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Vermont

Open Government Guide

Author

Robert B. Hemley, Esq.
Erin M. Moore, Esq.

GRAVEL AND SHEA
76 St. Paul Street
P.O. Box 369
Burlington, VT 05402
(802) 658-0220
Fax: (802) 658-1456
rhemley@gravelshea.com
emoore@gravelshea.com

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Foreword

The fundamental principle of accountability of persons engaged in the work of government has been a part of the Vermont Constitution from the beginning: “all power being originally inherent in, and consequently, derived from, the people; therefore, all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.” Vt. Const. of 1777, ch. 1, § V.  The common law similarly has long recognized that Vermont’s citizens have a right to inspect public records and to attend the meetings and proceedings of any government body. Matte v. Winooski, 129 Vt. 61, 63, 271 A.2d 830, 831 (Vt. 1970); Bain v. Clark, 2012 VT 14, ¶ 17, 44 A.3d 170, 176-77 (Vt. 2012).  This fundamental right of every Vermont citizen encompasses not only the “right to know” but also the right to be present, to be heard, and to participate. State v. Vermont Emergency Bd., 136 Vt. 506, 508, 394 A.2d 1360, 1361 (Vt. 1978).

 

Vermont’s “right to know” laws are codified in two short pieces of legislation, the Open Meeting Law, 1 V.S.A. §§ 310-314, and the Public Records Act, 1 V.S.A. §§ 315-320. Both laws are somewhat broadly stated and are not explained by any published legislative history. Several opinions by the Vermont Supreme Court have held that both statutes are to be liberally construed in order to implement the twin policy goals of open access and public disclosure. See, e.g., Negotiations Comm. of Caledonia Central Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶ 18, 184 A.3d 236 (Vt. 2018); Trombley v. Bellows Falls Union High Sch. Dist., 160 Vt. 101, 624 A.2d 857 (Vt. 1993). Indeed, the Vermont Supreme Court has held “open access to governmental records is a fundamental precept of our society.”  Shlansky v. City of Burlington, 2010 VT 90, ¶ 12, 13 A.3d 1075, 1081 (Vt. 2010).

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Open Records

I. Statute

PUBLIC RECORDS ACT

“Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment. All people, however, have a right to privacy in their personal and economic pursuits, which ought to be protected unless specific information is needed to review the action of a governmental officer. Consistent with these principles, the general assembly hereby declares that certain public records shall be made available to any person . . . . To that end, the provisions of this subchapter shall be liberally construed. . . .” 1 V.S.A. § 315.

The Public Records Act has recently been amended, with certain changes going into effect on January 1, 2019 and others going into effect on July 1, 2019.  See 1 V.S.A. § 317.  These changes primarily impact the expiration and renewal process for exemptions to the statute

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A. Who can request records?

“Any person may inspect or copy any public record of a public agency.”  1 V.S.A. § 316(a). There is no limitation on or definition of the term “person.” Neither the motivation of the requester nor her or his use of the information or documents creates any restrictions. Shlansky v. City of Burlington, 2010 VT 90, ¶ 11, 13 A.3d 1075, 1080-81 (Vt. 2010); Finberg v. Murnane, 159 Vt. 431, 437, 623 A.2d 979, 983 (Vt. 1992). However, if records are sought by a party for use in a pending or ongoing litigation, they will likely be exempt from disclosure as “relevant to litigation” under 1 V.S.A. § 317(c)(14). See Wesco Inc. v. Sorrell, 2004 VT 102, ¶ 17, 865 A.2d 350, 356 (Vt. 2004).

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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).

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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).

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3. Use of records

The use to which someone plans to put the documents is irrelevant when determining whether a request under the Public Records Act should be granted.  See Finberg v. Murnane, 159 Vt. 431, 437-438, 623 A.2d 979, 983 (Vt. 1992).  However, Vermont courts have been very clear that “the public records request process should not be used to enlarge the scope of discovery or permit parties litigating with the government to do an end run around discovery rules.”  Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 22, 865 A.2d 350, 358 (Vt. 2004); see also Killington, Ltd. v. Lash, 153 Vt. 628, 646, 572 A.2d 1368, 1379 (Vt. 1990) (holding that permitting disclosure of government work-product documents “would create an unwarranted advantage for parties in litigation with the government, since whatever lay outside the scope of discovery under Rule 26 would be accessible through the Access to Public Records statute”).

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

The Vermont Public Records Act applies to all branches, departments, agencies and subdivisions of the state; since there is no “home rule” authority in Vermont, it also applies to all county, municipal and town governments and all of their boards and commissions. 1 V.S.A. § 317(a). School districts are also included, as are regional planning commissions and regional waste disposal, sewer and water authorities.

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1. Executive branch

The Public Records Act contains an exemption for records that are subject to statutory or common law privileges, such as the executive privilege.  1 V.S.A. § 317(c)(4).  The Vermont Supreme Court has recognized that some records of the Governor are protected by a qualified executive privilege.  Killington, Ltd. v. Lash, 153 Vt. 628, 637, 572 A.2d 1368, 1374 (Vt. 1990); see also Herald Ass’n v. Dean, 174 Vt. 350, 355-56, 816 A.2d 474-75 (Vt. 2002); New England Coalition for Energy Efficiency & the Env’t v. Office of the Governor, 164 Vt. 337, 339-40, 670 A.2d 815, 817 (Vt. 1995); Browning v. State, No. 272-5-14, 2014 Vt. Super. LEXIS 106, *2 (Vt. Super. Wash. County Dec. 10, 2014).  The privilege allows the Governor “maintain the privacy of documents relating to the formulation of policy,” which includes “intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising parts of the process by which governmental decisions and policies are formulated.”  Killington, 153 Vt. at 635-37, 572 A.2d at 1373-74.

Once a prima facie case has been made for the existence of the executive privilege, the burden shifts to the requester to provide reasons why the need for the information outweighs the interest in confidentiality. Killington, 153 Vt. at 639, 572 A.2d at 1375.  If the court determines that the requester has shown need, the court will conduct an in camera inspection of the documents to determine if the interest in confidentiality outweighs the need for disclosure. Id.  Although the court upheld the assertion of executive privilege in both Killington and New England Coalition, it was careful to note that the privilege is not absolute, and that not all direct communications with the Governor are privileged. See Killington, 153 Vt. at 637, 572 A.2d at 1374; New England Coalition, 164 Vt. at 345, 670 A.2d at 820.

In Dean, 174 Vt at 351, 816 A.2d at 471, several newspapers sought access to Governor Howard Dean’s daily calendar to determine how much time the Governor spent on “nongubernatorial activities, particularly time spent on matters related to his bid for the United States presidency.”
The Supreme Court found that the calendar qualified as a public record and held that certain information contained within it was “not sufficiently related to gubernatorial policymaking or deliberations to qualify for confidential treatment under the executive privilege” Id. at 357, 816 A.2d at 476.

The Supreme Court has squarely rejected any effort to expand executive privilege beyond sensitive policy-making communications with or to the Governor. Trombley v. Bellows Falls Union High Sch. Dist., 160 Vt. 101, 107 n.5, 624 A.2d 857, 861 n.5 (Vt. 1993) (noting that the executive privilege is “limited to communications with the Governor of Vermont”).  More recently, however, the Vermont Supreme Court recognized that “notwithstanding the general right of access to public records under the PRA, the more specific and exacting legislative requirements that a retiring governor’s official correspondence be placed in the state archives and that such records be made ‘accessible only in accord with’ the special terms or conditions restricting their use, must control.”  Judicial Watch, Inc. v. State, 2005 VT 108, ¶ 8, 892 A.2d 191, 195-96 (Vt. 2005) (holding that the State Archives Act evince an express legislative intent to authorize restricted access to former Governor Howard Dean’s archived records).

