By Ross Connelly
Step right up, folks, put your money on the table and pick a shell. Maybe you will win and maybe you won’t. Take a chance, place your bet. Whether or not a person shall be reimbursed court and attorney’s fees on winning a court case seeking a public record or access to a public meeting should not be subject to a shell game. Unfortunately, Gov. Peter Shumlin is playing such a game with the current effort to change “may” to “shall” in the state’s public records/public access law. Last week, Beth Robinson, his legal counsel, said the administration was leaning toward a “shall, unless…”
Most states have a “Public Right To Know” law or a “Sunshine” law and just about all the laws in the other 49 states are better than Vermont’s. The public’s right to know should be pretty straight forward. The public elects representatives from its own people to act on their behalf as a government. The people should have a right to know what that government is doing. The government is, after all, accountable to the people. That’s what a government “of, by and for the people” means. And sunshine laws exist to make sure the people can see their government in action. Unfortunately, Vermont’s law concerning the public’s right to know lacks clear definitions, does not have built in accountability, does not require the government to enforce it and does not have meaningful penalties. Small wonder the law is at the back of the line when it is compared with the laws in other states.
Vermont’s law was first passed in the mid-1970s. Since then, changes have been made and exemptions to having to follow it have been added – there are now in the neighborhood of 260, according to the state archivist. The law is seldom taken to court so there is minimal case law clarifying it and efforts to make it more people friendly have been beaten back. One reason there is little case law is because the cost of challenging the denial of a public record or access to a public meeting must be shouldered by a person seeking a record or who was shut out of a meeting.
The state’s public records/access law appears to be the only law on the books the state is not required to enforce. So, even though the state stepped in at least four times in the past couple of weeks to investigate alleged violations of the law by police, and has stepped in numerous times in the past year or so to minvestigate and prosecute public officials for misdeeds, the state will not investigate and prosecute alleged violations of the right to know law. The attorney general says his job is to defend the state. Apparently, defending state law when it comes to the public’s right to know doesn’t count. Public officials get a free pass in his eyes.
This winter, both the House and Senate Government Operations committees are spending time looking at bills to amend the law. The House version was introduced at the request of the governor in January. This came on the heels of pledges he made during his campaign to open up government and make it transparent. He said then he wanted to appoint a study committee to examine all the exemptions. The bill as introduced calls for the creation of a position in the office of the secretary of state to address disputes over citizen access to public records. The bill also states a court shall award court and attorney’s fees to a citizen if the court orders the release of a public record that has been denied. Last week, the governor and his legal counsel pulled out some shells and put “shall” underneath one of them. They said they now think the bill should state that the court may not be required to grant court and attorney’s fees if it is shown the denial of a public record or access was made in good faith, or because the holder of the public trust thought the law was clear, or the request was made for commercial gain, or no substantial public benefit would result from the court’s ruling. They leave it up to the judge — not the law — to define what all that means.
Vermont citizens deserve a sunshine law that has clear definitions, accountability, enforcement and penalties. One might think the governorwould agree. Last week, he said, “We don’t have anything to hide.” His legal counsel said, “Public accountability is a huge value.”
So long as the governor pedals backward on his own bill, while claiming he is for transparency, Vermont citizens won’t get a law that increases transparency. Why did the governor, all of a sudden, put shall under a shell? Citizens might ask him what game he is playing.
Ross Connelly is editor and co-publisher of the Hardwick Gazette and is a past president of both the New England Press Association and the Vermont Press Association.
This article first appeared in the March 10th print edition of the Vermont Standard.
Governor Plays ‘Shell Of A Shall’ Game
By Ross Connelly