Vermont

Compare

1. Status of requester

The identity of the person requesting a record is irrelevant when determining whether a request under the Public Records Act should be granted. Finberg v. Murnane, 159 Vt. 431, 437, 623 A.2d 979, 983 (Vt. 1992).

Compare

2. Purpose of request

The motive of the person requesting a record is irrelevant when determining whether a request under the Public Records Act should be granted. Finberg v. Murnane, 159 Vt. 431, 437, 623 A.2d 979, 983 (Vt. 1992).

Compare

3. Use of records

Indeed, this right of access is so important that the Vermont judiciary created a separate set of rules — the Vermont Rules for Public Access to Court Records (the “Rules”) — which govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005). Recently, the Vermont Supreme Court made explicit that “[r]equests to courts for public access to case records should be evaluated under the Vermont Rules for Public Access to Court Records,” not the Vermont Public Records Act. In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47¶ 13 (July 19, 2019). These Rules “provide a comprehensive policy on public access to Judicial Branch records . . . [and] [t]hey shall be liberally construed in order to implement the policies therein.” Vt. Pub. Acc. Ct. Rec. Rule 1. The general policy in Vermont with respect to public access to court records is that such records “shall be open to any member of the public for inspection or to obtain copies.” Vt. Pub. Acc. Ct. Rec. Rule 4 (emphasis added). Specifically, the Rules provide that “[t]he public shall have access to all case records, in accordance with the provisions of this rule, except as provided in subsection (b) of this section.” Vt. Pub. Acc. Ct. Rec. Rule 6(a) (emphasis added); see also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT at ¶ 22. The Reporter’s Notes also state that “[i]f the public has access to a proceeding, it has access to a record of the proceeding, unless that record is specifically exempted from disclosure.” Vt. Pub. Acc. Ct. Rec. Rule 1.

The Public Records Act also specifically exempts from coverage the “[r]ecords of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.” 1 V.S.A. § 317(c)(24).

Compare

4. Nongovernmental bodies

Although it has not yet been addressed by the Vermont Supreme Court, Vermont trial courts have applied a “functional equivalence” test, considering whether a private entity from which records are sought is the “functional equivalent of a public agency” and whether the records sought “are within the scope of that equivalency.” See, e.g., Whitaker v. Vt. Info. Tech. Leaders, Inc., No. 781-12-15, 2016 Vt. Super. LEXIS 43, *3-4 (Wash. Super. Ct. Oct. 27, 2016); Prison Legal News v. Corr. Corp. of Am., No. 332-5-13, 2014 Vt. Super. LEXIS 36, *20-21 (Wash. Super. Ct. Jan. 10, 2014); see also Long v. City of Burlington, 2018 VT 103, ¶ 11 (Vt. 2018) (recognizing that trial courts have applied a functional equivalence test but deciding case on other grounds). The predominant factors used to evaluate functional equivalence are: “(1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government.” Whitaker, 2016 Vt. Super. LEXIS at *3-4 (citations omitted) (finding private nonprofit subject to Public Records Act). Applying these factors, at least one Vermont court has held that “the ‘cornerstone’ of the analysis is the first factor—whether and to what extent the entity performs a governmental or public function.” Prison Legal News, 2014 Vt. Super. LEXIS 36 at *20-21 (finding the governmental function factor elevates private contractor to the status of a public agency due to its involvement in the imprisonment of Vermonters).

Compare

5. Multi-state or regional bodies

Not addressed.

Compare

6. Advisory boards and commissions, quasi-governmental entities

Although the Public Records Act makes no such distinction, the open meeting statute expressly exempts “councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy.” 1 V.S.A. § 310(4); see also Browning v. State, No. 272-5-14, 2014 Vt. Super. LEXIS 106, *14-15 (Vt. Super. Wash. County Dec. 10, 2014) (recognizing that the Governor’s Business Advisory Council on Health Care Financing and the Governor’s Consumer Advisory Council on Health Care Reform, whose purpose is to “provide the Governor with advice and information on health care reform,” were exempt from the state’s open meeting law).

Although the University of Vermont operates as a separate corporate entity from the State of Vermont, the Vermont legislature made explicit that UVM “shall be recognized and utilized as an instrumentality of the State for providing public higher education” and provided that the state “shall, from time to time, appropriate such sums as it deems necessary for the support and maintenance of [UVM].” See 16A V.S.A. § 1-1. Thus, the Public Records Act assumes that the University of Vermont or the Vermont State Colleges fall under the definition of public agencies. See 1 V.S.A. § 317(c)(23) (exempting “data, records, or information produced or acquired by or on behalf of faculty, staff, employees, or students of the University of Vermont or the Vermont State Colleges in the conduct of study, research, or creative efforts on medical, scientific, technical, scholarly, or artistic matters . . . until such data, records, or information are published, disclosed in an issued patent, or publicly released by the institution or its authorized agents.”). Similarly, the Vermont Supreme Court has held that the legislature has sufficient authority over the University of Vermont to render it a public body subject to Vermont’s Public Records Act. See State v. Curley-Egan, 2006 VT 95, ¶ 15, 180 Vt. 305, 311-12 (Vt. 2006); Sprague v. Univ. of Vermont, 661 F. Supp. 1132, 1138 (D. Vt. 1987); Animal Legal Defense Fund Inc. v Univ. of Vermont, 159 Vt. 133, 137-38, 616 A.2d 224 (Vt. 1992); see also Caledonian-Record Publ’g Co. v. Vt. State Colleges, 2003 VT 78 ¶, 3, 833 A.2d 1273, 1275 (Vt. 2003) (Vermont State College and Lyndon State College stipulated that they are instrumentalities of the State, and thus subject to the Public Records Act).

Compare

Yes. “An agency may, but is not required to . . . create a public record.” 1 V.S.A. § 316(i). In the event an agency creates a public record on behalf of a requestor, the agency is allowed to recover the cost of the staff time associated with creating the record. See 1 V.S.A. § 316(c)(2); see also Judicial Watch, Inc. v. State, 2005 VT 108, ¶¶ 6, 19, 892 A.2d 191, 195, 200 (Vt. 2005).

Compare

D. Fee provisions

Compare

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Under a 1996 amendment to the statute, the Vermont legislature for the first time granted public agencies and subdivisions the authority to recover costs and fees for providing information under the public records law. Agencies may charge and collect the “actual cost of providing the copy,” including “the costs associated with mailing or transmitting the record by facsimile or other electronic means.” 1 V.S.A. § 316(b).

The 1996 amendment directs the Secretary of State to establish the actual cost of providing a copy of a public record, in order to set the fees that may be charged by state agencies. 1 V.S.A. § 316(d). Once the actual cost is determined, the Secretary of State is required to adopt rules establishing “a uniform schedule of public record charges for State agencies.” Id. Political subdivisions of the State are also directed to “establish actual cost charges for copies of public records,” and to post them “in prominent locations in the town offices.” 1 V.S.A. § 316(e).

Under certain circumstances, agencies and political subdivisions “may also charge and collect the cost of staff time associated with complying with a request for a copy of a public record.” 1 V.S.A. § 316(c). These costs may be recovered if: “(1) the time directly involved in complying with the request exceeds 30 minutes; (2) the agency agrees to create a public record; or (3) the agency agrees to provide the public record in a nonstandard format and the time directly involved in complying with the request exceeds 30 minutes.” Id. Where a request for public records is subject to staff time charges, the agency may require that the request be made in writing and that the charges be prepaid. Id.

Compare

2. Particular fee specifications or provisions

Pursuant to 1 V.S.A. § 316(d), the Vermont Secretary of State has established the following fees as the actual cost of providing a copy of a public record:

For staff time involved in physically duplicating a record, $.33 per minute after the first 30 minutes.
For senior-level staff time, and information technology specialists’ time spent extracting data from databases, or performing similar tasks necessary to comply with a request to create a new public record, $.57 per minute.
For any other staff time for which cost can be charged and collected under this section, $.45 per minute.
For photocopies, $.05 per single-sided page, $.09 per double-sided page for pages up to 8.5 by 14 inches.
For color photocopies, $1.00 per single-sided page.
For computer-generated paper copies, $.02 per page for pages up to 8.5 by 14 inches.
For computer diskettes, $.28 each for 3.5-inch diskettes.
For compact discs, $.86 each for write-once CD w/case, $2.31 each for re-writable CD w/case.
For audio tapes, $.81 each.
For video tapes, $1.69 each.
For DVDs, $2.00 each for write-once DVD w/case, $4.00 each for re-writable DVD w/case.

See Secretary of State, Uniform Fee Schedule, https://www.sec.state.vt.us/archives-records/certifications-fees/uniform-fee-schedule.aspx.

Compare

1. Search obligations

The Vermont Supreme Court recently addressed the scope of an agency’s obligations when conducting a search and held that “[i]n response to a public records request, a public agency must undertake a reasonable search to identify and disclose responsive, nonexempt public records.” Toensing v. Attorney Gen. of Vt., 2017 VT 99, ¶ 35, 178 A.3d 1000, 1012-13 (Vt. 2017). In Toensing, the court clarified that even emails “located in private accounts of state employees or officials” are public records if they were “produced or acquired in the course of agency business.” Id. at ¶ 12, 178 A.3d at 1004. Thus, “the critical question . . . is whether the [agency] conducted a search that was reasonably calculated to uncover all relevant public records.” Id. at ¶ 34, 178 A.3d at 1012 (concluding a “search will be adequate if the specified officials and employees are trained to properly distinguish public and nonpublic records, the agency asks them to in good faith provide any responsive public records from their personal accounts, and they respond in a manner that provides reasonable assurance of an adequate search”). The court rejected the argument that the agency should provide sworn affidavits from agency employees regarding the searches of their personal accounts and indicated that an agency could satisfy the search requirement by relying on affirmations from its employees “that the employee, without exception, has not produced or acquired any records in personal accounts in the course of agency business, or that the employee has identified all potentially responsive records through a specified word search, and has segregated and disclosed all records produced or acquired in the course of agency business as opposed to communications of an exclusively personal nature.” Id.