The Public Records Act requires all public agencies of the executive branch that receive a written request for records under the statute 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.

 

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2. Legislative bodies

There is no case law negating the statute’s apparently broad application to all branches or authority of the State.  See 1 V.S.A. § 317(a)(2) (defining public agency as “any agency, board, department, commission, committee, branch, instrumentality, or authority of the State or any agency, board, committee, department, branch, instrumentality, commission, or authority of any political subdivision of the State.”) (emphases added).  Accordingly, in the absence of an applicable exemption, the Public Records Act applies to legislative bodies.  See Vt. Const. Ch. II, § 8 (“The doors of the House in which the General Assembly of this Commonwealth shall sit, shall be open for the admission of all persons who behave decently, except only when the welfare of the State may require them to be shut.”).

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3. Courts

Although the Public Records Act says it applies to any “branch” of the state government, Vermont Supreme Court opinions suggest that court and judicial records are not subject to the act but rather to separate statutes and rules which define the duties of court clerks, e.g., 4 V.S.A. § 740, as well as the common law right of all courts to control their own procedures and records.  Compare 1 V.S.A. § 312(e) (expressly exempting the judiciary from the Open Meeting Law).

It is beyond dispute that Vermont citizens have a “constitutional and common law right of access to court records.”  State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also In re Sealed Documents, 172 Vt. 152, 161, 772 A.2d 518, 527 (Vt. 2001); State v. Schaefer, 157 Vt. 339, 347, 599 A.2d 337, 342 (Vt. 1991).  These long-standing rights apply in both civil and criminal cases and stem from the right of the public to hold accountable, and have confidence in, the judiciary.  See, e.g., Vt. Pub. Acc. Ct. Rec. Rule 1, reporter’s note (“The judiciary, like the other branches of state government, is accountable to the public. Open access to its records and proceedings is essential to maintaining public trust and confidence in the operation of the court system.”).

 

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).  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).  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).

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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).

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5. Multi-state or regional bodies

Not addressed.

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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. University of Vermont, 661 F. Supp. 1132, 1138 (D. Vt. 1987); Animal Legal Defense Fund Inc. v University 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).

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7. Others

(This section is blank.)

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

1. What kinds of records are covered?

“[A]ll papers, documents, machine readable materials, or any other written or recorded matters regardless of their physical form or characteristics, that are produced or acquired in the course of agency business” are subject to the act except for enumerated exemptions. 1 V.S.A. § 317(b). This includes all forms of records, whether on paper or in electronic form. 1 V.S.A. § 316(h).

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2. What physical form of records are covered

A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).

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

All records are available for copying if the agency has the equipment necessary to make the copies. 1 V.S.A. § 316(g). However, an agency need not provide for copying just to satisfy the act if it does not itself have the equipment necessary to do so, and persons are not allowed to remove the records from the agency for copying elsewhere. Id.

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4. Telephone call logs

A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).  Thus, to the extent telephone call logs exist, they would be subject to the Public Records Act.

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5. Electronic records

A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).

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

If an agency maintains public records in an electronic format, the requester may choose to receive the copies in either electronic format or paper format. 1 V.S.A. § 316(i).  An agency may, but is not required to, convert paper public records to electronic format. Id.  The Vermont Supreme Court has noted that nothing in the Act “prevents a public agency from contractually binding itself to provide electronic versions of documents in a specified format in return for sufficient consideration.”  Blum v. Friedman, 172 Vt. 622, 624-25, 782 A.2d 1204, 1207 (Vt. 2001).

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

There is no statutory authority for the requester to obtain a customized search of computer databases to fit particular needs.  The Vermont Supreme Court recently recognized, however, that “[a]s a practical matter, the steps required to reasonably compile requested public records” may include “centralized electronic searches of agency records in an email system, document management application, or database[s] within  specified parameters” and that such searches “may be the primary or even exclusive means of compiling responsive public records.”  Toensing v. AG of Vt., 2017 VT 99, ¶ 26, 178 A.3d 1000, 1009-10 (Vt. 2017).

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

The fact that records are maintained in electronic format in no way affects whether the records must be produced under the statute.  A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).

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d. Online dissemination

Not specified.

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6. How is email treated?

A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).  Thus, emails would fall under the statute’s definition of a “public record.”  Last year the Vermont Supreme 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.”  Toensing v. AG of Vt., 2017 VT 99, ¶ 12, 178 A.3d 1000 (Vt. 2017).

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7. How are text messages and instant messages treated?

A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).  Thus, text messages would fall under the statute’s definition of a “public record.”  Last year the Vermont Supreme Court clarified that even text messages “located in private accounts of state employees or officials” are public records if they were “produced or acquired in the course of agency business.”  Toensing v. AG of Vt., 2017 VT 99, ¶ 12, 178 A.3d 1000 (Vt. 2017).

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8. How are social media postings treated?

A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).  Thus, social media postings and messages would likely fall under the statute’s definition of a “public record” if they were “produced or acquired in the course of agency business.”  Toensing v. AG of Vt., 2017 VT 99, ¶ 12, 178 A.3d 1000 (Vt. 2017).

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9. Computer software

Computer software is not addressed in the Public Records Act, nor has it been addressed by Vermont courts.  The Public Records Act, does, however, exempt “[a]ll 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.” 1 V.S.A. § 317 (c)(30).

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D. Fee provisions or practices

1. 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.

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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:

  1. For staff time involved in physically duplicating a record, $.33 per minute after the first 30 minutes.
  2. 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.
  3. For any other staff time for which cost can be charged and collected under this section, $.45 per minute.
  4. For photocopies, $.05 per single-sided page, $.09 per double-sided page for pages up to 8.5 by 14 inches.
  5. For color photocopies, $1.00 per single-sided page.
  6. For computer-generated paper copies, $.02 per page for pages up to 8.5 by 14 inches.
  7. For computer diskettes, $.28 each for 3.5-inch diskettes.
  8. For compact discs, $.86 each for write-once CD w/case, $2.31 each for re-writable CD w/case.
  9. For audio tapes, $.81 each.
  10. For video tapes, $1.69 each.
  11. For DVDs, $2.00 each for write-once DVD w/case, $4.00 each for re-writable DVD w/case.

See https://www.sec.state.vt.us/archives-records/certifications-fees/uniform-fee-schedule.aspx

The fee schedule also applies, under § 316(e) to political subdivisions whose legislative bodies have not adopted a uniform schedule.

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3. Provisions for fee waivers

Not addressed.

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4. Requirements or prohibitions regarding advance payment

The Public Records Act provides that a public “agency may require that requests subject to staff time charges . . . be made in writing and that all charges be paid, in whole or in part, prior to delivery of the copies.”  1 V.S.A. § 316(c).  The statute also provides that “[u]pon request, the agency shall provide an estimate of the charge.”  Id.

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5. Have agencies imposed prohibitive fees to discourage requesters?

