The Vermont Constitution entitles citizens to hold state government accountable, and Vermont’s Public Records Act gives any person the right to access public records, regardless of motive. But when a private corporation performs traditional government work, can any person ask for documents held by that corporation?
This was the central question that occupied the Public Records Legislative Study Committee during its first meeting on Wednesday at the Statehouse.
Corporations under contract to the state are subject to the public records law, said Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union. He told the committee that people look at the statutory definition of a public agency to find a particular term, like “private contractor.” When they don’t see it, he said, they assume that private contractors are not covered by public records law. The way a court sees it, Gilbert argued, is that if contractors to the state are fulfilling government functions, they are automatically subject to public records law.
It’s not an academic question for Gilbert. He said the ACLU is involved in a lawsuit against Prison Health Services, a corporation that formerly provided health services to inmates in Vermont prisons. Gilbert said that since the corporation “is providing services that the state of Vermont would otherwise be providing,” their records are public records and any person can request their records.
The Legislature created the six-member study committee this session to vet controversies regarding public records law and its numerous exemptions. There is no definitive list of exemptions. A 2007 report to the Legislature listed 206 exemptions, but acknowledged “it is possible that additional exemptions exist in statute.” On Wednesday, Legislative Council Staff Attorney Michael O’Grady underscored the difficulty of collecting all the exemptions. He reported that his list had 239 exemptions at the beginning of the day, but he had added one more that morning.
Rep. Donna Sweaney, co-chair of the committee, said the committee’s goal is “to make government more transparent.”
The committee embarked on a preliminary run-through of the known exemptions, to note which ones they wanted to give further attention to. Many of the exemptions the committee had no problem retaining: Vermont Life’s subscriber list, for one. (One committee member expressed surprise upon learning that the state owns the glossy magazine.) Other non-controversial exemptions included information related to ongoing real estate transactions or other negotiations the state is party to, information on what materials individuals are borrowing from libraries, and the exact location of archeological sites.
After an hour, they had discussed 40 of the 240 exemptions. The committee decided to collect opinions from others between meetings on which exemptions to consider more closely. The rest of the meeting was devoted to questions of records held by private contractors.
Beth Robinson, counsel to the governor, weighed in for the Shumlin administration. She outlined some principles that the administration would like to see the committee follow in considering records held by private contractors, but she had no ready solutions. “We’re struggling with the same complexities that you all will be struggling with when you have this conversation,” Robinson said.
The underlying assumption of her testimony, however, appeared to be that subjecting corporations to public records requests would require a change in statute.
Robinson urged the committee to consider basic questions, such as what records should be readily available to the public that are currently inaccessible? She also asked them to consider cost to the state of making contractors respond to public records requests, and to spell out clear procedures for requesting the records.
Andy Maclean represented the Corrections Corporation of America, which houses about 500 Vermont convicts in out-of-state prisons. Maclean said CCA’s contract with the state obligates the corporation to provide certain records to the state. But he noted that many of CCA’s records involve criminal investigations. (Current statutes exempt records of ongoing criminal investigations from public records requests, but the ACLU has charged that police agencies are using the exemption too broadly.)
Committee members returned repeatedly to two questions about private contractors and public records. The first was whether the contracting state agency should field the requests and handle the interactions with the member of the public. The second question addressed the scope of the records subject to public purview. If, for example, CCA holds prisoners from other states in Arizona, for example, would records pertaining only to non-Vermont prisoners be considered Vermont public records? All the witnesses asked said that they wanted to see the Vermont requests limited to Vermont business.
The Committee scheduled its next meeting for Sept. 8, in the Statehouse, beginning at 9:30 a.m. and continuing all day. Committee members asked O’Grady of Legislative Council to identify which of the 240 currently identified exemptions he would recommend that the committee review. That list will be sent out to interested parties for comments.
Lynn Hegamyer (firstname.lastname@example.org) is assisting the committee with logistics and communications. She said that all of the documents the committee receives and generates will be available on a web site, but that it will be some weeks before the site is on line. Right now, she explained, her office is “buffaloed” with a backlog of public records requests.