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PLN editor quoted re Vermont public records requests

Burlington Free Press, Jan. 1, 2011.
PLN editor quoted re Vermont public records requests - Burlington Free Press 2011

Reforming Vermont's public records access proves difficult

By Terri Hallenbeck, Free Press Staff Writer
Friday, February 4, 2011

MONTPELIER — It sounded simple: Give Vermonters someone they can turn for help in obtaining public records without having to go to court.

It might not be simple after all, a legislative committee discovered Thursday.

Although they agree on the goal, the Shumlin administration and the Secretary of State’s Office disagreed about the duties of such an office while others made the case that an office could be detrimental.

"In theory, it sounds like a good idea. In places where it’s been implemented, it’s not all that great," said Paul Wright, editor of Prison Legal News, a Brattleboro-based national magazine that routinely makes public records requests in all 50 states.

The House Government Operations Committee is considering a public records bill that was written by Gov. Peter Shumlin’s staff. Part of the legislation calls for creation of a Government Transparency Office, which would hold hearings to review complaints from those who’ve been denied a public records request.

Secretary of State Jim Condos sees the position as more of an ombudsman than a hearing officer. "A hearing officer may get more lawyers involved," Condos told the House committee.

Beth Robinson, legal counsel to Gov. Peter Shumlin, said she didn’t think it would be appropriate to give an ombudsman the power to rule on cases.

Condos and Shumlin have said they support changes to state public records law that would include providing an outlet for those whose records requests are thwarted by state or local government. For years, those who routinely seek such information have complained that government entities too readily come up with reasons to deny the requests but that challenging those decisions in court is intimidating and costly. They also argue that courts rarely grant attorney’s fees when someone prevails in such a case and that there are virtually no sanctions against municipalities that don’t make records available.

Abigail Winters, associate legal counsel for the Vermont State Employees Association, frequently makes public records requests on behalf of the employees union. She said the state needs to make changes but she does not support the Government Transparency Office that the Shumlin administration outlined.

"I feel very troubled by adding a new administrative hurdle," Winters told the House committee Thursday.

Those are the same concerns Wright said he has found as Prison Legal News makes requests across the country for such information as inspection reports on prisons and investigations into prison deaths. Creating a special office to hear appeals isn’t the answer, he said. "They’re deluding themselves if they think they’re accomplishing anything," Wright said in a phone interview.

Connecticut has a freedom of information commission to which Wright said he has appealed denials for information that was denied to Prison Legal News. As he watched the commission at work, he said, he saw ordinary citizens going up against government agency lawyers — the same as if those citizens had tried to represent themselves in court.

"It’s a real mismatch." he said.

Condos said he agrees. He noted that Vermont has a similar setup with the state Public Service Board and Environmental Board. Few persons would venture before either of those panels without legal representation, he said, and the process is rarely short, simple or inexpensive.

What Vermont needs instead, Wright said, is a change in law that requires judges to award attorney’s fees to those who prevail after appealing public records requests in court, sanctions against agencies that violate the law and the use of federal standards for release of police information.

If a government agency knows it will have to pay for wrongly withholding information, he said, it would be reluctant to do so. He said Texas is an example of a state where public records requests go more smoothly because it has those provisions.

Winters urged legislators to make those changes and said she’d like to see the Secretary of State’s Office also have a role in providing guidance on public records decisions. New York has a similar setup with its Committee on Open Government, whose longtime executive director Robert Freeman provides advisory opinions to citizens and government officials alike on records access and open meetings issues.

Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union, said he’s urging lawmakers to focus on the change in attorney’s fees and police information. Looking at the 23-page bill before legislators he said he fears they’ll decide it’s too big — and would require spending money — and they will end up passing nothing.