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03/11/07
Sunshine Week 2007
Vermont
lawmakers consider adding teeth to open records law
By ROSS SNEYD
Associated Press Writer
MONTPELIER, Vt. (AP) -- Vermont prides itself on open government.
But critics say that too often, that openness does not extend
to the reams of files that state or local governments maintain.
And too often, when a government official improperly withholds
a public record that should have been released, there's no
recourse and no reprimand, they say.
Advocates, government critics and reporters are more likely
to drop their pursuit of a document because it's so difficult
to get, said Allen Gilbert, executive director of the Vermont
chapter of the American Civil Liberties Union.
"I think that what might happen is somebody may challenge
it by saying, 'That's a public document. I want it.' And the
public official says, 'No, it isn't. You're not going to get
it,'" Gilbert said. "And it stops there because
somebody realizes to continue the fight they're going to have
to hire an attorney and pay money, which they probably won't
see even if they win, and that's a real detriment even if
you're right."
The ACLU is part of a coalition working to improve the state's
public records law.
The Vermont Coalition for Open Government wants to eliminate
some of the 207 exemptions the law contains pertaining to
the release of documents. It wants lawmakers to require a
government official found to have violated the requirements
of the law to pay the legal fees of someone who goes to court
to enforce the law.
And it wants some way of enforcing the law.
"A transparent and open government benefits all -- residents,
town officials, school administrators, lawmakers and state
employees," Sabina Haskell, editor of the Brattleboro
Reformer and president of the Vermont Press Association, said
recently in testimony to the Senate Government Operations
Committee. "If there are no consequences to breaking
a law, how effective can it really be?"
The Press Association is a part of the Open Government Coalition,
too, and it spearheaded an effort last year that would have
required judges to award legal fees to a party that successfully
wins a lawsuit after being denied a public record.
The Legislature never resolved that request, instead directing
the Legislative Council to study the existing law to identify
exemptions to records releases. That study found 207 exemptions.
The report included draft legislation that advocates said
might begin to open the process. The proposal calls for the
creation of an "Public Records Advisory Office"
in the secretary of state's office. The new office could offer
advisory opinions about whether a record was appropriately
denied.
Advocates welcomed the idea, although they said it fell far
short of what they were seeking.
But Gov. Jim Douglas, who is a former secretary of state,
said he saw no need for additional bureaucracy. "When
I was secretary of state, I played that role informally,"
he said. He also was unenthusiastic about putting an enforcement
mechanism into the law, but that is a top priority of the
Coalition for Open Government.
"When I break the law speeding -- and I'm a speeder --
my ignorance of the speed limit isn't an excuse," Haskell
said. "I break the law and I get slapped with a fine.
You don't get a (public) record and you're told you should
get the record, there's no way to teach you the lesson. If
everybody who got caught for speeding didn't have any consequences,
we'd all be speeding. I've been trained out of speeding because
it was costing me an arm and a leg."
It's unclear what the Legislature will do. The Senate Government
Operations Committee has taken limited testimony on the issue
and does not plan to take it up again until later in the session.
By the time a bill is acted on, the Legislature would be near
adjournment, so the House wouldn't have time to act until
next year, said Sen. Jeannette White, D-Windham, chairwoman
of the committee.
"It is something we need to tackle, those 207 exemptions
and all of that," White said. "But it won't be this
year."
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