Compare

2. Proactive disclosure requirements

The Public Records Act requires all public agencies of the executive branch that receive a written request for records under the statute to catalogue the request, including: the date it was received, the agency that received the request, the person making the request, the status of the request, the exemption asserted by the agency if the request was denied or partially fulfilled, the estimate hours necessary to respond to the request, the date the agency closed the request, and the elapsed time between the receipt of the request and the date the agency closed the request. See 1 V.S.A. § 318a. The Vermont Secretary of Administration is required to maintain and update a Public Records Request System on its website containing the information catalogued by each agency. Id. at (a). The website is available here: https://aoa.vermont.gov/statewide-public-record-requests. Each executive agency is also required to post “in a conspicuous location on their respective websites a link to the location on the Agency of Administration’s website where Public Records Request System information is maintained.” 1 V.S.A. § 318a(b)(2).

Compare

3. Records retention requirements

The Public Records Act requires that public records and archival records “should be systematically managed to provide ready access to vital information, to promote the efficient and economical operation of government, and to preserve their legal, administrative, and informational value.” 1 V.S.A. § 317a(a). Moreover, “[a] custodian of public records shall not destroy, give away, sell, discard, or damage any record or records in his or her charge, unless specifically authorized by law or under a record schedule, as defined in 3 V.S.A. § 117(a)(6), that has been approved by the State Archivist.” Id. at (b).

Compare

4. Provisions for broad, vague, or burdensome requests

The Public Records Act contains no exemption for overly broad, vague or burdensome requests. An agency in receipt of such a request will, however, typically respond seeking clarification regarding the scope of the request and notifying the requestor that it will take an additional 10 business days to respond to the request pursuant to 1 V.S.A. § 318(b)(5). In response to broad or burdensome requests, the agency may also request that “all charges be paid, in whole or in part, prior to delivery of the copies.” 1 V.S.A. § 316(c).

Compare

II. Exemptions and other legal limitations

Compare

A. Exemptions in the open records statute

Compare

1. Character of exemptions

The exemptions to disclosure listed in 1 V.S.A. § 317(b) are for the most part specific rather than generalized. Vermont exemptions are patterned in part after the federal exemptions, but do not follow them exactly. Exemptions are to be narrowly construed, and any doubts should be resolved in favor of disclosure. Finberg v. Murnane, 159 Vt. 431, 436, 623 A.2d 979, 982 (1992); Trombley v. Bellows Falls Union High Sch. Dist., 160 Vt. 101, 624 A.2d 857 (1993). The governmental body has the burden of establishing that an exemption applies, and this burden cannot be sustained with conclusory claims or pleadings. Finberg, 159 Vt. at 438. Rather, the defendant must present a specific factual record that supports the exemption claim. Id. There is no exemption that recognizes withholding simply “in the public interest;” disclosure is mandatory unless a record falls within a specific exemption.

Effective January 1, 2019, the Public Records Act provides that “[u]nless otherwise provided by law, a record produced or acquired during the period of applicability of an exemption that is subsequently repealed or narrowed in scope shall, if exempt during that period, remain exempt following the repeal or narrowing in scope of the exemption.” 1 V.S.A. § 317(f) (effective Jan. 1, 2019).

Additionally, effective January 1, 2019, the Public Records Act provides that:

“For any exemption to the Public Records Act enacted or substantively amended in legislation introduced in the General Assembly in 2019 or later, in the fifth year after the effective date of the enactment, reenactment, or substantive amendment of the exemption, the exemption shall be repealed on July 1 of that fifth year except if the General Assembly reenacts the exemption prior to July 1 of the fifth year or if the law otherwise requires.”

Id. § 317(e) (effective Jan. 1, 2019). Moreover, “[l]egislation that enacts, reenacts, or substantively amends an exemption to the Public Records Act shall explicitly provide for its repeal on July 1 of the fifth year after the effective date of the exemption unless the legislation specifically provides otherwise.” Id.

Compare

2. Discussion of each exemption

Section 317(c) of the Public Records Act exempts the following categories of public records from public inspection and copying:

(1) Records which by law are designated confidential or by a similar term.

(2) Records which by law may only be disclosed to specifically designated persons.

(3) Records which, if made public pursuant to this subchapter, would cause the custodian to violate duly adopted standards of ethics or conduct for any profession regulated by the State.

(4) Records which, if made public pursuant to this subchapter, would cause the custodian to violate any statutory or common law privilege other than the common law deliberative process privilege as it applies to the General Assembly and the Executive Branch agencies of the State of Vermont.

(5) (A) Records dealing with the detection and investigation of crime, but only to the extent that the production of such records:

(i) could reasonably be expected to interfere with enforcement proceedings;

(ii) would deprive a person of a right to a fair trial or an impartial adjudication;

(iii) could reasonably be expected to constitute an unwarranted invasion of personal privacy;

(iv) could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;

(v) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecution if such disclosure could reasonably be expected to risk circumvention of the law;

(vi) could reasonably be expected to endanger the life or physical safety of any individual.

(B) Notwithstanding subdivision (A) of this subdivision (5), records relating to management and direction of a law enforcement agency; records reflecting the initial arrest of a person, including any ticket, citation, or complaint issued for a traffic violation, as that term is defined in 23 V.S.A. § 2302; and records reflecting the charge of a person shall be public.

(C) It is the intent of the General Assembly that in construing subdivision (A) of this subdivision (5), the courts of this State will be guided by the construction of similar terms contained in 5 U.S.C. § 552(b)(7) (Freedom of Information Act) by the courts of the United States.

(D) It is the intent of the General Assembly that, consistent with the manner in which courts have interpreted subdivision (A) of this subdivision (5), a public agency shall not reveal information that could be used to facilitate the commission of a crime or the identity of a private individual who is a witness to or victim of a crime, unless withholding the identity or information would conceal government wrongdoing. A record shall not be withheld in its entirety because it contains identities or information that have been redacted pursuant to this subdivision.

(6) A tax return and related documents, correspondence, and certain types of substantiating forms which include the same type of information as in the tax return itself filed with or maintained by the Vermont Department of Taxes or submitted by a person to any public agency in connection with agency business.

(7) Personal documents relating to an individual, including information in any files maintained to hire, evaluate, promote, or discipline any employee of a public agency, information in any files relating to personal finances, medical or psychological facts concerning any individual or corporation; provided, however, that all information in personnel files of an individual employee of any public agency shall be made available to that individual employee or his or her designated representative.

(8) Test questions, scoring keys, and other examination instruments or data used to administer a license, employment, or academic examination.

(9) Trade secrets, meaning confidential business records or information, including any formulae, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which a commercial concern makes efforts that are reasonable under the circumstances to keep secret, and which gives its user or owner an opportunity to obtain business advantage over competitors who do not know it or use it, except that the disclosures required by 18 V.S.A. § 4632 are not exempt under this subdivision.

(10) Lists of names compiled or obtained by a public agency when disclosure would violate a person’s right to privacy or produce public or private gain; provided, however, that this section does not apply to lists which are by law made available to the public, or to lists of professional or occupational licensees.

(11) Student records, including records of a home study student; provided, however, that such records shall be made available upon request under the provisions of the Federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, as may be amended.

(12) Records concerning formulation of policy where such would constitute a clearly unwarranted invasion of personal privacy, if disclosed.

(13) Information pertaining to the location of real or personal property for public agency purposes prior to public announcement of the project and information pertaining to appraisals or purchase price of real or personal property for public purposes prior to the formal award of contracts thereof.

(14) Records which are relevant to litigation to which the public agency is a party of record, provided all such matters shall be available to the public after ruled discoverable by the court before which the litigation is pending, but in any event upon final termination of the litigation.

(15) Records relating specifically to negotiation of contracts, including collective bargaining agreements with public employees.

(16) Any voluntary information provided by an individual, corporation, organization, partnership, association, trustee, estate, or any other entity in the State of Vermont, which has been gathered prior to the enactment of this subchapter, shall not be considered a public document.

(17) Records of interdepartmental and intradepartmental communications in any county, city, town, village, town school district, incorporated school district, union school district, consolidated water district, fire district, or any other political subdivision of the State to the extent that they cover other than primarily factual materials and are preliminary to any determination of policy or action or precede the presentation of the budget at a meeting held in accordance with section 312 of this title.

(18) Records of the Office of Internal Investigation of the Department of Public Safety, except as provided in 20 V.S.A. § 1923.

(19) Records relating to the identity of library patrons or the identity of library patrons in regard to library patron registration records and patron transaction records in accordance with 22 V.S.A. chapter 4.

(20) Information that would reveal the location of archaeological sites and underwater historic properties, except as provided in 22 V.S.A. § 761.

(21) Lists of names compiled or obtained by Vermont Life magazine for the purpose of developing and maintaining a subscription list, which list may be sold or rented in the sole discretion of Vermont Life magazine, provided that such discretion is exercised in furtherance of that magazine’s continued financial viability, and is exercised pursuant to specific guidelines adopted by the editor of the magazine.

(22) [Repealed.]

(23) Any data, records, or information produced or acquired by or on behalf of faculty, staff, employees, or students of the University of Vermont or the Vermont State Colleges in the conduct of study, research, or creative efforts on medical, scientific, technical, scholarly, or artistic matters, whether such activities are sponsored alone by the institution or in conjunction with a governmental body or private entity, until such data, records, or information are published, disclosed in an issued patent, or publicly released by the institution or its authorized agents. This subdivision applies to, but is not limited to, research notes and laboratory notebooks, lecture notes, manuscripts, creative works, correspondence, research proposals and agreements, methodologies, protocols, and the identities of or any personally identifiable information about participants in research. This subdivision shall not exempt records, other than research protocols, produced or acquired by an institutional animal care and use committee regarding the committee’s compliance with State law or federal law regarding or regulating animal care.

(24) Records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.

(25) Passwords, access codes, user identifications, security procedures, and similar information the disclosure of which would threaten the safety of persons or the security of public property.

(26) Information and records provided to the Department of Financial Regulation by a person for the purposes of having the Department assist that person in resolving a dispute with any person regulated by the Department, and any information or records provided by a person in connection with the dispute.

(27) Information and records provided to the Department of Public Service by an individual for the purposes of having the Department assist that individual in resolving a dispute with a utility regulated by the Department, or by the utility or any other person in connection with the individual’s dispute.