No, pursuant to 1 V.S.A. § 316(d), the Vermont Secretary of State has established a fee schedule for the cost of providing a copy of a public record.  See https://www.sec.state.vt.us/archives-records/certifications-fees/uniform-fee-schedule.aspx.  In practice, it is helpful to include a sentence in your public records request indicating that you are willing to pay costs up to a certain dollar amount and asking the agency to notify you in advance if the cost of completing your request is going to exceed the stated amount.

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6. How are fees for electronic records determined?

Pursuant to 1 V.S.A. § 316(d), the Vermont Secretary of State has established a fee schedule for the cost of providing a copy of a public record.  See https://www.sec.state.vt.us/archives-records/certifications-fees/uniform-fee-schedule.aspx.

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E. Who enforces the act?

The State appears to rely on the press and private citizens for enforcement of the Public Records Act under 1 V.S.A. § 319(a). To date, there have been no enforcement actions brought by the Vermont Attorney General’s Office.  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.

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1. Attorney General's role

To date, there have been no enforcement actions brought by the Vermont Attorney General’s Office.

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2. Availability of an ombudsman

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.

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3. Commission or agency enforcement

(This section is blank. See the point above.)

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F. Are there sanctions for noncompliance?

None provided for by statute, although the court may award reasonable attorneys’ fees and litigation costs to a substantially prevailing complainant under § 319(d). In addition, § 320 provides that an agency employee who arbitrarily or capriciously withholds public records may be subject to disciplinary action, and that, in the event of noncompliance with a court disclosure order, the employee or official responsible for the noncompliance may be held in contempt. Section 320(c) also provides that 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.”

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G. Record-holder obligations

1. Processing records 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).

Last year, the Vermont Supreme Court 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. AG 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.

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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 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).

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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).

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A. Exemptions in the open records statute

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 will provide 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 will provide that: “[f]or 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. at § 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.

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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).

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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.

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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 Coalition 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.

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D. Are segregable portions of records containing exempt material available?

The Public Records Act provides that “[a] public agency shall not withhold any record in its entirety on the basis that it contains some exempt content if the record is otherwise subject to disclosure; instead, the public agency shall redact the information it considers to be exempt and produce the record accompanied by an explanation of the basis for denial of the redacted information.”  1 V.S.A. § 318(e).  Accordingly, an agency may be required to redact non-public information from documents in order to prepare them for production even “complying with the request is difficult or time consuming.”  Herald Ass’n v. Dean, 174 Vt. 350, 359, 816 A.2d 469, 477 (Vt. 2002).

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III. Record categories - open or closed

There are no court decisions or attorney general opinions dealing with specific categories or types of records, other than as mentioned in connection with the express statutory exemptions. See 1 V.S.A. §§ 317(c)(1) through (35), Part II(A)(2), supra.

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A. Autopsy and coroners reports

Autopsies performed by or at the direction of the Chief Medical Examiner are not considered a public record 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).

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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 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/.

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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).

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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).

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E. Business records, financial data, trade secrets

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

“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” are exempt from disclosure.  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).

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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 Central Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶¶ 24-25 (Vt. 2018).

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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 Central Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶¶ 24-25 (Vt. 2018).

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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.

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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 in 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).

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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. § 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).

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K. Gun permits

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

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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).

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M. Hospital reports

Information provided by hospitals in order to obtain a license to operate are not subject to disclosure. 18 V.S.A. § 1910. Records related to hospital budget reviews is 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. at § 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. at § 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.

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N. Personnel records

Closed, except to employee, if 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).

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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).

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2. Disciplinary records

“Personal documents relating to an individual, including information in any files maintained to hire, evaluate, promote, or discipline any employee of a public agency” are exempt from disclosure.  1 V.S.A. § 317(c)(7).  However, “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.”  Id.

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3. Applications

“Personal documents relating to an individual, including information in any files maintained to hire, evaluate, promote, or discipline any employee of a public agency” are exempt from disclosure.  1 V.S.A. § 317(c)(7).  However, “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.”  Id.

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4. Personally identifying information

“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.”  1 V.S.A. § 317(c)(7).  However, “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.”  Id.

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5. Expense reports

Not addressed.  However, 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).

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6. Other

(This section is blank.)

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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;

(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.”

1 V.S.A. § 317(c)(5).

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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.

 

All records relating to internal investigations of police misconduct are confidential. Nevertheless, the State Police Advisory Commission can, at its discretion, report confidential information to the public if such a disclosure furthers the Commission’s obligation to ensure proper action is taken in each case. 20 V.S.A. §§ 1923(d)(1)(4).

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2. Police blotter

Police blotters are available under the Public Records Act.  See 1 V.S.A. § 317(5).  While not completely comprehensive, the Vermont State Police maintains a blog for significant criminal or public safety incidents and arrests.  See http://vtstatepolice.blogspot.com/.

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3. 911 tapes

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. § 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).

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4. Investigatory 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;

(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.”

1 V.S.A. § 317(c)(5).

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5. Arrest records

“[R]ecords 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.”  1 V.S.A. § 317(c)(5).

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6. Compilations of criminal histories

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/.

 

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).

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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.

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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).

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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.”  1 V.S.A. § 317(c)(5)(a)(iv).

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10. Police techniques

Records dealing with the detection and investigation of crime are exempt from disclosure, including records that “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.” 1 V.S.A. § 317(c)(5)(a)(v).

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11. Mugshots

Mug shots are accessible under the Public Records Act.  The Vermont State Police website has a link to request t a mug shot taken by the Vermont State Police: https://vsp.vermont.gov/public.  When making a mug shot request, the Vermont State Police require that you include the name, age, date of arrest, and the barracks from which the suspect was arrested.

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12. Sex offender records

Vermont maintains a public, online version of the sex offender registry. 13 V.S.A. § 5411a; see also https://vcic.vermont.gov/sor. This online database includes information on all offenders convicted of the crimes delineated in 13 V.S.A. § 5411a, unless the crime was expunged from the online database pursuant to 13 V.S.A. § 5411(e). Certain employers are authorized by law to access even more expansive information relating to the sex offender registry. 13 V.S.A. § 5402 (detailing entities legally permitted to access information).

 

Further, “the Department of Corrections, and any authorized local law enforcement agency shall release Registry information concerning persons required to register under State law if the requestor can articulate a concern about the behavior of a specific person regarding the requestor’s personal safety or the safety of another, or the requestor has reason to believe that a specific person may be a registered sex offender and can articulate a concern regarding the requestor’s personal safety or the safety of another. However, the identity of a victim of an offense shall not be released.” 13 V.S.A. § 5411(b)(1). If an offender’s profile is included in the online offender database, the Department of Corrections shall, upon request, release Registry information relating to that sex offender. 13 V.S.A. § 5411(c)(1); but see 13 V.S.A. § 5411(e) (noting exception for certain offenders after 10 years since the last offense).

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13. 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. § 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).

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14. Police video (i.e., “body camera footage”)

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.” See  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/.

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Q. Professional licensing records

Lists of professional or occupational licensees are available under the Public Records Act.  See
1 V.S.A. § 317(c)(10).  The Office of Professional Regulation maintains a register of all complaints against professional licensees which is a public record, however, the type of information available is prescribed by statute and is very limited if complaints do not result in disciplinary charges.  See 3 V.S.A. § 131.

