTPELIER -- It's well-established in law that most government records are public, but what about the records of contractors who do government's business? If a private company is housing state prisoners, how much of that company's records are available to state residents?

Those are among the questions that a special panel of lawmakers mulled Wednesday as they met for the first time to try to tackle public-records issues left undone during the legislative session that ended in May. The summer study committee also plans to study exemptions to the state public-records laws -- numbering 239 -- and determine if they are needed.

The six-member committee plans to delve more deeply into the exemptions at its next meeting in September, but Wednesday the panel wrestled with what to do about private contractors that essentially are fulfilling the function of government.

Lawmakers left the issue out of legislation passed this year after running into complications. Those complications haven't disappeared, as the panel received conflicting advice.

Conor Casey, legislative director for the Vermont State Employees Association, said private contractors sometimes do the exact same work as state employees. They should be subject to the same public scrutiny, he said.

Casey noted that the state contracts with Corrections Corporation of America to house Vermont inmates at several private, out-of-state prisons. Vermont residents should be able to make inquiries about the services CCA provides, even if the state Corrections Department hasn't asked those same questions, he said.

Legislative counsel Michael O'Grady warned the committee that the state might be vulnerable to a lawsuit.

"If you do nothing, I think there will be a court case," he said. "I think people will expect or assume they'll be able to get records."
O'Grady outlined laws in other states, some of which address the issue, but said it was unclear how some of those are implemented. One question Vermont lawmakers need to consider, he said, is where the records request should go: to the private contractor or the state agency overseeing the contract.

Gov. Peter Shumlin is worried that placing new requirements on contractors who do business with the state will end up costing the state money, Shumlin's legal counsel, Beth Robinson, told the committee. As a small state, Vermont has a hard time negotiating some contracts for services, she said. Onerous demands would add to that.

Robinson also warned the committee that it should ask first what information it wants to be public and the best way to ensure that it is, rather than tackle the issue in the abstract.

She warned, too, that requesting existing public documents is not the same thing as posing questions about policy matters or generating new documents. The state can't force a private contractor to answer questions, she said.

Julie Tessler, who represents 16 agencies that deliver mental-health services under state contracts, said the agencies acknowledge that the public has a right to some information but worry about sharing information regarding clients and of the burden of responding to requests.

Other contractors also worry about where the line would be drawn.

If they are required to provide information related to the work they are doing for the state, does that include employee salaries and other company information?

"Does that really open up their entire business model?" Robinson asked. "Frankly the private sector has a different sense of this than the public sector."

Allen Gilbert, executive director of the American Civil Liberties Union, said his organization is suing on behalf of the newspaper Prison Legal News a contractor that provides health services to inmates in Vermont. The contractor failed to provide information that Prison Legal News believes is public, he said.

However, Gilbert said he thinks Vermont law requires records from a contractor doing state business to be public.

Public records study committee

Six members of the Legislature were appointed to a special study committee to look at outstanding issues regarding public records, which held its first meeting Wednesday.