(28) Records of, and internal materials prepared for, independent external reviews of health care service decisions pursuant to 8 V.S.A. § 4089f and of mental health care service decisions pursuant to 8 V.S.A. § 4089a.

(29) The records in the custody of the Secretary of State of a participant in the Address Confidentiality Program described in 15 V.S.A. chapter 21, subchapter 3, except as provided in that subchapter.

(30) All State-controlled database structures and application code, including the vermontvacation.com website and Travel Planner application, which are known only to certain State departments engaging in marketing activities and which give the State an opportunity to obtain a marketing advantage over any other state, regional, or local governmental or nonprofit quasi-governmental entity, or private sector entity, unless any such State department engaging in marketing activities determines that the license or other voluntary disclosure of such materials is in the State’s best interests.

(31) Records of a registered voter’s month and day of birth, driver’s license or nondriver identification number, telephone number, e-mail address, and the last four digits of his or her Social Security number contained in a voter registration application or the statewide voter checklist established under 17 V.S.A. § 2154 or the failure to register to vote under 17 V.S.A. § 2145a.

(32) With respect to publicly owned, managed, or leased structures, and only to the extent that release of information contained in the record would present a substantial likelihood of jeopardizing the safety of persons or the security of public property, final building plans, and as-built plans, including drafts of security systems within a facility, that depict the internal layout and structural elements of buildings, facilities, infrastructures, systems, or other structures owned, operated, or leased by an agency before, on, or after the effective date of this provision; emergency evacuation, escape, or other emergency response plans that have not been published for public use; and vulnerability assessments, operation and security manuals, plans, and security codes. For purposes of this subdivision, “system” shall include electrical, heating, ventilation, air conditioning, telecommunication, elevator, and security systems. Information made exempt by this subdivision may be disclosed to another governmental entity if disclosure is necessary for the receiving entity to perform its duties and responsibilities; to a licensed architect, engineer, or contractor who is bidding on or performing work on or related to buildings, facilities, infrastructures, systems, or other structures owned, operated, or leased by the State. The entities or persons receiving such information shall maintain the exempt status of the information. Such information may also be disclosed by order of a court of competent jurisdiction, which may impose protective conditions on the release of such information as it deems appropriate. Nothing in this subdivision shall preclude or limit the right of the General Assembly or its committees to examine such information in carrying out its responsibilities or to subpoena such information. In exercising the exemption set forth in this subdivision and denying access to information requested, the custodian of the information shall articulate the grounds for the denial.

(33) The account numbers for bank, debit, charge, and credit cards held by an agency or its employees on behalf of the agency.

(34) Affidavits of income and assets as provided in 15 V.S.A. § 662 and Rule 4 of the Vermont Rules for Family Proceedings.

(35) [Repealed.]

(36) Anti-fraud plans and summaries submitted for the purposes of complying with 8 V.S.A. § 4750.

(37) Records provided to the Department of Health pursuant to the Patient Safety Surveillance and Improvement System established by 18 V.S.A. chapter 43a.

(38) Records that include prescription information containing data that could be used to identify a prescriber, except that the records shall be made available upon request for medical research, consistent with and for purposes expressed in 18 V.S.A. § 4622 or 9410, 18 V.S.A. chapter 84 or 84A, and for other law enforcement activities.

(39) Records held by the Agency of Human Services or the Department of Financial Regulation, which include prescription information containing patient-identifiable data, that could be used to identify a patient.

(40) Records of genealogy provided in an application or in support of an application for tribal recognition pursuant to chapter 23 of this title.

(41) Documents reviewed by the Victims Compensation Board for purposes of approving an application for compensation pursuant to 13 V.S.A. chapter 167, except as provided by 13 V.S.A. §§ 5358a(b) and 7043(c).

(42) Except as otherwise provided by law, information that could be used to identify a complainant who alleges that a public agency, a public employee or official, or a person providing goods or services to a public agency under contract has engaged in a violation of law, or in waste, fraud, or abuse of authority, or in an act creating a threat to health or safety, unless the complainant consents to disclosure of his or her identity.

See 1 V.S.A. § 317(c).

Compare

B. Other statutory exclusions

Two additional statutory exemptions address unique concerns raised by hazardous wastes and endangered species.

Hazardous Waste. Disclosure of information and documents concerning facilities and sites for the treatment, storage and disposal of hazardous wastes is governed in “substantially the same manner” as under RCRA, 42 U.S.C. chap. 82, and the federal FOIA, 5 U.S.C. § 552 et seq. See 1 V.S.A. § 316(k).

Endangered Species. “The Secretary shall not disclose information regarding the specific location of threatened or endangered species sites except that the Secretary shall disclose information regarding the location of the threatened or endangered species to:

(1) the owner of land upon which the species is located;

(2) a potential buyer of land upon which the species is located who has a bona fide contract to buy the land and applies to the Secretary for disclosure of threatened or endangered species information; or

(3) qualified individuals or organizations, public agencies and nonprofit organizations for scientific research or for preservation and planning purposes when the Secretary determines that the preservation of the species is not further endangered by the disclosure.”

10 V.S.A. § 5410.

Compare

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

There are no exemptions, exclusions or privileges against disclosure that the Vermont courts have developed or extrapolated from the text of the Public Records Act itself. However, the statute specifically exempts records which, if made public, would cause a violation of any statutory or common law privilege. 1 V.S.A. § 317(c)(4). The Vermont Supreme Court has thus held that § 317(b)(4) “brings common-law privileges with their established burdens into the [public records] law.” Killington, Ltd. v. Lash, 153 Vt. 628, 639, 572 A.2d 1368, 1375 (Vt. 1990). In Killington, for example, the Court recognized that a claim of executive privilege may be asserted against a request for information made under the Public Records Act. Id.; see also Herald Ass’n v. Dean, 174 Vt. 350, 355-56, 816 A.2d 474-75 (Vt. 2002) (evaluating claim of executive privilege); New England Coal. for Energy Efficiency & the Env’t v. Office of the Governor, 164 Vt. 337, 339-40, 670 A.2d 815, 817 (Vt. 1995) (upholding assertion of the privilege); Browning v. State, No. 272-5-14, 2014 Vt. Super. LEXIS 106, *2 (Vt. Super. Wash. County Dec. 10, 2014) (same). Similarly, the Vermont Supreme Court has recognized that a claim of attorney-client privilege may be asserted against a request for information made under the Public Records Act. See 232511 Invs., Ltd. v. Town of Stowe Dev. Review Bd., 2005 VT 59, ¶ 1, 878 A.2d 282, 283 (Vt. 2005); see also Carnelli v. State, No. 396-6-14, 2015 Vt. Super. LEXIS 71, *3 (Vt. Super. Wash. County July 7, 2015).

Although at least one superior court judge held that the Vermont Supreme Court would recognize a “deliberative process privilege” that would allow other public agencies “to withhold from public access information of an advisory or deliberative nature that relates to the governmental decision or policy-making process,” Prof’l Nurses Serv., Inc. v. Smith, No. 732-12-04, 2005 Vt. Super. LEXIS 31, *2-3 (Vt. Super. Wash. County July 14, 2005), the Vermont legislature amended the Public Records Act in 2006 to expressly exclude the deliberative process privilege from the group of exempt privileges under 1 V.S.A. § 317(c)(4).

In Judicial Watch, Inc. v. State, 2005 VT 108, ¶ 8, 892 A.2d 191, 195-96 (Vt. 2005), the Vermont Supreme Court upheld an agreement between the Secretary of State and a retiring governor, made pursuant to the State Archives Act, to restrict public access to the governor’s official correspondence for a period of up to ten years. The court held that “notwithstanding the general right of access to public records” under the Public Records Act, the ten-year restriction was “separately authorized and controlled” by the “more specific and exacting legislative requirements” of the Archives Act as to how a retiring governor’s official correspondence shall be placed in the state archives. Id.

Compare

D. Protective orders and government agreements to keep records confidential

Section 317(c)(1)-(2) of the Public Records Act exempts from public inspection and copying “[r]ecords which by law are designated confidential or by a similar term” and “[r]ecords which by law may only be disclosed to specifically designated persons.”

Compare

Records compiled in conjunction with autopsies performed by or at the direction of the Chief Medical Examiner are not considered public records pursuant to 1 V.S.A. § 317. 18 V.S.A. § 5205(g). Autopsies remain confidential and beyond the scope of public records requests even if those reports are provided to the Department of Corrections or the Domestic Violence Fatality Review Commission. 18 V.S.A. § 5205(g); 15 V.S.A. § 1140(d).

Compare

B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Under Vermont’s Public Records Law, the Department of Labor must provide the public with access to Department of Labor records, unless the records are protected from disclosure under specific exemptions in the Law. All findings, conclusions, and determinations of the State Labor Relations Board and the records of all hearings and other proceedings, unless otherwise provided by law, shall be public records. 3 V.S.A. § 929.

Records relating to the Office of Internal Investigation of the Department of Public Safety are specifically exempt from the definition of public records. 1 V.S.A. § 317(c)(18). Title 20, section 1923 allows the state police advisory commission to have full and free access to such records and to share those records with the public “to ensure that proper action is taken in each case.” 20 V.S.A. § 1923(d)(3).

Records collected by the Vermont Patient Safety Surveillance and Improvement System created pursuant to 18 V.S.A., chapter 43A are similarly exempt from disclosure. 1 V.S.A. § 317(c)(37). This system collects data concerning the occurrence of reportable adverse health events and aggregates and analyzes that data for the purpose of developing and implementing strategies to target and eliminate specific adverse events. 8 V.S.A. § 4089f.

The Vermont Food and Lodging Program is responsible for licensing and conducting inspections of food service establishments serving the public. The State of Vermont’s online portal provides the public with ready access to information on licensing and inspection reports. This information can be accessed at www.healthvermont.gov/health-environment/food-lodging/inspection-reports.

Similarly, the Vermont Agency of Transportation provides access to vehicle crash report data at http://apps.vtrans.vermont.gov/CrashPublicQueryTool/.

Compare

C. Bank records

“Account numbers for bank, debit, charge, and credit cards held by an agency or its employees on behalf of the agency” are exempt from disclosure. V.S.A. § 317(c)(33).