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R. Public utility records

Public Utility Commission records related to self-managed energy efficiency programs are public records, unless a participant in the self-managed program requests confidentiality and the data disclosed by the requesting participant would qualify for exemption from disclosure under 1 V.S.A. § 317. 30 V.S.A. § 209(j)(4)(K). “If such confidentiality is requested, the Commission shall disclose the data only in accordance with a protective agreement approved by the Commission and signed by the recipient of the data, unless a court orders otherwise.” 30 V.S.A. § 209(j)(4)(J).

 

The Vermont General Assembly created the Telecommunications and Connectivity Advisory Board for the purpose of making recommendations to the Commissioner of Public Service regarding his or her telecommunications responsibilities and duties. 30 V.S.A. § 202f(a). Information provided to the Telecommunications and Connectivity Advisory Board by private companies is exempt from public inspection and copying under the Public Records Act. 30 V.S.A. § 202f(k).

Annually, beginning on January 1, 2015, each commercial broadcasting station doing business with a Vermont cable company must report to the Attorney General any fees charged for program content retransmitted on the cable network under a retransmission consent agreement entered into pursuant to 47 U.S.C. § 325, for the prior calendar year. 30 V.S.A. § 518(b). Any information transmitted pursuant to 30 V.S.A. § 518(b) is exempt from public inspection and copying under the Public Records Act, unless otherwise ordered by a court. 30 V.S.A. § 518(d).

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S. Real estate appraisals, negotiations

1. Appraisals

“[I]nformation pertaining to appraisals or purchase price of real or personal property for public purposes” is exempt from disclosure prior to the formal award of the contracts.  1 V.S.A. § 317(c)(13).

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2. Negotiations

“[I]nformation pertaining to appraisals or purchase price of real or personal property for public purposes” is exempt from disclosure prior to the formal award of the contracts.  1 V.S.A. § 317(c)(13).

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3. Transactions

All deeds, contracts of sale, leases, and other documents or copies of same conveying land or an interest therein to the state, except for transportation rights-of-way, leases, and conveyances, shall be filed in the office of the secretary of state. 3 V.S.A. § 10(a).

All deeds, contracts of sale, leases, and other documents conveying land or an interest in land from the state as grantor, except for transportation rights-of-way, leases, and conveyances, shall be made out in duplicate by the authorized agent of the state. The original shall be delivered to the grantee and the duplicate copy, so marked, shall be filed in the office of the secretary of state. 3 V.S.A. § 10(b).

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4. Deeds, liens, foreclosures, title history

All deeds, contracts of sale, leases, and other documents or copies of same conveying land or an interest therein to the state, except for transportation rights-of-way, leases, and conveyances, shall be filed in the office of the secretary of state. 3 V.S.A. § 103(a).

All deeds, contracts of sale, leases, and other documents conveying land or an interest in land from the state as grantor, except for transportation rights-of-way, leases, and conveyances, shall be made out in duplicate by the authorized agent of the state. The original shall be delivered to the grantee and the duplicate copy, so marked, shall be filed in the office of the secretary of state. 3 V.S.A. § 103(b).

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.

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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.

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T. School and university records

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.

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2. Trustee records

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, as well as the Vermont Open Meeting Law.  State v. Curley-Egan, 2006 VT 95, ¶ 15, 180 Vt. 305, 311-12 (Vt. 2006); see also Sprague v. University of Vermont, 661 F. Supp. 1132, 1138 (D. Vt. 1987); Animal Legal Defense Fund Inc. v University of Vermont, 159 Vt. 133, 137-38, 616 A.2d 224 (Vt. 1992).  Indeed, 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.  Accordingly, so long as the records sought would not fall within the student records exemption contained in 1 V.S.A. § 317(c)(11), records from the UVM Board of Trustees are available under the Public Records Act.  In fact, the Board of Trustees provides its meeting schedules and materials on its website: http://www.uvm.edu/trustees/?Page=board_mtgs/meetings/all_mtgs.html.

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3. Student 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.

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4. Other

(This section is blank.)

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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/.

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V. Tax records

“[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).

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W. Vital Statistics

Records of Vermont births, deaths, marriages, civil unions, and divorces dating from 2012 and earlier, with a few exceptions including foreign-born births, are available from the Vermont State Archives and Records Administration. At this time, pursuant to 18 V.S.A. § 5002, there are no restrictions on public access to Vermont vital records.

 

New requirements for the safety and security of birth and death certificates go into effect on July 1, 2019. As of that date, only family members, legal guardians, certain court-appointed parties or their legal representatives can apply for a certified copy of a birth or death certificate. See 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. Nothing will change when it comes to ordering copies of marriage, civil union, divorce or dissolution certificates. 18 V.S.A. § 5002 (effective July 1, 2019).

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1. Birth certificates

Records of Vermont births, deaths, marriages, civil unions, and divorces dating from 2012 and earlier, with a few exceptions including foreign-born births, are available from the Vermont State Archives and Records Administration. At this time, pursuant to 18 V.S.A. § 5002, there are no restrictions on public access to Vermont vital records.

 

New requirements for the safety and security of birth and death certificates go into effect on July 1, 2019. As of that date, only family members, legal guardians, certain court-appointed parties or their legal representatives can apply for a certified copy of a birth or death certificate. See 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. Nothing will change when it comes to ordering copies of marriage, civil union, divorce or dissolution certificates. 18 V.S.A. § 5002 (effective July 1, 2019).

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2. Marriage and divorce

Records of Vermont births, deaths, marriages, civil unions, and divorces dating from 2012 and earlier, with a few exceptions including foreign-born births, are available from the Vermont State Archives and Records Administration. At this time, pursuant to 18 V.S.A. § 5002, there are no restrictions on public access to Vermont vital records.

New requirements for the safety and security of birth and death certificates go into effect on July 1, 2019. As of that date, only family members, legal guardians, certain court-appointed parties or their legal representatives can apply for a certified copy of a birth or death certificate. For death certificates, a funeral home or crematorium may apply for a certified copy. Nothing will change when it comes to ordering copies of marriage, civil union, divorce or dissolution certificates. 18 V.S.A. § 5002 (effective July 1, 2019).

If a person filing a marriage license is a participant in the confidential address program described in 15 V.S.A. chapter 21, subchapter 3, that person’s address can be kept confidential. 18 V.S.A. § 5132.

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3. Death certificates

Records of Vermont births, deaths, marriages, civil unions, and divorces dating from 2012 and earlier, with a few exceptions including foreign-born births, are available from the Vermont State Archives and Records Administration. At this time, pursuant to 18 V.S.A. § 5002, there are no restrictions on public access to Vermont vital records.

 

New requirements for the safety and security of birth and death certificates go into effect on July 1, 2019. As of that date, only family members, legal guardians, certain court-appointed parties or their legal representatives can apply for a certified copy of a birth or death certificate. See 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. Nothing will change when it comes to ordering copies of marriage, civil union, divorce or dissolution certificates. 18 V.S.A. § 5002 (effective July 1, 2019).

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4. Infectious disease and health epidemics

Healthcare providers are required to report diagnosis 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 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).

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IV. Procedure for obtaining records

A. How to start

1. Who receives a request?

The public records law in Vermont is procedurally very simple. The person seeking a record or document has only to make a “request” for it to “the custodian of a public record,” who “shall promptly produce the record for inspection.” 1 V.S.A. § 318 (a). Every office and agency must comply with its own requests; there are no centralized handling procedures.

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2. Does the law cover oral requests?

