Gov. Peter Shumlin has held two press conferences since he was inaugurated a little more than a week ago. The first was an announcement that the administration has engaged in talks with the union about cost-cutting.
In his second public appearance with reporters, the governor declared he will make it easier for news organizations – and ordinary citizens — to get information from the government.
Shumlin outlined a number of improvements in the public records law and made a commitment to set changes in motion that could shift the bureaucratic attitude toward citizens’ requests for information.
Please read Jon Margolis’ story: “Shumlin outlines sunshine plan.”
The governor’s proposal, which is based on the groundwork laid by the leaders in the Vermont House of Representatives, could crack the heavy door of government secrecy around how decisions are made about programs, budgets, contracts, personnel, arrests of citizens, treatment of state employees and so on.
That door, which began to stick over the eight years of the Douglas administration, has become harder to budge. The Vermont Press Association has pushed for significant reforms of the public right-to-know laws for more than a decade, but has been unable to make progress because of resistance from the Vermont League of Cities and Towns and the Vermont attorney general’s office, the entities that represent local and state officials in public records disputes.
Shumlin’s endorsement is vital to passage of any significant changes in the law, though the details, as presented in a Friday presser, raise questions about whether some aspects of the bill, as yet to be released, will do more harm than good.
Vermont ranked 49th in the 2008 Better Government Association-Alper Integrity Index, which rates states in five areas of law: open records, whistleblower protections, campaign finance, open meetings, and conflicts of interest.
Why has Shumlin, newly installed as governor, chosen to respond at this moment?
Perhaps because pressure has been inexorably building.
Nationally, Vermont’s transparency rankings are abysmal. The U.S. Public Interest Research Group gave Vermont an F for online budget transparency in 2010.
Vermont ranked 49th in the 2008 Better Government Association-Alper Integrity Index, which rates states in five areas of law: open records, whistleblower protections, campaign finance, open meetings, and conflicts of interest.
Here are a few of the recent events that have spurred a renewed focus on the issue:
* Recent financial improprieties that have come to light over the past few years have raised questions about government activities conducted in secret. The city of Burlington used $17 million in taxpayer dollars to keep Burlington Telecom afloat without seeking permission from city councilors. The situation has snowballed, and Mayor Bob Kiss and the city council have been criticized for continuing to keep the public out of crucial meetings. The Montpelier City Council didn’t disclose a more than $450,000 budget hole that was created when a city clerk overpaid Scott Construction in Newport. City officials in South Burlington did not release reports about a $9 million pension shortfall, due to a drop in the stock market to city councilors until more than a year passed.
Blame has also been laid at the feet of the Vermont press corps, which has significantly diminished over the last 12 years. Broadcast outlets have had significant layoffs, and the state’s two biggest dailies – The Burlington Free Press and The Rutland Herald and Barre-Montpelier Times Argus – have lost more than a third of their editorial staffs due to devastating industry declines over the last decade.
* As Shumlin gave his presser on Friday afternoon, 30 members of the broadcast and print press corps, along with representatives from the New England First Amendment Center, the Vermont chapter of the American Civil Liberties Union and Common Cause, gathered at a conference in Grafton sponsored by the Windham Foundation to discuss government accountability.
Over the course of the daylong meeting, reporters and editors recounted the difficulties they have had obtaining basic information from state agencies and local selectboards, school boards and police departments.
Why should ordinary citizens care? Editors at the Grafton Conference pointed out that journalists are used to putting up a fight for information; ordinary citizens who ask for meeting minutes or budgets are more likely to give up when a public official turns them down.
For journalists, the situation is also very serious, however: With fewer reporters in the field to press repeatedly for the release of individual documents, roadblocks and delays put up by public officials can effectively kill stories.
* On Jan. 7, Judge Geoffrey Crawford ordered the state to release records at no cost to the Vermont State Employees Association. The Douglas administration wanted to charge the union $1,300 to view budget documents and information about a new computer system designed to monitor state workers’ Internet use. Crawford ruled that the state can charge for the release of a public record if there is a request for copies; officials cannot charge members of the public to view a record.