Compare

D. Budgets

Records of interdepartmental and intradepartmental communications in any county, city, town, village, town school district, incorporated school district, union school district, consolidated water district, fire district, or any other political subdivision of the State are exempt from disclosure to the extent those communications include preliminary information that precedes the presentation of the budget at a public meeting. 1 V.S.A. § 317(c)(17).

Compare

E. Business records, financial data, trade secrets

Trade secrets, financial data, tax returns and other confidential commercial information are generally closed.

The following records are exempt from disclosure:

“Trade secrets, meaning confidential business records or information, including any formulae, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which a commercial concern makes efforts that are reasonable under the circumstances to keep secret, and which gives its user or owner an opportunity to obtain business advantage over competitors who do not know it or use it[.]”

1 V.S.A. § 317(c)(9). The Vermont Supreme Court has read the exemption regarding trade secrets broadly enough to include records submitted by bidders to state agencies when competing for government contracts. See Springfield Terminal Ry. Co. v. Agency of Transp., 174 Vt. 341, 349, 816 A.2d 448, 455 (Vt. 2002) (refusing to “interpret § 317(c)(9) in a manner that causes potential contractors and service providers to withhold information essential to the state in its selection process of competitive bids”); see also Long v. City of Burlington, 2018 VT 103, ¶ 27 (Vt. 2018) (affirming denial of public records request seeking an unredacted financial feasibility study provided by a private developer to a contractor hired by the City of Burlington to assess the viability of the developer’s plans).

“[T]ax return[s] and related documents, correspondence, and certain types of substantiating forms which include the same type of information as in the tax return itself filed with or maintained by the Vermont Department of Taxes or submitted by a person to any public agency in connection with agency business” are exempt from disclosure. 1 V.S.A. § 317(c)(6).

Compare

F. Contracts, proposals and bids

Open except to the extent they contain information subject to an exemption, such as: “information pertaining to appraisals or purchase price of real or personal property for public purposes,” which is exempt from disclosure prior to the formal award of the contracts, see 1 V.S.A. § 317(c)(13), trade secrets or confidential business records, id. at (c)(9), or financial information submitted in connection with agency business, id. at (c)(6). The Vermont Supreme Court has, however, read the exemption regarding trade secrets broadly enough to include records submitted by bidders to state agencies when competing for government contracts. See Springfield Terminal Ry. Co. v. Agency of Transp., 174 Vt. 341, 349, 816 A.2d 448, 455 (Vt. 2002) (refusing to “interpret § 317(c)(9) in a manner that causes potential contractors and service providers to withhold information essential to the state in its selection process of competitive bids”); see also Long v. City of Burlington, 2018 VT 103, ¶ 27 (Vt. 2018) (affirming denial of public records request seeking an unredacted financial feasibility study provided by a private developer to a contractor hired by the City of Burlington to assess the viability of the developer’s plans).

Moreover, “[r]ecords relating specifically to negotiation of contracts, including collective bargaining agreements with public employees” are exempt from disclosure. 1 V.S.A. § 317(c)(15); see also Negotiations Comm. of Caledonia Cent. Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶¶ 24-25 (Vt. 2018).

Compare

G. Collective bargaining records

“Records relating specifically to negotiation of contracts, including collective bargaining agreements with public employees” are exempt from disclosure. 1 V.S.A. § 317(c)(15); see also Negotiations Comm. of Caledonia Cent. Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶¶ 24-25 (Vt. 2018).

Compare

H. Economic development records

The Vermont Economic Development Authority (“VEDA”) was created by the General Assembly in 1974 to lead in the area of economic development. 10 V.S.A. § 7 requires an entity seeking economic development assistance to fill out a form approved by the agency granting assistance stating “the number of new jobs that will be created or existing jobs that will be retained as a result of such assistance, the wages and employee benefits associated with such jobs, and a description of any other public benefits associated with such economic development assistance.” 10 V.S.A. § 7(b). These forms remain confidential for 90 days “[a]fter the expiration of such 90 day period such statements and information shall not be considered confidential, and may be inspected and copied pursuant to 1 V.S.A. chapter 5, subchapter 3 (public records law), notwithstanding the provisions of any other law.” 10 V.S.A. § 7(b). Economic development recipients are also required to fill out an annual report detailing whether and how the recipient met their development goals. The statute is silent as to whether these forms are also subject to disclosure as a public record. 10 V.S.A. § 7(c).

If VEDA has exhausted all rights and remedies to enforce the terms of a financing document or mortgage serving as security for a loan, the identity of the borrower and the outstanding principal balance of the loan shall become a public record. 10 V.S.A. § 217(d).

Information relating to the cost of any qualified project undertaken through the infrastructure bank program is considered a public record, and subject to the provisions of 1 V.S.A. chapter 5, subchapter 2.” 10 V.S.A. § 280y.

Compare

I. Election Records

In 2011, the Vermont Supreme Court determined that cast ballots are subject to public records requests after the 90-day, post-election waiting period is complete. Price v. Town of Fairlee, 2011 Vt 48, ¶¶ 13-18, 190 Vt. 66, 72-75, 26 A.3d 26, 31-33. The 90-day waiting period is designed to maintain the integrity of cast ballots in the event of a recount, but once the 90 days has lapsed, the state cannot deny access to such ballots. Id. After 90 days, the state is also permitted to destroy any ballots in its possession, unless there is a pending public records request. 17 V.S.A. § 2590(d) (“[B]allots and tally sheets shall be retained for a period of 90 days from the date of the election, after which time they may be destroyed.”).

Certain voter information will be excluded from public records requests including “a registered voter’s month and day of birth, driver’s license or nondriver identification number, telephone number, e-mail address, and the last four digits of his or her Social Security number contained in a voter registration application or the statewide voter checklist established under 17 V.S.A. § 2154 or the failure to register to vote under 17 V.S.A. § 2145a.” 1 V.S.A. § 317(c)(31). If a public records request is pending, state and local governments are not permitted to destroy the ballots even after the 90 day waiting period has passed.

Records relating to names removed from the voter checklist are subject to disclosure; however, records relating to a person’s decision not to register to vote or to the identity of the voter registration agency through which any particular voter registered are not subject to disclosure. 17 V.S.A. § 2150(a)(7).

The available voter records shall include:

(A) in the case of each name removed from the checklist, a clear statement of the reason or reasons for which the name was removed; (B) in the case of the updating of the checklist required by subsection (c) of this section, the working copy or copies of the checklist used in the name by name review conducted to ascertain continued eligibility to vote; (C) the total number of new registrations occurring during the period between general elections; (D) the total number of persons removed from the checklist during the period between general elections; and (E) lists of the names and addresses of all persons to whom notices were sent under this subsection, and information concerning whether or not each person to whom a notice was sent responded to the notice as of the date that inspection of the records is made.

17 V.S.A. § 2150(a)(7).

Compare

J. Emergency Medical Services records

Not specifically addressed. However, Vermont directly prohibits disclosure of “[i]nformation relating to customer name, address, and any other specific customer information collected, organized, acquired, or held by . . . the entity operating a public safety answering point or administering the Enhanced 911 database[.]” 30 V.S.A. § 7059(c); see also 30 V.S.A. § 7055(b). This type of information in the hands of an emergency service provider is not public information and is exempt from disclosure under 1 V.S.A. chapter 5, subchapter 3. 30 V.S.A. § 7059(c).

Further, “[a]ll persons receiving confidential information . . . shall use it solely for the purposes of providing emergency 911 services, and shall not disclose such confidential information for any other purpose.” 30 V.S.A. § 7055(b).

Compare

K. Gun permits

Gun permits are not required in Vermont; therefore, there are no such records.

Compare

L. Homeland security and anti-terrorism measures

No specific discussion in statute or case law, but such materials may fall under the exemptions for information which, if disclosed, would compromise the safety of people or the security of public property, see 1 V.S.A. §§ 317(c)(25), (32), or the exemption for records dealing with the detection and investigation of a crime. Id. at (c)(5).

Compare

M. Hospital reports

Information provided by hospitals in order to obtain a license to operate is not subject to disclosure. 18 V.S.A. § 1910. Records related to hospital budget reviews are available, provided that individual patients or health care practitioners shall not be directly or indirectly identifiable. 18 V.S.A. § 9457.

The public has limited access to documents related to disciplinary complaints against medical professionals. 26 V.S.A. § 1318. The public has access to a register of complaints, which includes summaries of the complaint and the investigation, but does not include the name of the medical professional. Id. § 1318(c)(1). Should the complaint result in disciplinary charges or a stipulation, then additional information about the medical professional and claimant will be released. Id. § 1318(B).

Generally, patients have the right to expect that all communications and records pertaining to his or her care shall be treated as confidential. “Only medical personnel, or individuals under the supervision of medical personnel, directly treating the patient, or those persons monitoring the quality of that treatment, or researching the effectiveness of that treatment, shall have access to the patient’s medical records.” 18 V.S.A. § 1852.

Compare

N. Personnel records

Closed, except to the employee, if they involve “personal documents” which include “information in any files maintained to hire, evaluate, promote, or discipline any employee of a public agency, information in any files relating to personal finances, medical or psychological facts concerning any individual or corporation.” See 1 V.S.A. § 317(c)(7).

Compare

1. Salary

“Individual salaries and benefits of and salary schedules relating to elected or appointed officials and employees of public agencies shall not be exempt from public inspection and copying.” 1 V.S.A. § 317(b).

Compare

2. Disciplinary records

Compare

O. Police records

Records dealing with the detection and investigation of crime are exempt from disclosure, but only to the extent that the production of such records:

“(i) could reasonably be expected to interfere with enforcement proceedings;

(ii) would deprive a person of a right to a fair trial or an impartial adjudication;

(iii) could reasonably be expected to constitute an unwarranted invasion of personal privacy;

(vi) could reasonably be expected to endanger the life or physical safety of any individual.”