There is no requirement that the request be in writing, unless the request is subject to staff time charges. 1 V.S.A. § 316(c). As a practical matter, of course, a written request (perhaps as a follow-up where an initial oral request has not been satisfied) will assist later proceedings to compel disclosure. The statute seems to presume that the requester will have started his or her search with the correct agency or records custodian; there is no statutory requirement or procedure for informing the requester that she or he simply has the wrong office or agency. In Vermont the practice in most instances is that public employees do not read the statute so literally, and will ordinarily be helpful to some extent about the reason(s) why a request is not being honored.

There also is no statutory requirement that administrative appeals be in writing, but effectively there is no other way to utilize the process. However, the initial custodian’s response — either that a record is exempt, or that it “does not exist under the name given to [him] . . . or by any other name known to the custodian,” see 1 V.S.A. § 318(b)(2), (4) — must be in writing if it is anything other than production of the requested documents. An outright denial must also set forth the name(s) and title(s) of each person involved in the denial. 1 V.S.A. § 318(b)(2)(C).

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3. Contents of a written request

There is no statutory requirement that the request be stated with any degree of particularity, although obviously the more precise the description the more likely the requester is to receive an intelligent response. The act does require that the custodian be something more than just a passive conduit, as it requires her or him to certify that the requested records, if non-existent, also do not exist under “any other name known to the custodian.” Thus, for example, if the records are generally described but the wrong label used, that is not grounds for a disclosure refusal. 1 V.S.A. § 318(b)(4).

The Public Records Act provides that “[u]pon request, the agency shall provide an estimate of the charge” for complying with the request.  1 V.S.A. § 316(c).  As a practical matter, it is good practice to include a request for an estimate of the cost in your public records request.

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B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

Waiting periods under the statute are not lengthy. The custodian ordinarily has three business days to search and respond if the request cannot be filled on the spot. 1 V.S.A. § 318(a)(1). However, any time limit (either the initial three-day response period, or the five-day appeal response period under 1 V.S.A. § 318(c)(1)) may be extended up to ten working days by written certification that one (or more) of three “unusual circumstances” exist: (1) need to search or collect records from field offices; (2) need to search or collect voluminous records; or (3) need to consult with another agency. See 12 V.S.A. § 318(b)(5).

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2. Informal telephone inquiry as to status

Not addressed in statute.  As a practical matter, many agencies will communicate with the requester via e-mail.

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3. Is delay recognized as a denial for appeal purposes?

Failure to meet the statutory response deadline(s) is deemed a denial for subsequent appeal purposes. 1 V.S.A. § 318(a)(2).

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4. Any other recourse to encourage a response

1 V.S.A. § 319 provides for enforcement proceedings in the Superior Court to enjoin the public agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.  The statute also provides for attorneys’ fees and other litigation costs incurred by the person seeking the public records if he or she substantially prevails.  Id.

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C. Administrative appeal

Although the act does not explicitly require an administrative appeal to the agency head before commencing a court challenge, the Vermont Supreme Court has held that the structure of the act imposes such a requirement. Bloch v. Angney, 149 Vt. 29, 31 538 A.2d 174 (Vt. 1987).

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1. Time limit

There is no stated time limit for appealing an “adverse determination” by a custodian to the agency head. On appeal to the head of the agency, he or she has five business days to issue a decision. 1 V.S.A. § 318(c)(1).  The five-day appeal response period may be extended up to ten working days by written certification that one (or more) of three “unusual circumstances” exist: (1) need to search or collect records from field offices; (2) need to search or collect voluminous records; or (3) need to consult with another agency. See 12 V.S.A. § 318(b)(5).

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2. To whom is an appeal directed?

Administrative appeals are to the agency head.  See 1 V.S.A. § 318(c). There are no other methods for an administrative appeal.

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3. Fee issues

Although attorneys’ fees are provided for if a requesting party substantially prevails in a court action, there is no statutory provision for fees in the administrative appeal.

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4. Contents of appeal letter

There are no statutory requirements for the appeal to the agency head; it is not even required that it be in writing, although in practice it should be to be of any real use. The appeal need not explain why the denial is erroneous, but it probably would be helpful. At the very least the appeal should attach or refer to the written denial of the custodian and state that it is being appealed.

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5. Waiting for a response

If the head of the agency fails to issue a decision on the appeal within five business days, it is deemed a denial.  1 V.S.A. § 318(a)(2).

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6. Subsequent remedies

If the head of the agency denies the administrative appeal or fails to respond within five business days, the requestor may file a civil action in Vermont superior court.  1 V.S.A. § 319(a).

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D. Court action

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.

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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).

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3. Pro se

Permitted.

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4. Issues the court will address

a. Denial

The court considers all issues framed by the denial, and makes its own determination as to the scope or applicability of the exemption(s) relied on.  See, e.g. Herald Ass’n v. Dean, 174 Vt. 350, 355, 816 A.2d 469, 474 (Vt. 2002) (analyzing whether documents sought were public records, whether claimed exemptions applied, and whether redactions would be appropriate).

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b. Fees for records

At least one Vermont superior court judge has analyzed the Public Records Act’s fee recovery provisions and held that an agency is entitled to seek fees only “when there is a request for a copy, but not when there is a request to inspect, even though the costs incurred by the agency may be largely the same.”  Vt. State Emples. Ass’n v. Vt. Agency of Natural Res., No. 517-7-10, 2011 Vt. Super. LEXIS 2, *5-6 (Vt. Super. Wash. County Jan. 6, 2011) (noting bills for $500 and $800 were not “unreasonable in amount for the work involved” but “they are not minor either and for many Public Records requestors a charge of $500 or $800 would deter inquiry”).

Although it declined to address the claims “concerning the proper allocation of staff costs for the creation of a document index under the PRA,” the Vermont Supreme Court recognizing that the superior court had denied the State’s request for an order “requiring plaintiff to pay the estimated $ 18,900 in staff costs that would be incurred in creating a guide to the sealed documents, and the estimated $ 168,750 in costs for summarizing  the contents of the documents.”  Judicial Watch, Inc. v. State, 2005 VT 108, ¶¶ 6, 19, 892 A.2d 191, 195, 200 (Vt. 2005).

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c. Delays

The Vermont Supreme Court has held that “[b]ecause the statute does not provide a negative consequence for an agency’s failure to comply with the time requirement, nor does it specify a remedy such as a ‘deemed approval’ or ‘waiver of exemptions,’ . . . the time requirement of § 318 is intended to be directory rather than mandatory.”  Shlansky v. City of Burlington, 2010 VT 90, ¶ 17, 13 A.3d 1075, 1082-83 (Vt. 2010) (noting that instead of providing a deemed approval or waiver, “the Public Records Act explains that if a request is not timely fulfilled, it is deemed denied).  Accordingly, an agency’s delay in responding to a public records request is not addressed by the court, beyond pointing out that such a delay constitutes a denial.

 

In the same case, the Vermont Supreme Court held that the “Public Records Act is not intended as a device to delay ongoing litigation or to enlarge the scope of discovery beyond that already provided under the court rules.”  Shlansky, 2010 VT at ¶ 19, 13 A.3d at 1083 (finding there was no basis to continue plaintiff’s traffic court case based on his public records suit); see also Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 22, 865 A.2d 350, 358 (Vt. 2004).

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d. Patterns for future access (declaratory judgment)

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.

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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.

