Healthy skepticism was the rule of the day at the Vermont Press Association’s annual meeting in Montpelier Thursday, where members of the press met to mete out awards, go over business, and most importantly, discuss the future of open record law in Vermont.
Beth Robinson, legal counselor to Governor Shumlin, was on hand to answer questions — or, in several cases — admit that there isn’t an answer, yet.
On the surface, it seems simple. The state’s constitution clearly provides for every Vermont citizen the right to view and copy public records. This is the crux of research and a mark of a true democracy; freedom of information.
In reality, there’s a legalistic thicket of technicalities that could trip up even the most seasoned journalist, researcher or citizen, and the current law also contains a very particular clause that may have those without financial backing hesitating before delving into situations involving open records in the state.
It’s the significant cost of taking matters to court that is the impetus for the proposed change of wording in the records law. At present, parties who’ve sought and received public records as the result of a lawsuit “may” be awarded court costs — and word among those who know is that this rarely happens. With the proposed change in wording, the record-seekers “shall” be awarded court costs — which guarantees they’ll be reimbursed for the costs accrued while obtaining the document.
And then there are the exemptions.
The language in the current bill provides for over 260 exemptions — cases in which the information in question is protected from public view and copying. One may not expect the subscription list of Vermont Life magazine to be a state secret, but it’s protected from public viewing and copying in an exemption. There are other exemptions that may be more obvious; student records at state institutions, for example, or information relating to the identity of library patrons.
Some exemptions seem to be aimed at saving us from ourselves — there is one designed to keep secret the location of archeological sites and underwater historic properties, perhaps out of concern that they’ll be pillaged.
Secretary of State Jim Condos said that his office is ready to work with the Shumlin administration to implement several phases that will make more public records available, accessible and free than at any time in history, and pointed out that a list of exemptions can be found on his web site at www.sec.state.vt.us.
“We need to be saying ‘When in doubt, give it out,’ rather than the current attitude of ‘when in doubt, take me to court!’” Condos said.
One particularly pointed exemption deals with the technicalities of what may be the most frustrating of the exceptions in the open records law when it comes to journalism: the release of information in an ongoing criminal investigation. Vermont State Police public information officer Stephanie Dasaro was on hand to discuss the balance inherent in the relationship between the press and the police.
“We both have the same goals, in a lot of ways,” she said.
Some in the audience made clear their frustration with the muddiness of the current open records bill, and this sentiment came to a head in response to Governor Shumlin’s remarks. Both Shumlin and counsel Beth Robinson confirmed that a strict “May” to “Shall” change might not be in the works. “It might look more like ‘may’ to ‘shall…unless,’” said Robinson. This stance would mandate a judge to award court costs to a party who prevailed in an open records case, unless the judge uses a legal loophole to rule otherwise.
It’s the ‘unless’ that has journalists worried about their ability to obtain records with the knowledge that they won’t be out thousands in court costs.
Is Shumlin’s stance wavering a bit since his campaign, in which he made ‘transparency’ a catchword? It seems so, but only time will tell. He says he is committed to the accessibility of information, and I know this paper, among many others, will be watching closely as the open records bill changes.
This article first appeared in the February 24th print edition of the Vermont Standard, Woodstock VT.