1 V.S.A. § 317(c)(5).

The Vermont Supreme Court has clarified, however, that “arrest records are not records dealing with the investigation and detection of crime, but rather are the product of such an investigation.”
Caledonian-Record Publ’g Co. v. Walton, 154 Vt. 15, 23 (1990). Recently, the Vermont Supreme Court held that “the public has a right to access the affidavit of probable cause because it is an agency record that falls outside of the PACR Rules and does not qualify as confidential under the PRA.” Oblak v. Univ. of Vt. Police Servs., 2019 VT 56, ¶ 16 (Vt. 2019).

Compare

1. Accident reports

The Vermont State Police provide access to vehicle crash reports at http://apps.vtrans.vermont.gov/CrashPublicQueryTool/ and https://data.vermont.gov/Public-Safety/Vermont-State-Police-Traffic-Fatalities-Heat-Map/5cvv-iwpr?category=Public-Safety&view_name=Vermont-State-Police-Traffic-Fatalities-Heat-Map.

7. Victims

“[A] public agency shall not reveal . . . the identity of a private individual who is a witness to or victim of a crime, unless withholding the identity or information would conceal government wrongdoing.” 1 V.S.A. § 317(c)(5)(D). However, the statute prohibits an agency from withholding a document in its entirety because it contains such identifying information; instead the identifying information must be redacted. Id.

Compare

8. Confessions

Not addressed, however, it may fall within the exemption regarding detection and investigation of crime contained in 1 V.S.A. § 317(c)(5).

Compare

9. Confidential informants

Records dealing with the detection and investigation of crime are exempt from disclosure, including records that:

“could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.”

A public record includes “any written or recorded information, regardless of physical form . . ., which is produced or acquired in the course of public agency business.” 1 V.S.A. § 317(b). Thus, body-worn camera videos would constitute public records under the Public Records Act. There is, however, no specific law on access to body-worn camera records.

The Vermont Supreme Court has analyzed a public records request to inspect body camera footage from the Burlington Police Department, finding that “state agencies may not charge for staff time spent responding to requests to inspect public records”--including body-worn camera records–”pursuant to the PRA.” Doyle v. City of Burlington Police Dep't, 2019 VT 66, ¶ 12 (2019). If any requests for police video, are, however, subject to the exemptions contained in 1 V.S.A. § 317(c), including: 1 V.S.A. § 317(c)(5) (records dealing with the detection and investigation of crime) and 1 V.S.A. § 317(c)(14) (records relevant to an ongoing litigation in which the public agency is a party of record), that can be withheld.

Compare

15. Biometric data (e.g., fingerprints)

Vermont maintains a state DNA data bank which includes DNA samples of all persons convicted of a felony or other specified crimes. See 20 V.S.A. § 1931 et seq. All samples collected are confidential, see 20 V.S.A. § 1941, and thus exempt from disclosure under the Public Records Act. 1 V.S.A. § 317(c)(1).

Compare

16. Arrest/search warrants and supporting affidavits

Under the Vermont Public Records Act, records dealing with the detection and investigation of crime are exempt from disclosure, but only to the extent that the production of such records:

(i) could reasonably be expected to interfere with enforcement proceedings;

(ii) would deprive a person of a right to a fair trial or an impartial adjudication;

(iii) could reasonably be expected to constitute an unwarranted invasion of personal privacy;

(vi) could reasonably be expected to endanger the life or physical safety of any individual.

1 V.S.A. § 317(c)(5).

The Vermont judiciary created a separate set of rules—the Vermont Rules for Public Access to Court Records—which govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005). The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords of the issuance of a search warrant, until the date of the return of the warrant, unless sealed by order of the court,” as well as "[r]ecords of the denial of a search warrant by a judicial officer, unless opened by order of the court.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(15)-(16). The record of the issuance of a search warrant will become accessible on the execution of the warrant unless sealed pursuant to § 7(a) of the Vermont Rules for Public Access to Court Records. In determining whether to seal warrant issuance records, the court must apply the standards contained in In re Sealed Documents, 172 Vt. 152, 161-63, 772 A.2d 518, 526-28 (Vt. 2001).

The Vermont Supreme Court has clarified, however, that “arrest records are not records dealing with the investigation and detection of crime, but rather are the product of such an investigation.” Caledonian-Record Publ’g Co. v. Walton, 154 Vt. 15, 23 (1990). Recently, the Vermont Supreme Court held that “the public has a right to access the affidavit of probable cause because it is an agency record that falls outside of the [Public Access to Court] Rules and does not qualify as confidential under the PRA.” Oblak v. Univ. of Vt. Police Servs., 2019 VT 56, ¶ 16 (Vt. 2019). The Court found that the fact that the police agency filed the record with the court did not change its status as an agency record. Id. at ¶ 12.

Compare

17. Physical evidence

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords produced or created in connection with discovery in a case in court, including a deposition, unless used by a party (i) at trial or (ii) in connection with a request for action by the court.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(9); see also Herald Ass’n v. Judicial Conduct Bd., 149 Vt. 233, 239, 544 A.2d 596, 600 (Vt. 1988) (denying access to discovery material in the possession of, but not filed with, the Judicial Conduct Board).

Pursuant to V.R.C.P. 5(d), most discovery requests and responses are not filed unless they will be used in a proceeding and, in practice, most discovery records are not introduced into evidence in the case.

“Because these records are not considered by the court in resolving contested issues in the case, and are now considered to be private rather than public, they are not subject to the general rule on disclosure of court records. However, any discovery that is used in the case will be open under this section.”

Reporter’s Notes, Vt. Pub. Acc. Ct. Rec. Rule 6.

Compare

P. Prison, parole and probation reports

Prior to sentencing, a court shall order a presentencing investigation report or a parole summary relating to the defendant. Even a redacted report is not subject to disclosure unless the requesting party has “a proper interest in the report of parole summary” and the best interest or welfare of the defendant makes the action desirable or helpful. 28 V.S.A. § 204(d)(1).

The State of Vermont maintains a register of individuals who ask to be notified of the parole interview or review of an inmate by the parole board. 28 V.S.A. § 403. That list is not subject to disclosure. 28 V.S.A. § 403(4).

During incarceration, detainees can be tracked using “JailTracker,” available at https://omsweb.public-safety-cloud.com/jtclientweb/(S(si53lihcj2yeonzuj5aokwki))/jailtracker/index/Vermont. This includes information such as the charges, booking date and bond amount.

While the Public Records Act does not specifically address the availability of probation records, 28 V.S.A. § 205(b) states that a crime victim shall have the right to request and receive from the Department of Corrections information regarding the offender’s general compliance with the specific conditions of probation. 28 V.S.A. § 205(b). Further, Vermont draws a distinction between criminal history reports and criminal conviction reports. A criminal history report provides all arrest and disposition information including pending, acquitted or dismissed charges. Criminal history information is only available to the person of record. A criminal conviction report provides only conviction information submitted by the court. Criminal conviction reports are available to anyone at https://secure.vermont.gov/DPS/criminalrecords/.

4. Deeds, liens, foreclosures, title history

For individuals, recorded deeds, mortgage documents, easements, liens, powers of attorney, and other document recordings are managed by the Town Clerk in each Vermont township. Few townships provide online access.

Compare

5. Zoning records

Not addressed. However, individual cities and towns appear to provide information regarding zoning permits. For information on zoning in the City of Burlington, visit https://www.burlingtonvt.gov/PZ/Zoning.

Compare

T. School and university records

Compare

1. Athletic records

“Student records, including records of a home study student” are exempt from disclosure. 1 V.S.A. § 317(c)(11). “[H]owever, that such records shall be made available upon request under the provisions of the Federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, as may be amended.” Id.

(This section is blank.)

Compare

U. State guard records

Vermont National Guard records are grouped into two categories – those regarding service members who were discharged, retired, or died in service 62 years or more ago and those that were discharged, retired, or died in service less than 62 years ago.

For records regarding a service member who was discharged, retired, or died in service more than 62 years ago, those records are considered archival records and are open to the public. The Privacy Act of 1974 does not apply to archival records, therefore, written authorization from the veteran or next-of-kin is not required. In order to protect the privacy of the veteran, his/her family, and third parties named in the records, the personal privacy exemption of the Freedom of Information Act (5 U.S.C. 552 (b) (6)) may still apply and may preclude the release of some information.

For records regarding a service member who was discharged, retired, or died in service less than 62 years ago, those records are subject to restrictions imposed by Department of Defense regulations, the provisions of the Freedom of Information Act (FOIA) and the Privacy Act of 1974. Generally, requests must be submitted using Form “SF 180 – Request Pertaining to Military Records” and must include a signature from the service member whose records are the subject of the request. SF 180 forms are available at http://vt.public.ng.mil/Contact-Us/.

3. Death certificates

New requirements for the safety and security of birth and death certificates went into effect on July 1, 2019. Now, only family members, legal guardians, and certain court-appointed parties or their legal representatives can apply for a certified copy of a death certificate, as explained here: http://www.healthvermont.gov/health-statistics-vital-records/vital-records-population-data/death. For death certificates, a funeral home or crematorium may apply for a certified copy.

Compare

4. Infectious disease and health epidemics

Healthcare providers are required to report diagnoses of certain communicable diseases as well as any illness, disease, injury or death identified by the department of health as likely to be caused by a weapon of mass destruction. 13 V.S.A. § 3504(a)(1); 18 V.S.A. § 1001. Information collected pursuant to 13 V.S.A. § 3504(a)(1) or 18 V.S.A. § 1001 is considered privileged and confidential. 13 V.S.A. § 3504(g); 18 V.S.A. § 1001.

All information and reports in connection with persons who have venereal diseases shall be regarded as absolutely confidential and for the sole use of the Board of Health in the performance of its duties hereunder, and such records shall not be accessible to the public nor shall such records be deemed public records. 18 V.S.A. § 1099.

Vermont will provide medical testing to the victims of sexual violence and the results of such testing shall remain confidential. 13 V.S.A. § 3256(g)(2).

Compare

IV. Procedure for obtaining records

Compare

A. How to start

Compare

Compare

5. Availability of expedited processing

The Vermont Public Records Act does not provide for expedited processing of a request. This is likely because the time-frame provided in the statute is very short—no more than three business days from the receipt of a public records request. 1 V.S.A. § 318(a)(1)(A).