A week before Crawford issued his decision, state Auditor Tom Salmon tried to sway the judge to “give ample consideration” to the “burden” public records requests impose on state employees. In an e-mail he sent to Crawford on Dec. 29, Salmon argued that “if there are not reasonable expenses apportioned to a requestor,” he could only imagine how “insincere” requests for information could “derail” state government.
Read the Seven Days story.
Download Salmon’s letter to Judge Crawford
Editors and reporters at the Grafton Conference argued that charging citizens for documents that are already created at taxpayers’ expense is unreasonable.
* There has been a flurry of lawsuits this year challenging public officials’ unwillingness to release public records. The Rutland Herald has sued Rutland City for personnel files related to a Vermont State Police probe into an allegation that former Rutland police officer David Schauwecker viewed child pornography on his work computer. Prison Legal News, a monthly trade publication based in Brattleboro, has sued Prison Health Services for copies of contracts with government agencies in Vermont; records related to settlements and judgments that PHS had paid as a result of lawsuits and civil claims; and documents concerning costs incurred by PHS to defend against claims or suits. The other public records case in the news recently was the suit brought by VTDigger.org against the Town of Hartford, which refused to turn over records of its arrest of a sick man in his own home. The suit has the support of the Vermont Chapter of the American Civil Liberties Union.
* Shumlin, Democratic gubernatorial primary candidate Matt Dunne, and both candidates for the secretary of state’s office, Democrat Jim Condos and Republican Jason Gibbs, made government transparency a campaign issue in the last election cycle.
* Editorial writers at newspapers have been sharpening their pencils. Aki Soga, the editorial page editor of The Burlington Free Press, wrote more than 100 editorials about open government over a three-year period. CORRECTED: This sentence originally stated he wrote the editorials over a one-year period. We regret the error.
Here’s a sampling:
The Burlington Free Press presses the new administration to support open records.
The Burlington Free Press says the Burlington Telecom mess wouldn’t have worsened if the Burlington City Council had held more meetings in the open.
The Rutland Herald praises the VSEA public records lawsuit victory.
New and improved public access?
Shumlin and the Democratic House and Senate leadership have recommended wholesale changes to the way the public records law is written and applied to state government. Secretary of State Jim Condos, a Democrat, also said he would make government transparency a top priority when he spoke to journalists at the Grafton Conference on Friday.
So how would this happy convergence work?
Instead of hiring communications officers for each state agency as his predecessor Gov. Jim Douglas did, Shumlin says he will designate “public records officers” throughout state government who will vet requests for documents.
Instead of hiring communications officers for each state agency as his predecessor Gov. Jim Douglas did, Shumlin says he will designate “public records officers” throughout state government who will vet requests for documents.
“Every legitimate request by the public for information should be met in a timely, open manner,” Shumlin said. Current regulations require state officials to respond to requests within 48 hours, though there is no mechanism for enforcing the law.
In addition, Shumlin has said he will require training in public records rules across state government in order to improve state compliance with the law. Shumlin said this week he will provide instructions to his agency secretaries “to ensure compliance by his full cabinet.”
“The single biggest complaint we’ve heard is not that the law as written doesn’t go far enough,” Shumlin said. “It’s that in some cases, state employees have not complied with the spirit or the letter of the law as written, often due to inadequate training.”
Shumlin also supports an overhaul of the public records law, and he has endorsed a draft of the bill that will be introduced in the House Government Operations Committee this week.
Vermont’s public records act contains more than 200 exemptions, or legal justifications for public officials to prevent the release of listed categories of information.
Those exemptions are used to block access to public records, such as police reports under certain circumstances, in the interest of privacy concerns. The new legislation calls for the formation of a legislative commission that would evaluate the exemptions one by one.
Current law also includes language that favors protection of government officials over citizens’ rights. It states, for example, that the government “may” pay legal costs incurred by citizens who win a public records request battle in the courts. First Amendment advocates and journalists have fought for years to change the word “may” to “shall.” In a recent court case, The Burlington Free Press won in court against the University of Vermont, but was not awarded attorney’s fees, which, at the end of the day totaled about $12,000.
In the new bill, lawmakers and the Shumlin administration continue to allow some doubt with regard to who pays. If the new bill passes as written, the person who requests records is “presumed” to be entitled to attorney’s fees if he or she wins. In addition, descriptions of the bill suggest so far that other costs, such as court filings, copies, etc., would not be covered.
