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Putting the public in public records

By Shay Totten | Vermont Guardian

Posted March 15, 2007

MONTPELIER — Access is the key in an open government — access to elected officials and the documents they create that shape the policies, and programs, which affect the lives of thousands.

While Gov. Jim Douglas, and others, like to point out how high Vermont ranks in terms of tax burdens, it’s not likely you’ll hear much from this administration, or any other, about the fact that Vermont ranks near the bottom of being open and accessible to the public in terms of access to government records.

A bill under consideration in the Senate Government Operations Committee would begin to change that; however, it is unlikely at this time that legislation will pass this year. The committee is working diligently on other key bills, including a revision to the state’s campaign finance law. And, the crossover date — the day when bills need to move between the chambers in order to be passed into law — is Friday.

The committee has been working on a bill that takes its lead from a 2005 report commissioned by the Legislature to examine the state of Vermont’s public records system.

“Access and inspection of public records are integral to government accountability,” claimed the report, written by the Office of Legislative Council.

The report found that Vermont’s management system for public records is underfunded, understaffed, and woefully inadequate in its ability to respond to public requests in a timely and efficient manner.

One of the options it recommended was consolidating the record-keeping functions under one office. In most states, the archives division is what sets policy in terms of access to public records, and their long-term storage and maintenance.

It also found that the fees Vermont charges for vital records is about half that of other states.

Electronic record keeping has helped to improve the system, but without clear guidelines, and oversight, this system is also subject to be less open than the law requires.

“Until recently, thorough review of public records could be time consuming due to both poor record keeping and the mechanics of shifting through volumes of paper. Electronic records are still subject to poor records management, but computers accelerate the ability to search and discard unnecessary or poorly managed records,” the report found. “However, the use of electronic records and the Internet has led to increased distribution and, some would argue, misuse of public records and the personal information they contain. Public records custodians are sensitive to the potential for misuse of public records and are often reluctant to disclose public records that contain personal information,” the report found.

This report, and subsequent studies, found 207 exemptions in state law that can keep a public document secret. Some public officials, and the media, are concerned that is too many.

While that is a concern, said Sen. Jeanette White, D-Windham, chairwoman of the Senate committee, the bigger problem to tackle is how to put in place a more transparent, and consistent, records-keeping policy across state government.

From there, White argues, all state agencies will be working from a consistent policy and better know what to release, what to discard, and what to archive.

While a better, more uniform, system is needed across state government, contends Sabina Haskell, president of the Vermont Press Association and editor of the Brattleboro Reformer, trimming back the number of exemptions will help make the system more accountable and open to the public.

“How can anybody know anything with that many exemptions?” asks Haskell. “While I think the management problem is real and does need to be tackled — and I use [White’s] own example of the state not being able to find the original Vermont Yankee contract — I think the exemptions and the fact that there are no punitive damages for withholding records are, in my mind, more important.”

Without consequences to a public official who stalls the release, or knowingly withholds a document, no public record system will work, Haskell said.

The state should create a public records commission, or appoint a person, to handle appeals, or stymied requests, and eke out punishments if state law is broken. This person, or panel, would also be able to help citizens recoup all expenses if their claim is upheld.

The only way for a citizen, or the media, to appeal a records denial in Vermont today is to go through the courts, not any office of state government.

“That’s not the way it’s supposed to be,” said Haskell. “They win when they stall.”
Secretary of State Deb Markowitz agrees that the state needs to winnow its exemptions, and that any new law needs “teeth.”

“Is there a way to put teeth in a new law, because under the current law nobody enforces — only the courts do, not the secretary of state’s office or the attorney general’s office,” said Markowitz.

White said enforcement will come along once there is a better structure for how to create, manage, and store records.

“What we’ve found is sometimes its not being obstructionist, it’s that they can’t find the record,” said White. “There is no unified system for dealing with records in the state, which seems ludicrous. The other part we have to deal with is what do we do with these 207 exemptions.”

White said the committee has talked about putting the oversight of all public records under the purview of the archives division of the secretary of state’s office.

Currently, records management and storage is handled by two parts of state government — the archives division and the Department of Buildings and General Services.

“Nobody has really focused before on records management from the bottom up in our system,” said Markowitz, whose office houses the state archives.

Merging all management of public records into the archives division would allow the state to put in policies that would cover a record from its creation to long-term preservation, Markowitz noted.

“We would know what we should be throwing away or keeping for how long and how we need to store it,” said Markowitz. “It’s not just the press who needs it, it’s the government who needs it, too. With new players every few years and without consistent standards and policies in place, you’ll be destined to make the same mistakes over and over again.”

White said they are also looking at establishing a standing committee that would review all of the exemptions and determine what ones are necessary and which ones are not. And, it would provide ongoing oversight and evaluation of any proposed exemptions. Some of the exemptions, as White understands it, were thrown in during conference committees that occur at the end of each session.

However, White doesn’t expect anything to happen this session, although her committee may get the bill out of the committee.

“Nothing will happen this session unless we feel we really need to do it, and put it on some other bill that comes over that might be germane,” said White.