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Vermont ranks low in open government

By Sabina Haskell

Posted March 13, 2007

Editor’s Note: The following was testimony provided by Sabina Haskell, the editor of the Brattleboro Reformer, and president of the Vermont Press Association, on March 2 before the Senate Government Operations Committee. Haskell, and the VPA, are founding members of the Vermont Coalition for Open Government. It is reprinted here with permission.

Good morning; my name is Sabina Haskell and I am the editor of the Brattleboro Reformer. I am also the president of the Vermont Press Association and a founding board member of the newly created Vermont Coalition for Open Government.

The coalition has incorporated bylaws and elected a board of directors. It is applying for the 501C3 nonprofit status. Its mission is to bring together Vermont residents and organizations that have an interest in improving the Vermont's Right-To-Know Laws. A transparent and open government benefits all — residents, town officials, school administrators, lawmakers and state employees.

Among our current member organizations are the Vermont Press Association, Common Cause, the League of Women Voters, the ACLU, the Vermont Association of Broadcasters and the Vermont Association of Licensed Detectives. We also have a number of individuals as members as well.

I am testifying today about Vermont's public records law and the Legislative Council Staff Report on "Public Records in Vermont." As part of my remarks, I would also like to address the draft legislation the committee is reviewing. I do not have a bill number, but the document I will refer to is dated Jan. 16 and was provided to me by the committee.

Let me begin by asking a question: On a scale of 1 to 7, with 1 being "dark," or completely closed and 7 being "sunny," or completely open, how would you rate Vermont's public records law? According to the Marion Brechner Citizen Access Project based at the University of Florida, Vermont only ranks a combined 3.5 over 44 categories measured in all 50 states.

I hope that surprises and dismays you. We in Vermont pride ourselves on being leaders in so many areas: excellence in education, addressing global climate change, providing health care for all Vermonters, just to name a few.

But we are not leaders in being open in doing the people's business. In fact, Vermont ranks 38th in the country for how it defines public records. Only Wisconsin, Utah, Nebraska, Montana, Alabama, Pennsylvania, Arizona, Ohio, New Hampshire, South Dakota, North Dakota, and Nevada are less "open."

And that brings me to the Legislative Council study — a weighty tome (1.5 pounds) of meandering obfuscation intended to keep documents from the public eye.

Suffice it to say that the Legislative Council's study confirms that Vermont's public records law is to open government what Act 60 and 68 are to education funding. They're both impossible to understand and frustrating to use for all concerned.

I don't think we want to be a state that ranks 38th; I don't think we want to tally 206 exemptions — and still climbing — and claim success at being an open and transparent government.

We joke in the newsroom that if we call Secretary of State Deb Markowitz for advice on whether a document is public or not, she will always say, "Well, that depends."

Actually, with 206-plus exemptions, we shouldn't be surprised and we shouldn't find it funny.

Rather, it's appalling. This is not the Vermont way of doing business.

The public records law in Vermont is the problem. No one knows what can be shared (how could they, with more than 206 exemptions), how it can be shared, when it can be shared.

Or you could take the cynical view, which many of us who try to get public documents do. It could be said that the current law serves state employees, town officials, school administrators and lawmakers and other officials well: You can hide behind the incomprehensible list of exemptions — stalling until the requester gives up. That may work in the short-term — keeping the record out of public scrutiny — but the long-term outcome is the ever-increasing mistrust of government and politicians.

It's a real battle for Vermonters, the media and groups like genealogists and private detectives who routinely access public records.

And it's expensive too.

Let me tell you about Oliver Olsen, a resident of Jamaica and a member of the town selectboard.

In 2004, Mr. Olsen requested the following public documents:

• Copies of timesheets for the sheriff, a deputy and a detective.
• Records showing reimbursed or partially reimbursed expenses incurred by the three
• Timesheets and other records that would identify the "whereabouts and activities" of the three for three days in January 2004.

Mr. Olsen was denied the first and third requests under subsections of Vermont public records law. In the second instance, the sheriff was "unable to recall any instance" in which the three incurred a business expense that was reimbursed by the department.

The attorney then proceeded to say, "I have asked that the department's bookkeeper review her records to double-check this. Given the 11-month scope of your request, this may take some time. Please be advised that in accordance with (Vermont public records law) ... there will be a charge of 45 cents for every minute in excess of a half-hour the bookkeeper spends searching for responsive documents."

As we all now know, the sheriff was misappropriating money, resigned in disgrace and was subsequently convicted.

Mr. Olsen's assessment: "So — I'm kept from a public record. I take the matter to court on my own dime, and I get falsified information back. Who picks up the tab? Me."

And that's coming from an elected official in Windham County. I don't want to believe for a minute that is what the Legislature set out to do in crafting its public records law: to create animosity and distrust from those who you are elected to serve.

To conclude, my review of the draft legislation found no provisions for winnowing down the list of 206-plus exemptions, a crucial first step in a true open state government.

The draft bill also fails to apply punitive measures to those who withhold public documents, either knowingly or unknowingly. If there are no consequences to breaking a law, how effective can it really be?

If you need an example, think of the thousands in fines levied against developers by the Agency of Natural Resources — but go uncollected.

The draft bill also fails to provide relief to the requester who has successfully proven that a document is public. The current law allows a judge to decide if the plaintiff will recoup his or her attorney's fees and other costs. I cannot recall such a case in recent memory.

If time and resources are the impediments to accessing public documents, then Vermont has successfully, if unintentionally, turned off the light on open government.

The bill takes a good first step in suggesting the creation of the Public Records Advisory Office. Although there are few details to its jurisdiction and authority, it is a concept that has worked well in other states.

Finally, I would like to take this opportunity to urge you to strike the provision of what I'll call the legislative equivalent of deliberative process that was tucked in to last year's budget act. One of Vermont's highest rankings from the Citizen Access Project comes in the area of legislative public records. And, still that was only a five — making us "somewhat open."

I would be happy to answer any questions you might have and I am also interested to hear from you about the committee's next steps in drafting legislation.

Thank you.