Vermont Gov. Peter Shumlin signed into law Wednesday a public records bill championed by open records advocates who say the changes are long overdue for a state that has consistently received poor transparency rankings.
The legislation, H.B. 73, awards attorneys fees and costs to those who fight public records denials in court and win, and creates a committee to review the number of exemptions to the state’s public records statutes.
The bill was sponsored by Rep. Donna Sweaney, D-Windsor.
“This bill represents an important step toward more open government,” Shumlin said. “We’ve seen too many times in practice that the public records law hasn’t always lived up to its promise. . . . By requiring courts to award attorney’s fees to prevailing plaintiffs in public records cases, this law deputizes every citizen to help hold public agencies — including the state of Vermont — accountable.”
The Better Government Association ranked Vermont 49th in its 2008 “Integrity Index," which evaluates the 50 states on their laws relating to transparency, ethics and accountability in government.
Transparency was a key issue in state races in the 2010 election season, and Shumlin vowed to increase government accountability.
Mike Donoghue, executive director of the Vermont Press Association, called today “a wonderful day for Vermont citizens.”
“This will open up public records for any citizen,” he said. “Even if they have to take the case to court, they now have a very good likelihood of recovering their legal fees, whereas there have been about half a dozen cases in the last 35 years where legal fees were granted. Vermont has always rated toward the bottom in open government, public records and transparency, and hopefully this will move us further up the line.”
Dan Cotter, executive director of the New England Newspaper and Press Association, also applauded the changes to the statutes.
“We’re gratified to know that news organizations, especially small ones, need not be deterred in their quest for public records access by the prospect of imposing legal fees,” he said.
The bill also requires the creation of a legislative study committee, made up of House and Senate members, to review the records act and its exemptions. After studying the exemptions and weighing the public’s interest, the committee will submit recommendations to the legislature on whether the act and any of its exemptions "should be repealed, amended, or remain unchanged."
Open records advocates say the more than 200 exemptions relating to the state’s public records have watered down the law and hope that some may be thrown out.
“This gives real teeth to the public records law, and the examination of all the exemptions is overdue and will be a good exercise to streamline the public records process,” said Rosanna Cavanagh, executive director of the New England First Amendment Coalition Inc.
In addition, the bill clarifies that records should be redacted instead of being withheld when only some material is exempt; agencies must also provide an explanation for not disclosing redacted information.
Starting July 1, government agencies must create a catalog for records requests that includes: the date request is received, who made the request, the status of the request, and whether the request was fulfilled in part or denied. The catalog is also required to explain which exemption was used to withhold information, the estimated hours it took to complete the request, the date the request was closed, and the elapsed time between receipt and closure.
“This law makes it clear that if the State of Vermont, or any other public agency, denies a request for a public record, it’s our burden to point to the applicable exemption and show that it applies,” Shumlin said. “It’s our burden to identify the documents we are not producing. And it’s our burden to produce as much of the record as we can, consistent with our other obligations.”