Compare

There is no state ombudsman; however, the Vermont Legislature recently considered a measure that would create an independent ombudsman position that would be charged with reviewing records that have been blocked from release to determine whether state agencies are adequately protecting the public’s right to know.

Compare

3. Other

Compare

E. Court action

Compare

1. Who may sue?

“Any person aggrieved by the denial of a request for public records” can file a court action at the trial level to obtain a de novo review of the administrative decision; the court’s review can include in camera inspection, and the court is specifically authorized to segregate disclosable from non-disclosable records. 1 V.S.A. § 319(a). The agency bears the burden of persuading the court that the refusal to disclose is correct.

Compare

2. Priority

The court is directed to expedite Public Records Act cases and give them priority “except as to cases the court considers of greater importance.” 1 V.S.A. § 319(b).

Compare

3. Pro se

Permitted.

Compare

4. Issues the court will address

Compare

Declaratory judgment is a possibility, although not specifically mentioned, to set up future guidelines. No published cases in Vermont have analyzed a declaratory judgment claim under the Public Records Act.

Compare

5. Pleading format

There is no prescribed format for pleadings — a simple complaint will do — in the appeal to superior court from the agency head.

Compare

6. Time limit for filing suit

There is no stated time limit on the appeal to superior court from the agency head.

Compare

7. What court?

The aggrieved requester can file suit in any county where he or she resides, or works, or where the records are located, or in the superior court for the county that includes Montpelier, the state capital. 1 V.S.A. § 319(a).

Compare

8. Burden of proof

Where an aggrieved requestor files suit:

“[T]he court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in section 317 of this title, and the burden of proof shall be on the public agency to sustain its action.”

1 V.S.A. § 319(a).

Compare

9. Judicial remedies available

The primary remedy available is that the court will simply order the release of all or part of the requested records. 1 V.S.A. § 319(a). If the agency has not honored the request because of the magnitude or difficulty of the request, but is not objecting on substantive grounds, the court can grant additional time to comply if the agency demonstrates “due diligence” and “exceptional circumstances.” 1 V.S.A. § 319(c).

Compare

10. Litigation expenses

Compare

a. Attorney fees

Reasonable attorneys’ fees and other litigation expenses are mandatory if the aggrieved requestor substantially prevails. 1 V.S.A. § 319(d)(1). Despite the use of the word “shall” in the statute, at least one Vermont court has read into the statute a measure of discretion in the terms “reasonably” and “substantially prevailing.” See Prison Legal News v. Corr. Corp. of Am., No. 332-5-13, 2015 Vt. Super. LEXIS 91, *5-7 (Wash. Super. Ct. Sept. 1, 2015) (awarding attorneys’ fees in the amount of 40% of fees claimed). Attorneys’ fees and other litigation costs also may be assessed if the public entity concedes that the documents are public records and provides the records within the time to answer under the Vermont Rules of Civil Procedure. Id. at (d)(2). Finally, if the person seeking the records violates Rule 11 of the Vermont Rules of Civil Procedure, attorneys’ fees and other litigation costs may be assessed against him or her. Id. at (d)(3).

Earlier this year, the Vermont Supreme Court held that the attorneys’ fees provision of the Public Records Act precludes the award of attorneys’ fees to substantially prevailing self-represented litigants, even if they are attorneys. Toensing v. Attorney Gen. of Vt., 2019 VT 30, ¶ 23 (Vt. 2019).

Compare

b. Court and litigation costs

Attorneys’ fees and other litigation expenses are mandatory if the aggrieved requestor substantially prevails. 1 V.S.A. § 319(d)(1). Attorneys’ fees and other litigation costs also may be assessed if the public entity concedes that the documents are public records and provides the records within the time to answer under the Vermont Rules of Civil Procedure. Id. at (d)(2). Finally, if the person seeking the records violates Rule 11 of the Vermont Rules of Civil Procedure, attorneys’ fees and other litigation costs may be assessed against him or her. Id. at (d)(3).

Compare

11. Fines

“A person who willfully destroys, gives away, sells, discards, or damages a public record without having authority to do so shall be fined at least $50.00 but not more than $1,000.00 for each offense.” 1 V.S.A. § 320.

Compare

12. Other penalties

If the court orders production of the records, finds that they were improperly withheld, orders payment of legal fees and costs, and “additionally” finds that the denial “raise[s] questions” of arbitrary or capricious action by the agency, then the “Department of Human Resources if applicable to that employee” must promptly hold proceedings to see if any disciplinary action is warranted. 1 V.S.A. § 320(a). If the court’s disclosure order is not obeyed, the court may punish for contempt the “responsible employee or official, and in the case of a uniformed service, the responsible member.” Id. § 320(b).

Compare

13. Settlement, pros and cons

Settlement at an early stage is advisable if the records sought can be obtained. Vermont courts generally display a conservative attitude toward court awards of attorneys' fees, and it may be difficult for a person suing successfully to recover all fees. See Prison Legal News v. Corr. Corp. of Am., No. 332-5-13, 2015 Vt. Super. LEXIS 91, *5-7 (Wash. Super. Ct. Sept. 1, 2015) (awarding attorneys’ fees in the amount of 40% of fees claimed).

Compare

F. Appealing initial court decisions

Compare

1. Appeal routes

Vermont does not have an intermediate appellate court, therefore any appeal of the trial court’s decision, will be to the Vermont Supreme Court.

Compare

2. Time limits for filing appeals

Any appeal of the trial court’s decision, which is to the Vermont Supreme Court, must be accomplished within 30 days of the decision using ordinary appellate procedures and rules. 1 V.S.A. § 319(b) provides that, as with proceedings before the superior court, appeals shall be “expedited in every way,” including being assigned “for argument at the earliest practicable date.”

Compare

3. Contact of interested amici

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.

Compare

G. Addressing government suits against disclosure

Compare

Open Meetings

Compare

I. Statute - basic application

Compare

A. Who may attend?

The Vermont Open Meeting Law, 1 V.S.A. §§ 310-314, is silent as to its specific beneficiaries. Because the law is premised on art. 6 of the Vermont Constitution, however, it applies to all “the people” of the state, including corporations. See Valley Realty & Dev. Inc. v. Town of Hartford, 165 Vt. 463, 685 A.2d 292 (1996); Cent. Vt. Pub. Service Corp. v. Town of Springfield, 135 Vt. 436, 379 A.2d 677 (1977). The law itself echoes that broad principle: “All meetings of a public body are declared to be open to the public at all times, except as provided in Section 313 [executive sessions].” 1 V.S.A. § 312(a).

Compare

B. What governments are subject to the law?

The law is applicable to all levels, “political subdivisions” and branches of Vermont government, unless specifically exempted, and particularly local and town government because there is no “home rule” authority in Vermont.

Compare

1. State

Yes. The Vermont Open Meeting Law is applicable to “any board, council, or commission of the State or one or more of its political subdivisions, any board, council, or commission of any agency, authority, or instrumentality of the State or one or more of its political subdivisions, or any committee of any of the foregoing boards, councils, or commissions” with the exception of “councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy.” 1 V.S.A. § 310(4).

The Open Meeting Law applies to boards, councils, commissions, committees, and not to individual officials. 1 V.S.A. § 310(4).

Compare

b. Are certain executive functions covered?

Yes. The Open Meeting Law requires that “[a]ll meetings of a public body . . . be open to the public at all times.” 1 V.S.A. § 312(a). A meeting is defined as “a gathering of a quorum of the members of a public body for the purpose of discussing the business of the public body or for the purpose of taking action.” Id. § 310(3)(A). Public bodies are defined as:

“any board, council or commission of the state or one or more of its political subdivisions, any board, council or commission of any agency, authority or instrumentality of the state or one of its political subdivisions, or any committee of any of the foregoing boards, council or commissions, except that ‘public body’ does not include councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy.”

1 V.S.A. § 310(4).

Compare

c. Are only certain agencies subject to the act?

No, all agencies are subject to the Open Meeting Law. The Vermont Open Meeting Law is applicable to “any board, council, or commission of the State or one or more of its political subdivisions, any board, council, or commission of any agency, authority, or instrumentality of the State or one or more of its political subdivisions, or any committee of any of the foregoing boards, councils, or commissions” with the exception of “councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy.” 1 V.S.A. § 310(4).

Compare

2. Legislative bodies

The legislature is governed by the law in drafting its own rules, as it is allowed to do under chapter II of the Vermont Constitution. 1 V.S.A. § 313(c).

Compare

3. Courts

The “judicial branch” and the Public Utility Commission are completely exempt from the open meeting law. See 1 V.S.A. § 312(e). The Vermont judiciary has created its own set of rules governing the access by the public to the records of all courts and administrative offices of the Judicial Branch of the State of Vermont. See Vt. Pub. Acc. Ct. Rec. Rule 1.

Compare

4. Nongovernmental bodies receiving public funds or benefits

Although it receives less than 25 percent of its total budget from the State, the University of Vermont is still a public body because, inter alia, it is chartered by the State, the Governor is an ex officio trustee, and the legislature appoints additional trustees. See Sprague v. Univ. of Vt., 661 F. Supp. 1132, 1138 (D. Vt. 1987); Animal Legal Defense Fund Inc. v Univ. of Vt., 159 Vt. 133, 137-38, 616 A.2d 224 (Vt. 1992). The Vermont Supreme Court has reiterated this holding, noting that the legislature had sufficient authority over UVM to render it a public body subject to Vermont’s Open Meeting Law and Public Records Act. State v. Curley-Egan, 2006 VT 95, ¶ 15, 180 Vt. 305, 311-312 (Vt. 2006).

With the exception of the rulings that the University of Vermont is covered by the law, the Vermont courts have not addressed whether nongovernmental bodies receiving public funds or benefits are subject to the Open Meeting Law.

Compare

5. Nongovernmental groups whose members include governmental officials

Although it receives less than 25 percent of its total budget from the State, the University of Vermont is still a public body because, inter alia, it is chartered by the State, the Governor is an ex officio trustee, and the legislature appoints additional trustees. See Sprague v. Univ. of Vt., 661 F. Supp. 1132, 1138 (D. Vt. 1987); Animal Legal Defense Fund Inc. v. Univ. of Vt., 159 Vt. 133, 137-38, 616 A.2d 224 (Vt. 1992). The Vermont Supreme Court has reiterated this holding, noting that the legislature had sufficient authority over UVM to render it a public body subject to Vermont’s Open Meeting Law and Public Records Act. State v. Curley-Egan, 2006 VT 95, ¶ 15, 180 Vt. 305, 311-312 (Vt. 2006).