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6. Time limit for filing suit

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

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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).

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8. 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).

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9. Litigation expenses

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).

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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).

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10. 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.

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11. 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.” § 320(b).

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12. Settlement, pros and cons

Not specified.

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E. Appealing initial court decisions

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.

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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.”

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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.

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F. Addressing government suits against disclosure

No case law on point.

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Open Meetings

I. Statute - basic application

A. Who may attend?

The Vermont Open Meeting Law, 1 V.S.A. §§ 310-314, is silent as to its specific beneficiaries. Because the act is premised on Art. 6 of the Vermont Constitution, however, it applies to all “the people” of the state, including corporations. See Valley Realty & Development Inc. v. Town of Hartford, 165 Vt. 463, 685 A.2d 292 (1996); Central Vermont Public Service Corp. v. Town of Springfield, 135 Vt. 436, 379 A.2d 677 (1977). The act 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).

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B. What governments are subject to the law?

The act 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.

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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).

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2. County

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).

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3. Local or municipal

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).

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C. What bodies are covered by the law?

1. Executive branch agencies

The act covers “public bodies,” 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).

In one early judicial interpretation of the statute, the Vermont Supreme Court held that the State Emergency Board chaired by the governor was not an official agency and that the governor could informally convene it by telephone conference call. State v. Vermont Emergency Bd., 136 Vt. 506, 394 A.2d 1360 (1978). The legislature quickly acted in the next session specifically to include the State Emergency Board in the statute. Although the statute no longer references the State Emergency Board, the general legislative intent is clear to cover all workings of state government and any meetings of any “public body” where official action is considered or taken. See 1 V.S.A. § 312(a) (“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].”).

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a. What officials are covered?

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

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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. at § 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).

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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).

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2. Legislative bodies

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

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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.

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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. University of Vermont, 661 F. Supp. 1132, 1138 (D. Vt. 1987); Animal Legal Defense Fund Inc. v University of Vermont, 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 act, the Vermont courts have not addressed whether nongovernmental bodies receiving public funds or benefits are subject to the Open Meeting Law.

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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. University of Vermont, 661 F. Supp. 1132, 1138 (D. Vt. 1987); Animal Legal Defense Fund Inc. v University of Vermont, 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).

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6. Multi-state or regional bodies

Not addressed.

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7. Advisory boards and commissions, quasi-governmental entities

The Open Meeting Law contains a carve-out “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).

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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).

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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).

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D. What constitutes a meeting subject to the law

1. Number that must be present

a. Must a minimum number be present to constitute a "meeting"?

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).  A quorum of the members of a public body may, however, participate in the meeting via electronic means.  1 V.S.A. § 312(a)(2)(D).  If, however, a quorum or more of the members of a public body attend a meeting without being physically present at a designated meeting location, “[a]t least one member of the public body, or at least one staff or designee of the public body, shall be physically present at each designated meeting location” identified on the agenda.  Id.

 

The statute also provides that a gathering of a quorum of a public body does not constitute a “meeting” when they “attend[] social gatherings, conventions, conferences, training programs, press conferences, media events, or otherwise gathers, provided that the public body does not discuss specific business of the public body that, at the time of the exchange, the participating members expect to be business of the public body at a later time” or attend “a duly warned meeting of another public body, provided that the attending public body does not take action on its business.”  Id. at §§ 310(3)(C)-(D).

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b. What effect does absence of a quorum have?

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).  Accordingly, in the absence of a quorum, the gathering would not constitute a “meeting” and the Open Meeting Law would not apply.  See Burch-Clay v. Taylor, 2015 VT 110, ¶ 20, 130 A.3d 180, 187 (Vt. 2015) (finding no violation of Open Meeting Law in the absence of a “meeting”); Negotiations Comm. of Caledonia Central Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶ 33, 184 A.3d 236, 249 (Vt. 2018) (finding that collective bargaining negotiations did not constitute “meetings” and thus “fall outside the scope of the Open Meeting Law”).

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2. Nature of business subject to the law

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 Central Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶ 17, 184 A.3d 236, 243 (Vt. 2018).

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b. Deliberation toward decisions

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).   Deliberations are defined as “weighing, examining, and discussing the reasons for and against an act or decision, but expressly excludes the taking of evidence and the arguments of parties.”  1 V.S.A. § 310(2).

Quasi-judicial proceedings are defined as “contested case[s] under the Vermont Administrative Procedure Act” or “case[s] in which the legal rights of one or more persons who are granted party status are adjudicated, which is conducted in such a way that all parties have opportunity to present evidence and to cross-examine witnesses presented by other parties, which results in a written decision, and the result of which is appealable by a party to a higher authority.”  Id. at § 310(6).

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3. Electronic meetings

a. Conference calls and video/Internet conferencing

“[O]ne or more of the members of a public body may attend a regular, special, or emergency meeting by electronic or other means without being physically present at a designated meeting location.”  1 V.S.A. § 312(a)(2)(A).  In fact, a quorum of the members of a public body may, participate in the meeting via electronic means.  1 V.S.A. § 312(a)(2)(D).

“If one or more members attend a meeting by electronic or other means, such members may fully participate in discussing the business of the public body and voting to take an action, but any vote of the public body that is not unanimous shall be taken by roll call.”  Id. § 312(a)(2)(B).  Moreover, “[e]ach member who attends a meeting without being physically present at a designated meeting location shall: (i) identify himself or herself when the meeting is convened; and (ii) be able to hear the conduct of the meeting and be heard throughout the meeting.”  Id. at § 312(a)(2)(C).  If, however, a quorum or more of the members of a public body attend a meeting without being physically present at a designated meeting location, “[a]t least one member of the public body, or at least one staff or designee of the public body, shall be physically present at each designated meeting location” identified on the agenda.  Id.

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b. E-mail

In 2014, the Vermont legislature amended the Open Meeting Law to exclude from the definition of meeting “any communication, including in person or through e-mail, telephone, or teleconferencing, between members of a public body for the purpose of scheduling a meeting, organizing an agenda, or distributing materials to discuss at a meeting, provided that: (i) no other business of the public body is discussed or conducted; and (ii) such a communication that results in written or recorded information shall be available for inspection and copying under the Public Records Act.”  1 V.S.A. § 310(3)(B).  The Vermont Supreme Court recently held that “[i]t is clear in reading the earlier and amended legislative enactments together that the Legislature did not intend for the term ‘meeting’ to encompass the distribution by email of information for discussion at meetings.”  Burch-Clay v. Taylor, 2015 VT 110, ¶ 19, 130 A.3d 180, 187 (Vt. 2015).

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c. Text messages

The Open Meeting Law excludes from the definition of meeting “any communication, including in person or through e-mail, telephone, or teleconferencing, between members of a public body for the purpose of scheduling a meeting, organizing an agenda, or distributing materials to discuss at a meeting, provided that: (i) no other business of the public body is discussed or conducted; and (ii) such a communication that results in written or recorded information shall be available for inspection and copying under the Public Records Act.”  1 V.S.A. § 310(3)(B).

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d. Instant messaging

The Open Meeting Law excludes from the definition of meeting “any communication, including in person or through e-mail, telephone, or teleconferencing, between members of a public body for the purpose of scheduling a meeting, organizing an agenda, or distributing materials to discuss at a meeting, provided that: (i) no other business of the public body is discussed or conducted; and (ii) such a communication that results in written or recorded information shall be available for inspection and copying under the Public Records Act.”  1 V.S.A. § 310(3)(B).

