Editor’s note: This op-ed is by Doug Clifton, the retired editor of the Cleveland Plain Dealer and former executive editor of the Miami Herald. He is a member of the Vermont Journalism Trust board, which is the publisher of VTDigger.org, and treasurer of the board of the New England First Amendment Center.
Vermont’s public records law gives judges the power to award attorney’s fees to anyone who successfully challenges a public records denial in court. Most states do the same. But Vermont judges rarely exercise that power, leaving the victorious, but poorer, citizen to fend for him or her self.
In the salad days of the news business most public records challenges were litigated by newspaper companies, and most judges saw attorney’s fees as a cost of doing business. These days newspapers are cash strapped and as a result file fewer costly court challenges.
Under the law as it stands today, the only just outcome of a successful public records case is the award of attorney’s fees. But the real remedy is to remove the burden from the taxpayer altogether.
That’s why a case pending in Vermont Superior Court is more important today than it might have been just a few years ago. So is a substantial modification of the law.
Back in October State Auditor Tom Salmon was stopped by a state trooper who wrote him a citation for drunk driving. The arrest was documented by a video camera mounted on the trooper’s car, standard operating procedure.
Like all such videos, it was made available for purchase (at a cost of $45) on the Department of Public Safety’s website. A short time before Republican Salmon’s arrest, Democratic gubernatorial candidate Peter Shumlin had his own brush with the state police. He was caught speeding. His video arrest was also posted on the DPS website.
There being great interest in the governor’s campaign, a local TV station requested the Shumlin video. It was released without hesitation.
Enter attorney John Franco, a friend and supporter of Doug Hoffer, Salmon’s opponent. Franco coughed up his $45 and requested a copy of the Salmon video. That’s when Public Safety Director Tom Tremblay, a Republican appointee, decided that the video wasn’t a public record subject to the open records law.
Franco sued, ultimately won and made a request for attorney’s fees in accordance with the law. The matter sits before Superior Court Judge Geoffrey Crawford. The only issue he should be weighing is how much Tremblay must pay.
One of the great ironies of public record laws is that the taxpayer bears all of the burden. The law says he or she can see most records produced by government. But if government functionaries deny that access, the citizen must pay the costs of a challenge.
Who pays the government’s legal fees in fending off that challenge? The taxpayer. In fact, the taxpayer foots the bill on both sides of the dispute, and if he or she wins nine times out of 10 the court refuses to assess fees, the taxpayer’s only opportunity to be made whole. And in those rare cases that fees are awarded, where does that money come from? From – of course – the taxpayer.
Under the law as it stands today, the only just outcome of a successful public records case is the award of attorney’s fees. But the real remedy is to remove the burden from the taxpayer altogether.
What would have gotten the attention of Tremblay when he decided to withhold this public record? A reduction in pay if he lost? A smaller pension? The loss of vacation and sick pay? What if a public official had to personally pay the price of a defeat in a public records case?
My guess is that we would see far fewer gratuitous denials of perfectly reasonable records requests.
Transparency was a much-discussed issue during Vermont’s election season. Now is the time to take up a serious discussion of how best to remove the burden of openness from the taxpayer and place it where it belongs, on the public official who works diligently to bar the public from its right to know.
Meanwhile, the least we can do is pay John Franco what he’s owed.
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Doug,
“Transparency was a much discussed issue during Vermont’s election season.”
I’d like to make it unequivically clear at this point :
VERMONT HAS ZERO TRANSPARENCY LAWS. Until V.S.A. 317 (c) is changed, amended or removed, it’ll stay that way. That’s right, you don’t have the right to know. Misinformation abound!
So you may “Talk” about it all you want. Truth be told, thanks to V.S.A. 317 (c) there is NO FREEDOM OF INFORMATION in our state.
Oh and one other thing, the “Freedom of Information” should be FREE. It shouldn’t cost anything. If public officials, especially police or correctional staff don’t want to be so scrutinized, stay out of the public sector. Don’t make it impossible to discover the repeat abuses of police power by getting judges and lawmakers to decieve the public into thinking that its in their best interests to cover up police inproprieties.
Why do you think we created the Freedom of Information Act?
SHAME ON VERMONT. . .
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I must respectfully disagree with my learned VJT board colleague (and fellow staunch advocate of public disclosure) Doug Clifton. If I understand Doug correctly, he believes Commissioner Tremblay of the Department of Public Safety should be personally liable for the costs John Franco incurred in connection with Mr. Franco’s successful challenge to the commissioner’s decision to withhold the Salmon arrest video. The result Doug urges is inconsistent with Vermont law, as Doug implicitly concedes. It would also be bad public policy.
Section 319(d) of the Vermont Access to Public Records Act (APRA) provides that the court “may assess against the public agency reasonable attorney fees and other litigation costs reasonably incurred” when a plaintiff such as Mr. Franco wins an APRA lawsuit. Note the key words: “may” (which makes the remedy a matter of discretion with the court) and, more importantly, “public agency,” as distinct from “public official,” which means the costs cannot be assessed against Commissioner Tremblay personally.