No one in state government enforces the public records law. If the new bill passes, that would change. There would be a new Office of Transparency under the secretary of state’s office would have “binding” authority to arbitrate disputes between members of the public and state agencies. Those decisions could be appealed in court.
Right now, if it takes a government employee more than 30 minutes to fulfill a document request, the state can charge a person placing a request for the staff time required to copy records. Under the current law, “inspection of records,” or merely looking at a document, is, as Judge Crawford determined, free.
“We don’t know how many public records requests we receive,” Condos said. “We don’t know how many are denied.”
The new legislation would impose a new fee arrangement for public records. It would extend the amount of “free” time given to requesters to two hours. It does not, however, distinguish between “inspection” and “copying.” In other words, members of the public who ask for documents would, under the new law, be liable to pay for the staff time (beyond two hours) it takes to gather the information, regardless of whether copies are made or not. According to a press release from the governor’s office, only 2 percent of requests exceed the two-hour limit.
Secretary of State Condos told journalists in Grafton that he couldn’t support the two-hour rule, in part because of a lack of data supporting the aforementioned statistic.
“We don’t know how many public records requests we receive,” Condos said. “We don’t know how many are denied.”
Condos said changes in records management now under way will help agencies respond in a timely way to requests; currently information isn’t uniformly accessible across departments.
He suggested that fines would be an inducement for compliance, and he believes the “may” should be changed to “shall.”
“Right now in government the attitude is take me to court,” Condos said. “The incentive is deny, deny, deny. There’s no incentive for government to give out records.”
Though fines and even jail time are imposed in other states when public officials fail to comply with public records laws, such penalties have not been included in the draft legislation.
The secretary also blamed the media for a lack of public access to government information. When asked if the press watchdogs have been muzzled, Condos replied, “yes.” The question is, he said, “Are you muzzling yourself? Your resources are diminishing over time.”
He said reporters attend fewer meetings, cover smaller beats and leave before public officials have finished discussing important issues. “The lack of reporting has helped to muzzle the media to a certain point,” Condos said.
So why is the news industry on the rocks?
Martin Langeveld, former publisher of the Brattleboro Reformer and a frequent contributor to Nieman Journalism Lab at Harvard University, described how larger daily newspapers have declined over the last 20 years, and he painted a stark picture of the present situation in which news consumers will continue to migrate in overwhelming numbers to the Internet.
Advertisers, however, are not following suit, and therein lies the fundamental problem for publishers who wish to continue to use the existing business model to pay for news coverage.
While online advertising now exceeds total newspaper advertising, online media outlets only hold a 10 percent share of the pie. More advertisers are looking at Facebook and Google ads instead of supporting local news organizations.
Langeveld said 67 out of 100 households in 1990 subscribed to a daily newspaper in the United States, according to the National Newspaper Association. Today, that number is 35 out of 100; in Vermont, Langeveld said the figure is closer to 34 out of 100. Community weeklies and small dailies fare much better – about 81 percent of households subscribe to local newspapers.
Advertising is down 48 percent from the peak in 2000, and Langeveld sees no hope of a comeback. While online advertising now exceeds total newspaper advertising, online media outlets only hold a 10 percent share of the pie. More advertisers are looking at Facebook and Google ads instead of supporting local news organizations.
In addition, local newspapers in Vermont will soon see competition from Patch.com, AOL’s hyperlocal Web sites that have been launched in hundreds of communities around the country, Langeveld said.
Thirty-three percent of people online access news media via cell phones, and most Web users are gravitating toward “mobile commerce” – purchasing goods from their cell phones, according to Pew Research. Increasingly, stores will be able to reach customers directly on mobile devices, Langeveld said.
With the onset of iPads, Groupon – a national network for local advertising – and more vehicles than ever for delivering news online, such as Twitter and Facebook, Langeveld suggested that the ground continues to shift under news organizations that are trying to gain a financial foothold on the Web.
Editor’s note: The headline for this story was changed at 7:25 a.m. Monday, Jan. 17, 2011.
CORRECTION: The story originally stated that the bill, as described by Condos and Shumlin, would only address public records created by state government officials; it would not apply to municipal or regional entities. According to Alex MacLean, the secretary of civil and military affairs, the bill will in fact apply to local entities.