Compare

6. Multi-state or regional bodies

Not addressed.

Compare

7. Advisory boards and commissions, quasi-governmental entities

The Open Meeting Law contains a carve-out for “councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy.” 1 V.S.A. § 310(4); see also Browning v. State, No. 272-5-14, 2014 Vt. Super. LEXIS 106, *14-15 (Vt. Super. Wash. County Dec. 10, 2014) (recognizing that the Governor’s Business Advisory Council on Health Care Financing and the Governor’s Consumer Advisory Council on Health Care Reform, whose purpose is to “provide the Governor with advice and information on health care reform” were exempt from the state’s open meeting law).

Compare

8. Other bodies to which governmental or public functions are delegated

The “deliberations” of any boards or agencies or commissions acting in a judicial or quasi-judicial capacity are not subject to the open meeting law. 1 V.S.A. § 312(e). Moreover, if a written decision will be issued in a quasi-judicial proceeding, that too need not be adopted at a public meeting. Id. § 312(f). In practice, however, many local boards, such as planning commissions and zoning boards of adjustment, often debate and vote on subdivision or zoning permit applications in public, and also allow public comment even though it is not statutorily mandated in quasi-judicial proceedings. Id. § 312(h).

If the parole board chooses to meet at a correctional facility, then attendance at and access to such a meeting may be subject to “security rules” established by the superintendent of the facility. 1 V.S.A. § 312(i).

Compare

9. Appointed as well as elected bodies

The Vermont Open Meeting Law makes no distinction between appointed and elected bodies. Rather, it is applicable to “any board, council, or commission of the State or one or more of its political subdivisions, any board, council, or commission of any agency, authority, or instrumentality of the State or one or more of its political subdivisions, or any committee of any of the foregoing boards, councils, or commissions” with the exception of “councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy.” 1 V.S.A. § 310(4).

2. Nature of business subject to the law

Compare

a. "Information gathering" and "fact-finding" sessions

The Open Meeting Law defines a meeting as “a gathering of a quorum of the members of a public body for the purpose of discussing the business of the public body or for the purpose of taking action.” 1 V.S.A. § 310(3)(A). The business of the public body is defined as “the public body’s governmental functions, including any matter over which the public body has supervision, control, jurisdiction, or advisory power.” 1 V.S.A. § 310(1). Thus, there is no substantive limitation on or definition of the types of business that may be conducted by the board or body in public, except, again, for the provisions for executive session that expressly define those subject matters that may (but are not required to) be discussed in private meetings. The Vermont Supreme Court recently clarified that “gathering for the purpose of ‘discussing the business of the public body,’ 1 V.S.A. § 310(2), implies unilateral committee action — a committee gathering to manage its own affairs.” Negotiations Comm. of Caledonia Cent. Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶ 17, 184 A.3d 236, 243 (Vt. 2018).

Compare

b. Deliberation toward decisions

Compare

1. Regular meetings

Compare

a. Definition

The Open Meeting Law requires that “[a]ll meetings of a public body . . . be open to the public at all times.” 1 V.S.A. § 312(a). The Open Meeting Law defines a meeting as “a gathering of a quorum of the members of a public body for the purpose of discussing the business of the public body or for the purpose of taking action.” 1 V.S.A. § 310(3)(A).

Compare

b. Notice

The timing and placement of notices for regular meetings are controlled by other “statute[s], charter[s], regulation[s], ordinance[s], bylaw[s], resolution[s], or other determining authorit[ies] of the public body,” not the law. 1 V.S.A. § 312(c)(1). If a meeting or proceeding is to be adjourned or continued, then it is sufficient notice if the “time and place” of the next meeting is publicly announced before adjournment. Id. § 312(c)(4).

At least 48 hours prior to a regular meeting, the agenda for that meeting must be “posted to a website, if one exists, that the public body maintains or designates as the official website of the body” and, “in the case of a municipal public body, posted in or near the municipal office and in at least two other designated public places in the municipality.” Id. § 312(d)(1). Moreover, “[a] meeting agenda shall be made available to a person prior to the meeting upon specific request.” Id. § 312(d)(2).

Compare

c. Minutes

Minutes must be prepared that cover “all topics and motions that arise,” and they must “give a true indication of the business of the meeting.” 1 V.S.A. § 312(b)(1). The minutes must minimally include the members present and all “active participants,” all proposals or motions made or considered and their disposition, and the results of any vote(s) or roll call(s) taken. Id. The minutes are public records and must be made available upon request from the body’s clerk or secretary five days after the meeting. Id. § 312(b)(2).

Compare

2. Special or emergency meetings

Compare

a. Definition

“Special meetings” are not defined in the Vermont Open Meeting Law. The statute provides that emergency meetings “may be held only when necessary to respond to an unforeseen occurrence or condition requiring immediate attention by the public body.” 1 V.S.A. § 312(c)(3).

Compare

b. Notice requirements

The time, place, and purpose of a special meeting must be publicly announced “at least 24 hours prior to the meeting” and “some public notice” for an emergency meeting must be given “as soon as possible” prior to the meeting. 1 V.S.A. §§ 312(c)(2)-(3).

For special meetings, “[m]unicipal public bodies shall post notices of special meetings in or near the municipal clerk’s office and in at least two other designated public places in the municipality, at least 24 hours before the meeting.” 1 V.S.A. §§ 312(c)(2). The statute also requires that notice “be given, either orally or in writing, to each member of the public body at least 24 hours before the meeting, except that a member may waive notice of a special meeting.” Id.

If the media has filed a written request for notification of any special meetings with a public body, then during that calendar year (or the next year if the written request is filed in December) that media entity shall be given notice of any such meeting. 1 V.S.A. § 312(c)(5). The statute is silent as to special notice of “emergency” meetings; it is likely this notice provision would be extended to that situation.

Additionally, “at least 24 hours prior to a special meeting, a meeting agenda shall be: (A) posted to a website, if one exists, that the public body maintains or designates as the official website of the body; and (B) in the case of a municipal public body, posted in or near the municipal office and in at least two other designated public places in the municipality.” Id. § 312(d)(1). Moreover, “[a] meeting agenda shall be made available to a person prior to the meeting upon specific request.” Id.

Compare

c. Minutes

The minutes requirements for regular meetings apply. See 1 V.S.A. § 312(b)(1) (“Minutes shall be taken of all meetings of public bodies.”)

Compare

3. Closed meetings or executive sessions

Compare

a. Definition

The authority of any public body to go into executive session is limited only to those instances in which the body is to consider specific topics or types of action enumerated in 1 V.S.A. § 313(a). Section 313(a) provides that:

“ [A] public body may not hold an executive session except to consider one or more of the following:

(1) after making a specific finding that premature general public knowledge would clearly place the public body or a person involved at a substantial disadvantage:

(A) contracts;

(B) labor relations agreements with employees;

(C) arbitration or mediation;

(D) grievances, other than tax grievances;

(E) pending or probable civil litigation or a prosecution, to which the public body is or may be a party;

(F) confidential attorney-client communications made for the purpose of providing professional legal services to the body;

(2) the negotiating or securing of real estate purchase or lease options;

(3) the appointment or employment or evaluation of a public officer or employee, provided that the public body shall make a final decision to hire or appoint a public officer or employee in an open meeting and shall explain the reasons for its final decision during the open meeting;

(4) a disciplinary or dismissal action against a public officer or employee; but nothing in this subsection shall be construed to impair the right of such officer or employee to a public hearing if formal charges are brought;

(5) a clear and imminent peril to the public safety;

(6) records exempt from the access to public records provisions of section 316 of this title; provided, however, that discussion of the exempt record shall not itself permit an extension of the executive session to the general subject to which the record pertains;

(7) the academic records or suspension or discipline of students;

(8) testimony from a person in a parole proceeding conducted by the Parole Board if public disclosure of the identity of the person could result in physical or other harm to the person;

(9) information relating to a pharmaceutical rebate or to supplemental rebate agreements, which is protected from disclosure by federal law or the terms and conditions required by the Centers for Medicare and Medicaid Services as a condition of rebate authorization under the Medicaid program, considered pursuant to 33 V.S.A. §§ 1998(f)(2) and 2002(c);

(10) security or emergency response measures, the disclosure of which could jeopardize public safety.”

Vermont Courts interpreting 1 V.S.A. § 313(a)(1) have determined that whether the “substantial disadvantage” standard is met must be determined on a “case by case analysis,” and the public body bears the burden of making the demonstration. Blum v. Friedman, 172 Vt. 622, 624, 782 A.2d 1204, 1206 (Vt. 2001); Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 104, 624 A.2d 857, 860 (Vt. 1993); see also Berlickij v. Town of Castleton, 327 F. Supp. 2d 371, 382-83 (D.Vt. 2004) (finding town violated open meeting law by closing meeting in which collective bargaining agreement was discussed without any showing that public knowledge of the issue would have placed town at any sort of disadvantage).

The Vermont Supreme Court has held that a public body’s discussion of a confidential document to which an exemption under the Public Records Act may ultimately apply does not automatically render the document subject to disclosure, and the failure to go into executive session does not violate the Public Records Act. See 232511 Invs., Ltd. v. Town of Stowe Dev. Review Bd., 2005 VT 59, ¶¶ 4-5, 878 A.2d 282, 284 (Vt. 2005).

Compare

b. Notice requirements

The only statutorily required notice in advance of an executive session is by specific motion at the public meeting itself, which must “indicate the nature of the business of the executive session.” 1 V.S.A. § 313(a). The vote to go into executive session must be public and duly recorded in the minutes. Id.

Compare

c. Minutes

Minutes of the executive session need not be taken, but if they are they are also not public. 1 V.S.A. § 313(a). However, the executive session is basically only an opportunity for consideration and discussion; no “formal or binding action” may be taken in the executive session itself, except for the “securing of real estate options.” Id.

