The week after the Vermont Supreme Court heard arguments over whether a town’s property tax adjustment records are public information, a legislative study committee came down on the side of making the records public.
The tax issue was one of several the Public Records Legislative Study Committee considered on Thursday as it came close to concluding its first of three summer study committees. Lawmakers also considered whether the University of Vermont and state colleges will continue to enjoy broad exemptions from the public records act, clarification of health care exemptions, and broad review of what type of personal information the state shall keep confidential.
The Legislature created the study committee this session to vet controversies regarding public records law and its more than 200 exemptions. The committee’s six members are from the House and Senate Government Operations Committees.
At issue in the tax case is information about property tax adjustments for individuals with incomes under $90,000. While Vermont statute specifies that state tax returns are confidential, both the Attorney General’s office and the Department of Taxes have said that the income adjustment to propertytax bills is public information.
The Town of Manchester disagrees. Municipal officials refused to release tax adjustment information, arguing that it is easy to calculate the taxpayers’ incomes from the information.
After some discussion, the committee unanimously supported draft legislation stating that the information “shall be available for inspection and copying as a public record.”
Committee members spent the most time on a broad exemption to the public records law for the University of Vermont and state colleges for records relating to “study, research or creative efforts on medical, scientific, technical, scholarly, or artistic matters.” Animal rights advocates argued that the exemption blocked the public from reviewing records about the treatment of research animals and suggested that the treatment could be more humane if it was subject to public scrutiny.
One witness told the committee that the exemption had been carved out specifically to block scrutiny of animal research. Lance Polya, an adjunct faculty member at UVM, said that he had helped successfully argue a 1992 Vermont Supreme Court case that opened to the public the records and meetings of a UVM animal research committee. In 1996, he said, the university asked the legislature to exempt the institution from the public records law, and they did.
“To me it’s an issue of openness and accountability,” Polya said, not animal rights. “If the committee has nothing to hide, why can’t we have access to the documents?”
UVM representatives argued for leaving the exemption in place. Interim President John Bramley testified by telephone, and in his written testimony he wrote that scientists need to keep their research ideas and data private until they were ready to publish them, because premature exposure could “destroy a discovery’s patentability…and compromise legitimate expectations of confidentiality on the part of potential collaborators and research subjects.”
Domenico Grasso, UVM’s vice-president for research, implied that the public records exemption protects university employees. He said researchers at the University of California Los Angeles had been threatened after information about their animal research was released, even though the information had been redacted to disguise who was doing the research.
In the end, the committee recommended compromise language, carving out an exemption within the academic exemption, so the public would have access to more information about the treatment of research animals.
The committee’s co-chairs, Rep. Donna Sweaney, D-Windsor, and Sen. Jeanette White, D-Windham, serve as UVM trustees. They began the discussion by acknowledging their dual role. White said, “I think that we’re looking at an issue here that isn’t just relevant to UVM, and hopefully we will maintain our objectivity. We try to at all times. If anybody feels that we’re not, I’ll be happy to recuse myself.”
Vermont statute specifies that UVM trustees “shall have the entire management and control of its property and affairs.” A senate rules states, “No senator shall be permitted to vote upon any question in which he or she is directly or immediately interested,” and the House rule is virtually identical.
ACLU Director Allen Gilbert expressed surprise that the legislators had not recused themselves. He commented in an email, “Given the integrity of the two co-chairs, it is very likely they can indeed deal with UVM issues objectively. The more difficult challenge in these situations, though, is dealing with possible public perceptions that there is an inherent conflict of interest whenever someone has dual roles, and that objectivity is impossible.”
The committee shifted its attention from university research animals to prison inmates. Barry Kade, an attorney and prisoner advocate from Montgomery, described prisons as the areas of state government with the least scrutiny and most effect on the individuals involved.
Kade asked the committee to make prisoner grievances public records. The Department of Corrections, he said, maintains that grievances are exempt from disclosure. He said he supported redacting personal information to protect individuals, but he wanted access to the grievance forms.
“If I wanted to see grievances concerning medical care at Northern State, they would deny that to me. If those were given to me in redacted form, I might see that they are constantly running out of medication. I might see that serious conditions sometimes take a week before they’re seen, and then it’s just by a screening nurse who puts it off for another two weeks, even though it’s something anyone would agree would warrant immediate response.”
Kade’s input came at the beginning of the committee’s work on what staffer Michael O’Grady told them was “your first Sisyphean task,” a systematic review of the personal information exemptions scattered throughout the state’s statutes. Their goal appears to be to reduce the number of exemptions by making language more consistent; whether any practical changes in what is exempt result remains to be seen.
O’Grady recommended, and the committee adopted, a legal mechanism to put pressure on themselves and their colleagues to push that boulder to the top of the mountain and keep it there. This year, committee members will try to pass a blanket redefinition of exempt personal information, knowing that it will create conflicts with existing statutes. The redefinition will not take effect, however, for two or three years, giving them time to find and fix the conflicts—but also creating difficulties if they don’t finish the task.
The committee is scheduled to meet again Jan. 6 to review their report to the legislature, which is due Jan. 15.
Co-chair White said after the meeting that she was satisfied with the progress they had made in their first year. She also pointed to a change made in House rules, that she said would be introduced for Senate rules, which could stem the future proliferation of public records exemptions in the statutes—they would all need to be reviewed by the Government Operations Committees before becoming law.