This, of course, makes the question of costs another example of the phenomenon that Doug quite understandably decries — that of taxpayers (the intended beneficiaries of the APRA) bearing the costs and burdens of enforcing it. But consider whether any public official would ever withhold any document from public disclosure if she knew she would incur substantial personal liability if her good-faith judgment about how to apply the APRA were wrong? The APRA contains specifically enumerated exceptions to public disclosure. Let’s stipulate that there are way too many of them. But surely there is consensus that some government documents, because of their sensitivity, should not be subject to public dissemination. Many potentially non-disclosable documents fall into a grey area and it is simply unfair to subject government employees who act in good faith but, in the opinion of the judge, have guessed wrong.
But what, one might wonder, about the public official who acts in bad faith? If the media accounts of the Salmon video saga are correct, there is at least a whiff of that here — given the circumstantial evidence that in Commissioner Tremblay’s judgment arrest videos involving Democratic politicians are public documents but those involving Republicans are not. The Legislature has addressed this possibility in section 320(a) of the APRA.
Under section 320(a), in a case where the court assesses the plaintiff’s litigation costs to the agency, the judge may also issue “a written finding that the circumstances surrounding the withholding raise questions whether the agency personnel acted arbitrarily or capriciously.” If the court takes that additional step, the department of human resources is required to “initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The department, after investigation and consideration of the evidence submitted, shall submit its findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his or her representative. The administrative authority shall take the corrective action that the department recommends.”
In other words, the Legislature has determined that the penalty for bad-faith APRA decisions is adverse personnel actions. This, admittedly, will have little or no effect on a political appointee like Commissioner Tremblay, particularly in the midst of a change in administrations. But neither is this threat an inconsequential one.
As a former journalist and former government employee, I have been on both sides of the public records divide. As with any discretionary authority that a public official might discharge, we discourage public service and undermine the effectiveness and dignity of government if we expose public officials to personal liability just for doing their jobs. As to the view from the other side of the reporter’s notebook, I can say only this: Once upon a time, the costs that are of such concern to Doug (and to me as well), because they are now incurred by individual citizens vindicating the public’s right to know, used to be borne largely by newspapers and other media organizations. They were part of the cost of doing business — the journalism business.
Given that the journalism business as we once knew it is in the process of consigning itself to extinction, we need APRA reform to take account of the new reality. My suggestion is to make it easier for citizens to challenge adverse APRA determinations in court. The process should look less like full-flown civil litigation as it does now and more like the procedures used by small claims court. Indeed, we might even take the process out of the courts altogether and put it in the hands of a citizen panel.
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V.S.A. 317 (c) Needs to be changed.
There is NO TRANSPARENCY in Vermont until doing so.
There is NO Freedom of Information either because of this.
Its amazing that we’re having this conversation.
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When I was a journalist, I ran into a few situations in which I was denied access to public records, and it is indeed absurd that the government we pay for can – arbitrarily, at times – deny us access to information that allows us to hold it accountable.
However, I don’t think Mr. Clifton’s suggestion that punishing the decision-maker for withholding information would necessarily work. Instead, lawmakers should ensure that the law unambiguously delineate the types of information that cannot be released, and should *require* reimbursement of legal fees when legal disputes are decided in favor of a citizen, news agency, etc. Then, the government entity that wrongfully denies access to information should be held accountable not through personal retribution against an individual, but rather through the accountability process inherent in elections.
In other words, if an entity of the executive branch wrongfully withholds public information, this should be construed as a point against the sitting Governor; he or she is either not properly managing his or her administrators, or is running an executive branch that is attempting to avoid accountability to citizens. And if it was a gray area – a matter of interpretation – that required the courts’ intervention, then the Executive will have to make that case to voters. If it becomes a serious concern, voters will show it with their ballots.
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Even though grandma allways said “Nothing in life is free,” We should make information regarding public improprieties such as police misconduct as free as possible to the public.
No obsticals to transparency. none.
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Mr. Clifton argues for personal accountability among government employees. Mr. Kheiry and Mr. Kreis argue that such accountability places too great a burden on those employees. It is an interesting dilemma — mindful that the big picture is that the individual seeking disclosure should not be facing overwhelming obstacles when they are in the right as is current law. To that end, Mr. Clifton’s argument is ironclad.
We agree that placing the burden of a correct decision on a state employee (whether to release documents or prevent their release) could have detrimental effects (records may be released in error, and, perhaps, potential employees would be discouraged from government work), but we doubt either is a concern that can’t be overcome.
One idea is to make each department accountable: For example, departments could appoint one person who knows the laws well to be the gatekeeper of such documents. Any request goes through that person. State counsel could and should be consulted. The result would be a well-informed department gatekeeper whose interest is to avoid litigation but who knows when it is proper to defend the state’s right to deny release. If a document is wrongly denied and the plaintiff wins, the cost of litigation comes from that department — placing a cause/effect on many within the department but not on one individual. We disagree with Mr. Kreis that current statute addresses this satisfactorily as it has the administration monitoring itself… which in Trombley’s instance was exactly the problem. Perhaps, oversight of abuse should be switched to the Legislature rather than kept within the administration.
The primary focus in these comments and with Mr. Clifton’s argument is two-fold: to create a process in which there is consequence to recklessly withholding public documents for no valid reason; and to create a process whereby the plaintiff seeking disclosure does not bear an overwhelming burden. Changes in the law to suggest that judges “shall” pay the winning plaintiff, not “may” pay, would also be helpful.