A note on public records from Pat McDonald

Pat McDonald asks: Why isn't Vermont an open book?

The Vermont Public Records Act states: “Under Vermont’s Public Records Act. 1. V.S.A. Sec. 315-320, any person has the right to request inspection or copying of a public record from government agencies, including municipalities.” During my 20-year tenure in a variety of appointed Vermont state government positions, I was frequently tasked with responding to Freedom of Information Act (FOIA) requests. To be perfectly honest, at the time, I regarded these requests as more of an annoyance than a duty. They were time-consuming and took people away from other priority tasks. I always made sure they were completed thoroughly, correctly, and on time, but I must admit a degree of frustration at having to undertake these obligations.

But my feelings about FOIA requests changed on Tuesday, February 18th, when I attended a discussion presented by VTDIGGER about access to public records in Vermont.

The featured speaker for the evening was Professor Peter R. Teachout, known for his expertise in constitutional law. Professor Teachout’s primary message was clear and straightforward: the Vermont Public Records Act is at all times accountable to the people. These records are property of the people of Vermont, and it is the government’s duty to provide transparent access, with a minimum of barriers, whenever a request is filed.

As the Act states, this accountability extends to “any written or recorded information, regardless of physical form or characteristics,” which is produced or acquired in the course of municipal business. Not only does this include official state documents, but several court cases have ruled that public records must be disclosed wherever they reside; personal phones or computers are not exempted. Further, these rules not only apply to official government positions but to private persons or companies doing work for the state or municipalities.

There is broad agreement that the State of Vermont does not have a consistent approach to records management. Records keeping varies drastically from department to department. There is no universal system. Often the need for extensive staff time to navigate this unorganized system is used as a reason to charge exorbitant and barring amounts of money to process FOIA requests. This, of course, is just plain wrong. Vermonters should NOT be on the hook just because the State of Vermont cannot get its act together. It is not the responsibility of the citizens, and it is simply unethical to pass these costs on to those rightfully requesting access to records to which they are entitled.

The panel also noted that some recipients of FOIA requests tend to deny first and then identify a reason why. This, again, is an unethical approach. As citizens, we are entitled to these records. It is the responsibility of our officials to take all steps to fulfill requests, and all efforts should be made to mitigate barriers to access. In one case the courts ruled that the burden is on the State to fulfill requests and any inconvenience to the State is just “too bad.”

Lastly, Vermont has hundreds of FOIA exemptions, creating a long and arduous vetting process that the state must undergo before completing the release of records. This also opens up opportunities for interpretation, meaning that with hundreds of options available, they are bound to be able to come up with several reasons to deny a request. Senator Jeannette White said that she had a committee review the exemptions “a while ago” and decided that it was better to have very specific exemptions rather than the broad definitions in place at the Federal level (they have under 10). These should be reviewed regularly for redundancy, necessity, and legality.
As I listened to this discussion, I began to think of FOIA requests in a different light. I genuinely wish I had heard this discussion 20 years ago. With this newfound appreciation, I have a few recommendations for the State and Legislature.

  • First, the duty to respond to FOIA requests in a timely manner should be a central point in every job description of managers and supervisors in the state government.
  • Training should be provided to all those responsible for FOIA requests.
  • A committee should be formed to review the different records management systems and to implement a uniform system throughout the Government.
  • No one in State or Municipal Government or the Legislature should be allowed to put public records on their personal files for any reason. All public records should be stored on State equipment in accordance with the records management system.
  • As is standard procedure with any employer, employee records should be kept sealed and confidential so long as it is determined that the employee was working in good faith in the performance of his/her job. If it is found that the employee has gone beyond the boundaries of his/her job and has committed a crime or misdemeanor, then the State would charge the employee, and those records would be public.

There was a suggestion made that the State creates an ombudsman position that would be in charge of FOIA requests. I am not convinced that a single person would have the requisite knowledge of or access to every Department’s records - their scope and content. Once every Department is entirely on board with a statewide records management system, perhaps an ombudsman would work, but until that time, individuals within each Department should be responsible for responding to FOIA requests. The State could appoint one person to keep track of each request and ensure a timely response.

There have been some high-profile examples of people receiving exorbitant and unrealistic bills for procuring public records. In some cases, tens-of-thousands-of-dollars are being demanded by the government from private citizens for access to documents to which they are legally entitled. This is contrary to a people’s government. We need to adopt new rules for this fee structure:

  • A fee should be charged for copies and paper only, based on the actual cost of the supplies used.
  • Taking pictures of documents should be free of charge.
  • The State should not charge for record searches just because they have an inefficient filing system.
    Inspecting and redacting is for the benefit of the State, and the burden should not be put on the citizens to pay for this.
  • If there is to be a fee for staff time, it needs to be a set fee and have an affordable maximum.

In his concluding words, Professor Teachout stated, “all power derives from the people,” and we (“the people”) must hold them (“the government”) accountable at all times. Responses to FOIA requests should not be difficult to curate. With a little tweaking, the process could be made more open and transparent. If Vermont truly wants to be an open book, we must have this accountability and transparency in how we treat our public records.

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