Compare

d. Requirement to meet in public before closing meeting

The procedure for invoking an executive session is as follows: an affirmative vote of the members of the public body (2/3 of those present for any body of state government; a majority of those present for any local body, such as a municipality) must be taken in an open meeting and the vote recorded in the minutes. 1 V.S.A. § 313(a). The motion to enter executive session must indicate the “nature of the business” to be discussed, and nothing else may be considered. Id.

Compare

A. Exemptions in the open meetings statute

Compare

1. Character of exemptions

I. Licensing examinations

Presumed open, unless treated as evaluation of public employee. 1 V.S.A. § 313(a)(4).

Compare

J. Litigation, pending litigation or other attorney-client privileges

Closed if public body finds that premature public knowledge would clearly place public body at a substantial disadvantage. 1 V.S.A. § 313(1)(C), (E), (F).

Compare

K. Negotiations and collective bargaining of public employees

Compare

1. Any sessions regarding collective bargaining

Open unless the public body finds that premature public knowledge would clearly place the public body at a substantial disadvantage. 1 V.S.A. §§ 313(a)(1)(A)-(B) (providing that a public body may hold an executive session at a meeting covered by the Open Meeting Law to consider “contracts” and “labor relations agreements with employees,” but only after “making a specific finding that premature general public knowledge [of the matter] would clearly place the public body or a person involved at a substantial disadvantage”).

Compare

2. Only those between the public employees and the public body

Closed. The Vermont Supreme Court recently held that the Open Meeting Law does not apply to labor negotiations between a district school board or its designee and the employees of the school district. Negotiations Comm. of Caledonia Cent. Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶ 33, 184 A.3d 236, 249 (Vt. 2018) (holding that the contract-bargaining negotiations are not “meetings” under the Open Meeting Law).

Compare

L. Parole board meetings, or meetings involving parole board decisions

Closed only if meeting involves testimony by person who could suffer physical or other harm as a result of public disclosure of identity. 1 V.S.A. § 313(a)(8).

Compare

M. Patients, discussions on individual patients

Closed if involves consideration of document or record which is deemed confidential under Public Records Act. 1 V.S.A. § 313(a)(6).

Compare

Closed if the discussion concerns the academic records, suspension, or discipline of a student. 1 V.S.A. § 313(a)(7); see also Caledonian-Record Publ’g Co. v. Vt. State Colleges, 2003 VT 78, ¶ 11-12, 833 A.2d 1273, 1277-78 (Vt. 2003) (affirming denial of a request for access to student disciplinary records and proceedings).

Compare

IV. Procedure for asserting right of access

Compare

Compare

1. Where to ask for ruling

Compare

a. Administrative forum

Prior to filing an action in court, an aggrieved party must provide the public body with written notice alleging the violation and requesting a specific cure of such violation. 1 V.S.A. § 314(b)(1).

Compare

b. State attorney general

To date, there have been no enforcement actions brought by the Vermont Attorney General’s Office. Vermont’s former attorney general repeatedly told reporters during his tenure that he did not feel it was the role of his office to prosecute violations of the Open Meeting Law. The state’s new attorney general, elected in 2016, seems more inclined to getting involved, however he has not yet brought any enforcement actions.

Compare

c. Court

Compare

2. Applicable time limits

Prior to filing an action in court, an aggrieved party must provide the public body with written notice alleging the violation and requesting a specific cure of such violation. 1 V.S.A. § 314(b)(1). The public body must respond within 10 days of receiving the written notice of the alleged violation either: (1) acknowledging the violation and stating an intent to cure the violation within 14 days or (2) stating that no violation has occurred and no cure is necessary. Id. at (b)(2). If the public body does not respond within 10 days, it is treated as a denial of the violation. Id. at (b)(3). Within 14 days after the acknowledgment of a violation, the public body must cure the violation at an open meeting by either: (1) ratifying or declaring as void any action taken in violation of the statute or (2) adopting specific measures that actually prevent future violations. Id. at (b)(4).

Compare

3. Contents of request for ruling

Prior to filing an action in court, an aggrieved party must provide the public body with written notice alleging “a specific violation” of the Open Meeting Law and requesting a specific cure of such violation. 1 V.S.A. § 314(b)(1).

Compare

4. How long should you wait for a response

The public body must respond within 10 days of receiving the written notice of the alleged violation either: (1) acknowledging the violation and stating an intent to cure the violation within 14 days or (2) stating that no violation has occurred and no cure is necessary. 1 V.S.A. § 314(b)(2). If the public body does not respond within 10 days, it is treated as a denial of the violation. Id. at (b)(3). Within 14 days after the acknowledgment of a violation, the public body must cure the violation at an open meeting by either: (1) ratifying or declaring as void any action taken in violation of the statute or (2) adopting specific measures that actually prevent future violations. Id. at (b)(4). Following an acknowledgement or denial of a violation and, if applicable, following expiration of the 14 day cure period for public bodies acknowledging a violation, an aggrieved party may file suit for injunctive relief or declaratory judgment. Id. at (c).

Compare

5. Are subsequent or concurrent measures (formal or informal) available?

In practice, interested persons — e.g., news reporters — try to make their concerns known to the public body as loudly and as early as possible, in the hopes that logic, or more likely political acumen, will influence the body’s decision not to go into a questionably legitimate executive session. The reality is that almost all such situations are likely to have already occurred, especially where local boards typically meet in the evening hours, before there is even an opportunity to pursue judicial relief.

Compare

C. Court review of administrative decision

Compare

1. Who may sue?

“[T]he Attorney General or any person aggrieved by a violation of the provisions of this subchapter may bring an action in the Civil Division of the Superior Court in the county in which the violation has taken place for appropriate injunctive relief or for a declaratory judgment.” 1 V.S.A. § 314(c). The Vermont Supreme Court has held that a plaintiff “must plead sufficient injury to a protected interest to show they are aggrieved under the statute and therefore have standing to challenge any alleged violation of the law.” Town of Brattleboro v. Garfield, 2006 VT 56, ¶¶ 16-19, 904 A.2d 1157, 1163-64 (Vt. 2006); see also Blum v. Friedman, 172 Vt. 622, 624, 782 A.2d 1204, 1207 (Vt. 2001) (holding plaintiff pled sufficient injury where he was denied admission to a meeting at which the town was conducting negotiations but not taking any formal action). In Town of Brattleboro, the court affirmed the trial court’s dismissal of the Open Meeting Law claim because the plaintiff failed to allege how he was harmed by the town’s failure to post a copy of the notice the requisite twenty-four hours in advance of the meeting. Town of Brattleboro, 2006 VT at ¶ 19, 904 A.2d at 1164.

Compare

2. Will the court give priority to the pleading?

The court is directed to expedite open meeting cases and give them priority “[e]xcept as to cases the court considers of greater importance.” 1 V.S.A. § 314(c).

Compare

3. Pro se possibility, advisability

Permitted.

Compare

Compare

8. Judicial remedies available

The court may grant appropriate injunctive relief or may enter declaratory judgment on behalf of an aggrieved party. 1 V.S.A. § 314(c). Because the open meeting law provides remedies for “the curtailment of free speech [caused] by holding improper executive sessions” and for “violations of the rights to observe and participate in the discussion and decision making of local government,” a plaintiff cannot maintain a suit for damages for the same injuries under articles 13 (freedom of speech) or 10 (due process) of the Vermont Constitution. Berlickij v. Town of Castleton, 248 F. Supp. 2d 335, 341-42 (D. Vt. 2003).

Compare

9. Availability of court costs and attorney's fees

Attorneys’ fees and other litigation expenses are mandatory if the aggrieved requestor substantially prevails unless the court finds that the public body: (1) had a reasonable basis in fact and law for its position and the acted in good faith; or (2) the public body cured the violation within 24 calendar days of receipt of written notice of the alleged violation. 1 V.S.A. § 314(d). Attorneys’ fees also may be assessed if the public entity concedes that any documents at issue are public.

Compare

10. Fines

A person who is a member of a public body who knowingly and intentionally violates the open meeting law may be fined up to $500. 1 V.S.A. § 314(a).

Not addressed.

Compare

C. Can a public body limit comment?

There is a public right to a “reasonable opportunity” to comment and “express opinion” on any matter under consideration at an open meeting, “as long as order is maintained” and “subject to reasonable rules established by the chairperson.” 1 V.S.A. § 312(h). One of the limitations frequently implemented by the chair of the board is a limitation on the amount of time for each speaker. The right to comment does not apply to any quasi-judicial proceeding. Id.

Compare

D. How can a participant assert rights to comment?

Some boards allow public comment at the start of the meeting while others place it as the final agenda item. Some boards allow public comment whenever anyone present has something to add to the discussion. The chair of the board may establish reasonable rules to maintain order and reasonable limitations on the amount of time for each speaker are not unusual or improper.

Compare

E. Are there sanctions for unapproved comment?

Not addressed.

Compare

Appendix

Compare

Open Government Guide

Author

Foreword

Open Records

I. Statute

A. Who can request records?

1. Status of requester

2. Purpose of request

3. Use of records

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

1. Executive branch

2. Legislative bodies

3. Courts

4. Nongovernmental bodies

5. Multi-state or regional bodies

6. Advisory boards and commissions, quasi-governmental entities

7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

2. What physical form of records are covered

3. Are certain records available for inspection but not copying?

4. Telephone call logs

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

b. Can the requester obtain a customized search of computer databases to fit particular needs

c. Does the existence of information in electronic format affect its openness?

d. Online dissemination

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

2. Particular fee specifications or provisions

3. Provisions for fee waivers

4. Requirements or prohibitions regarding advance payment

5. Have agencies imposed prohibitive fees to discourage requesters?

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

2. Availability of an ombudsman

3. Commission or agency enforcement

F. Are there sanctions for noncompliance?

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

3. Records retention requirements

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

2. Discussion of each exemption

B. Other statutory exclusions

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

C. Bank records

D. Budgets

E. Business records, financial data, trade secrets

F. Contracts, proposals and bids

G. Collective bargaining records

H. Economic development records

I. Election Records

J. Emergency Medical Services records

K. Gun permits

L. Homeland security and anti-terrorism measures

M. Hospital reports

N. Personnel records

1. Salary