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e. Social media and online discussion boards

The Open Meeting Law excludes from the definition of meeting “any communication, including in person or through e-mail, telephone, or teleconferencing, between members of a public body for the purpose of scheduling a meeting, organizing an agenda, or distributing materials to discuss at a meeting, provided that: (i) no other business of the public body is discussed or conducted; and (ii) such a communication that results in written or recorded information shall be available for inspection and copying under the Public Records Act.”  1 V.S.A. § 310(3)(B).

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E. Categories of meetings subject to the law

1. Regular meetings

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).

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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 act. 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. at § 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. at § 312(d)(1).  Moreover, “[a] meeting agenda shall be made available to a person prior to the meeting upon specific request.”  Id. at § 312(d)(2).

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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. § 312(b)(2).

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2. Special or emergency meetings

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).

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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. at 1 V.S.A. § 312(d)(1).  Moreover, “[a] meeting agenda shall be made available to a person prior to the meeting upon specific request.”  Id.

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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.”)

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3. Closed meetings or executive sessions

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).

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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.

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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.

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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.

Executive sessions may include only the members themselves, the public body’s staff, clerical assistants and legal counsel and any person who is subject to the discussion or whose information is needed. 1 V.S.A. § 313(b).

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e. Requirement to state statutory authority for closing meetings before closure

Not addressed.

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f. Tape recording requirements

Not addressed.

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F. Recording/broadcast of meetings

The recording or broadcasting of open meetings is not specifically addressed by the law or any court decision, except for meetings intended as a “forum for public comment on a proposed rule,” which must be recorded “electronically.” 1 V.S.A. § 312(a).

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1. Sound recordings allowed

“A public body shall electronically record all public hearings held to provide a forum for public comment on a proposed rule, pursuant to 3 V.S.A. § 840. The public shall have access to copies of such electronic recordings” as public records.  1 V.S.A. § 312(a)(1).

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2. Photographic recordings allowed

Not addressed.

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G. Access to meeting materials, reports and agendas

At least 48 hours prior to a regular meeting, and at least 24 hours prior to a special meeting, a meeting agenda must be posted to a website that the public body maintains or designates, if one exists.  1 V.S.A. § 312(d)(1).  In addition, a municipal public body must post the agenda in or near the municipal office and in at least two other designated public places in the municipality. Id. A meeting agenda must be made available to a person prior to the meeting upon specific request.  Id.  Any addition to or deletion from the agenda is required to be made as the first act of business at the meeting, but any other adjustment to the agenda may be made at any time during the meeting. Id.  Agendas should allow interested members of the public to be reasonably informed of what will be discussed at the meeting.

 

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).

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H. Are there sanctions for noncompliance?

The knowing and intentional violation of the open meeting law or participation in the wrongful exclusion of any person from any public meeting is a misdemeanor and carries a fine of not more than $500. 1 V.S.A. § 314(a). In addition, the court may grant injunctive or declaratory relief to an aggrieved plaintiff. Id. § 314(c). In Berlickij v. Town of Caselton, 327 F. Supp. 2d 371, 383 (D. Vt. 2004), despite finding violations of the open meeting law, the court declined to order injunctive relief because the plaintiff was no longer employed by the town and would suffer no unique damages from further violation, there was no evidence of continuing violation, and the court presumed that the town would comply with the law even in the absence of a court order.

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A. Exemptions in the open meetings statute

1. Character of exemptions

The Vermont open meeting law does not apply to “the Judicial Branch of the Government of Vermont or of any part of the same or to the Public Utility Commission.” 1 V.S.A. § 312(e). Similarly, the law does not “extend to the deliberations of any public body in connection with a quasi-judicial proceeding.” Id.  Finally, the law shall not “be construed to require the making public of any proceedings, records, or acts which are specifically made confidential by the laws of the United States of America or of this State.” Id.

The Act further provides that it shall not be “construed to prohibit the Parole Board from meeting at correctional facilities, with attendance at the meeting subject to rules regarding access and security established by the superintendent of the facility.” 1 V.S.A. § 312(i).

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2. Description of each exemption

The Vermont open meeting law does not apply to “the Judicial Branch of the Government of Vermont or of any part of the same or to the Public Utility Commission.” 1 V.S.A. § 312(e). Similarly, the law does not “extend to the deliberations of any public body in connection with a quasi-judicial proceeding.” Id.  Finally, the law shall not “be construed to require the making public of any proceedings, records, or acts which are specifically made confidential by the laws of the United States of America or of this State.” Id.

The Act further provides that it shall not be “construed to prohibit the Parole Board from meeting at correctional facilities, with attendance at the meeting subject to rules regarding access and security established by the superintendent of the facility.” 1 V.S.A. § 312(i).

The only other exemptions are the topics that are authorized to be addressed in executive session.  1 V.S.A. § 313(a).

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B. Any other statutory requirements for closed or open meetings

The only statutory requirements for invoking an executive session (closed meeting) are listed in 1 V.S.A. § 313.

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C. Court mandated opening, closing

None, except that, in an appropriate case, a court may issue an injunction or grant declaratory relief stating that a meeting shall be open. See 1 V.S.A. § 314(c).

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III. Meeting categories - open or closed

Again, there is nothing more in the Vermont open meeting statute than what is discussed above. If there is no specific authorization for an executive session, or there is no express statutory exemption from the law, any meeting of any “public body” must be open no matter what the particular topic.

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A. Adjudications by administrative bodies

Open Meeting Law does not apply to deliberations of public body in connection with quasi-judicial proceedings. 1 V.S.A. § 312(e).

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1. Deliberations closed, but not fact-finding

Yes. See 1 V.S.A. § 312(e) (exempting “deliberations of any public body in connection with any quasi-judicial proceeding” from coverage under the Open Meeting Law); id. at § 312(f) (“[a] written decision issued by a public body in connection with a quasi-judicial proceeding need not be adopted at an open meeting if the decision will be a public record”).

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2. Only certain adjudications closed, i.e. under certain statutes

No. See 1 V.S.A. § 312(e) (excluding “the deliberations of any public body in connection with a quasi-judicial proceeding” from coverage under the Open Meeting Law).

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B. Budget sessions

Open.

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C. Business and industry relations

Open.

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D. Federal programs

Generally open except for discussion of information protected from disclosure by federal law. See 1 V.S.A. § 312(e).

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E. Financial data of public bodies

Open.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Presumed closed if considering documents deemed confidential.  See 1 V.S.A. § 312(e) (“nor shall anything in this section be construed to require the making public of any proceedings, records, or acts which are specifically made confidential by the laws of the United States of America or of this State”).

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G. Gifts, trusts and honorary degrees

Open.

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H. Grand jury testimony by public employees

Closed to the extent grand jury proceeding is closed. See 1 V.S.A. § 312(e) (“nor shall anything in this section be construed to require the making public of any proceedings, records, or acts which are specifically made confidential by the laws of the United States of America or of this State”); Vt. Pub. Acc. Ct. Rec. Rule 6(b)(3) (“The public shall not have access to the following judicial branch records: . . . [r]ecords of a grand jury and any indictment of a grand jury.”).

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I. Licensing examinations

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

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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).

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K. Negotiations and collective bargaining of public employees

1. Any sessions regarding collective bargaining

Open unless 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.”).

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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 Central 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).

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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).

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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).

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N. Personnel matters

1. Interviews for public employment

Closed, however, “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.”  1 V.S.A. § 313(a)(3).

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2. Disciplinary matters, performance or ethics of public employees

Closed. 1 V.S.A. § 313(a)(4).

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3. Dismissal, considering dismissal of public employees

Closed. 1 V.S.A. § 313(a)(4).

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O. Real estate negotiations

Closed if meeting concerns the negotiating or security of real estate purchase or lease options for a public body. 1 V.S.A. § 313(a)(2).

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P. Security, national and/or state, of buildings, personnel or other

Closed if the disclosure could jeopardize public safety.  1 V.S.A. § 313(a)(10).

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Q. Students, discussions on individual students

Closed if discussion concerns academic records, suspension or discipline of 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 request for access to student disciplinary records and proceedings).

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IV. Procedure for asserting right of access

A. When to challenge

1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

No.  Unless subject to certain exemptions, “all meetings of a public body are declared to be open to the public at all times.”  1 V.S.A. § 312(a).  There is no requirement that members of the public request permission to attend upcoming meetings.

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2. When barred from attending

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.

The most common relief awarded for violations of the Open Meeting Law, including when the public is barred from attending a public meeting, is to invalidate the decision and order that the public body hold a new meeting that complies with the requirements of the statute.  See, e.g., Moorcroft v. Town of Brookfield, No. 147-7-10, 2011 Vt. Super. LEXIS 81, *8 (Vt. Super. Orange County Nov. 8, 2011); Kevan v. Town of Randolph Selectboard, No. 137-7-05 2006 Vt. Super. LEXIS 7, *12 (Vt. Super. Orange County July 31, 2006).  Courts will not, however, invalidate the decision if the public body cured the Open Meeting Law violation by ratifying its decision in a subsequent meeting that complied with the statute.  See Valley Realty & Dev. v. Town of Hartford, 165 Vt. 463, 469, 685 A.2d 292, 296 (Vt. 1996).

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3. To set aside decision

The most common relief awarded for violations of the Open Meeting Law is to invalidate the decision and order that the public body hold a new meeting that complies with the requirements of the statute.  See, e.g., Moorcroft v. Town of Brookfield, No. 147-7-10, 2011 Vt. Super. LEXIS 81, *8 (Vt. Super. Orange County Nov. 8, 2011); Kevan v. Town of Randolph Selectboard, No. 137-7-05 2006 Vt. Super. LEXIS 7, *12 (Vt. Super. Orange County July 31, 2006).  Courts will not, however, invalidate the decision if the public body cured the Open Meeting Law violation by ratifying its decision in a subsequent meeting that complied with the statute.  See Valley Realty & Dev. v. Town of Hartford, 165 Vt. 463, 469, 685 A.2d 292, 296 (Vt. 1996).

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4. For ruling on future meetings

Although the statute appears to allow for it through a suit for declaratory judgment, there are no reported cases of a court ordering that a meeting be opened prior to the meeting having already been held.  See 1 V.S.A. § 314(c).  The most common relief ordered for a violation of the Open Meeting Law is to invalidate the decision and order that the public body hold a new meeting that complies with the requirements of the statute.  See, e.g., Moorcroft v. Town of Brookfield, No. 147-7-10, 2011 Vt. Super. LEXIS 81, *8 (Vt. Super. Orange County Nov. 8, 2011); Kevan v. Town of Randolph Selectboard, No. 137-7-05 2006 Vt. Super. LEXIS 7, *12 (Vt. Super. Orange County July 31, 2006).

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5. Other

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).

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B. How to start

1. Where to ask for ruling

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).

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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.

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1. Applicable time limits

2. Contents of request

3. How long should you wait for a response?

c. Court

“[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).

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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).

An aggrieved party must bring an action in court “no later than one year after the meeting at which the alleged violation occurred or to which the alleged violation relates.”  1 V.S.A. § 314(c).

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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).

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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).

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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.

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C. Court review of administrative decision

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.

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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).

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3. Pro se possibility, advisability

Permitted.

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4. What issues will the court address?

a. Open the meeting

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.  There are no reported cases of a court ordering that a meeting be opened prior to the meeting having already been held.  The most common relief ordered for a violation of the Open Meeting Law is to invalidate the decision and order that the public body hold a new meeting that complies with the requirements of the statute.  See, e.g., Moorcroft v. Town of Brookfield, No. 147-7-10, 2011 Vt. Super. LEXIS 81, *8 (Vt. Super. Orange County Nov. 8, 2011); Kevan v. Town of Randolph Selectboard, No. 137-7-05 2006 Vt. Super. LEXIS 7, *12 (Vt. Super. Orange County July 31, 2006).

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b. Invalidate the decision

The most common relief received for violations of the Open Meeting Law is to invalidate the decision and order that the public body hold a new meeting that complies with the requirements of the statute.  See, e.g., Moorcroft v. Town of Brookfield, No. 147-7-10, 2011 Vt. Super. LEXIS 81, *8 (Vt. Super. Orange County Nov. 8, 2011); Kevan v. Town of Randolph Selectboard, No. 137-7-05 2006 Vt. Super. LEXIS 7, *12 (Vt. Super. Orange County July 31, 2006).  Courts will not, however, invalidate the decision if the public body cured the Open Meeting Law violation by ratifying its decision in a subsequent meeting that complied with the statute.  See Valley Realty & Dev. v. Town of Hartford, 165 Vt. 463, 469, 685 A.2d 292, 296 (Vt. 1996).

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c. Order future meetings open

Although the statute, appears to allow for a party to seek that future meetings be held through a suit for declaratory judgment, there are no reported cases of a court ordering that future meetings be held open.  See 1 V.S.A. § 314(c).  The most common relief ordered for a violation of the Open Meeting Law is to invalidate the decision and order that the public body hold a new meeting that complies with the requirements of the statute.  See, e.g., Moorcroft v. Town of Brookfield, No. 147-7-10, 2011 Vt. Super. LEXIS 81, *8 (Vt. Super. Orange County Nov. 8, 2011); Kevan v. Town of Randolph Selectboard, No. 137-7-05 2006 Vt. Super. LEXIS 7, *12 (Vt. Super. Orange County July 31, 2006).

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5. Pleading format

There is no prescribed format for pleadings — a simple complaint will do.

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6. Time limit for filing suit

An aggrieved party must bring an action “no later than one year after the meeting at which the alleged violation occurred or to which the alleged violation relates.”  1 V.S.A. § 314(c).

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7. What court

“[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).

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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).

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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 the documents are public

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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).

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11. Other penalties

A person who is a member of a public body who knowingly and intentionally violates the open meeting law may be convicted of a misdemeanor.  1 V.S.A. § 314(a).

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D. Appealing initial court decisions

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.

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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.”

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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.

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V. Asserting a right to comment

A. Is there a right to participate in public meetings?

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).  The Vermont Supreme Court has recognized that “[n]ot only the ‘right-to-know’ is protected by the statute, but also the right to be present, to be heard, and to participate.”  State v. Vermont Emergency Bd., 136 Vt. 506, 508, 394 A.2d 1360, 1361 (Vt. 1978).

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B. Must a commenter give notice of intentions to comment?

Not addressed.

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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.

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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.

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E. Are there sanctions for unapproved comment?

Not addressed.

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Appendix