ACLU Vermont Executive Director Allen Gilbert. VTD/Josh Larkin
A lawsuit filed by a school supervisory union district against a student parent and vocal policy critic was dismissed by Rutland superior court on Tuesday. The district sued Marcel Cyr, a parent, for placing a public records request.
The American Civil Liberties Union of Vermont hailed the dismissal as a victory for government transparency. Dan Barrett, an attorney for the ACLU, says the decision makes it clear that only a citizen can sue a public agency over a records request, not the other way around.
“The supervisory union’s idea to sue someone who makes a public records request is a major threat to open government,” said ACLU-VT executive director Allen Gilbert, in a statement. “The school’s strategy would place concerned citizens and news organizations at the potential peril of having to hire a lawyer and defend themselves every time they make a public records request.”
The suit filed by Addison Rutland Supervisory Union asked the court to decide whether a public records request by Cyr, a Benson resident and the father of a student in the district, had to be answered. On Tuesday the court said that it couldn’t make a determination because it would be contrary to statute and legislative intent.
Cyr’s request sought underlying records relevant to a no-trespass notice the union issued in March 2012, which banned him from all school property for two years.
One relevant record was a document produced by a mental health professional, which warned that Cyr could be dangerous to ARSU employees. The professional requested anonymity for fear of her own safety.
Court records say that Cyr doesn’t have a criminal record, and isn’t on Vermont’s sex offender, elder abuse, or child abuse registries.
Cyr’s original lawsuit against the supervisory union, filed in March 2012, said that his ongoing vocal criticism of education officials on policy matters led the union to spring an abrupt and unjustified trespass ban on him, without due notice or chance for a hearing.
Cyr claimed his constitutional rights to free expression and due process had been violated, alongside his rights to access public records, after the union initially failed to provide him with documents. He requested that the court cancel the union’s no-trespass order and award him damages and legal fees.
The union’s lawyer, Pietro Lynn, explained that the union first sought guidance from the attorney general’s office on whether the document with advice from the medical professional was exempt.
“The district sought advice from the attorney general’s office as to whether this was a public record that must be produced. The attorney general’s office refused to help us,” Lynn said. “Then we sought guidance from the court. The court will not provide us with guidance.”
Lynn said the district will release the document in the next few days.
Lynn said the union hadn’t sought damages against Cyr. “All we asked for was a declaration from the court. He was named as a party, because he was the person that requested the record: we thought it was important that he have a say.”
“Nothing compelled him to hire a lawyer, there was nothing at stake financially for him,” Lynn said. “We never declined to provide him with the record: what we did was seek guidance before we had to make that decision.”
Barrett, one of Cyr’s lawyers, said Cyr had hired himself and another lawyer, Ted Hobson, for the public records case, and had definitely incurred court costs, though Barrett didn’t know how much exactly.
“We were really worried, first of all, that Marcel had to defend himself against a lawsuit,” said Barrett. “More importantly and broadly, if agencies could do this, newspapers and citizens would be in trouble, would be at peril of being sued by an agency.”
“Our act is pretty clear that only a public records requester can file suit,” over a records request, said Barrett.
As for concerns for the safety of the tipster, Barrett said the document should be released. He said the court questioned whether the tipster had been asked by the district to write up a record portraying Cyr as a danger.
“In this case I think it’s laughable. If you were to ever meet Marcel, he’s no threat. He’s not going to harm anybody. … In this instance, I don’t see any real threat of harm from disclosure of the person.”
“It’s really important for government agencies in Vermont to understand that criticism is normal and healthy,” Barrett said. “Someone comes to a government meeting and criticizes a school board in public comments: he can’t be frozen out. That’s just part of democracy, and something that school boards and select boards sometimes don’t understand.”
Lynn pitched the case and its dismissal as a part of a careful balancing act between transparency and safety: “This is a case where it is clear that sometimes concerns about safety and concerns about transparency can be difficult to balance.”
Barrett didn’t know of a similar case in Vermont, though he’d said that there’d been precedents in California and Rhode Island, where courts also ruled in favor of public records requesters, rather than siding with government agencies.
Read the court’s dismissal here: http://acluvt.org/legal/docket/files/cyr_v_addison_rutland_supervisory_union/superior_court/2012-11-06%20ruling%20on%20Marcel%20Cyr’s%20motion%20to%20dismiss.pdf
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It should be noted that the judge’s decision makes direct reference to a case that directly involved VT Digger (Galloway v. Town of Hartford – http://info.libraries.vermont.gov/supct/current/op2011-211.html)
I don’t bring this up to cast doubt on the above story. I bring this up to illuminate the interconnectedness of our legal system.
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I’d like to add a point of view from a school board member – it’s way too long to post so here’s the link … http://connectedvermont.net/the_blog/198/no_gordian_sword_for_arsu_knot
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Kudos to the court,
The superintendent clearly overstepped and acted in an unconstitutional manner and did so knowingly and willingly. No wonder they wanted to withhold the evidence! Both the superintendent and the health ‘professional’ should face at a minimum, professional censure, but neither of them should retain their jobs. They should own their mistakes and resign, so as not to cost the taxpayers any further from their actions, and they should both publicly apologize to Mr. Cyr for their unprofessional behavior.
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Why do you feel the health professional should be subject to censure?
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If they issued a dangerousness opinion about someone they’d never interviewed or met, and did so at the request of and with the connivance of the school, they’re not fit to practice in any mental health field.
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The Anne Galloway vs Town of Harford Case will come up for sure with this issue again.
State agencys are misinterpreting VSA 317 (C) 5 with GROSS misproportion and its time for the state of Vermont to get with the times.
Thank you Dan Barrett and Allen Gilbert of Vermont’s ACLU.
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What a struggle to right a system.
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Based on Judge Howard’s decision and the description in your article, this appears to be a Supervisory Union acting at its worst. First, the Supervisory Union appears to have retained some sort of “professional” to issue an opinion setting forth a warning based on “clinical concerns” about Mr. Cyr, without having examined or interviewed him. Then the Supervisory Union issued a no-trespass order based on the opinion from the “professional” that it retained. And when Mr. Cyr sought to exercise his statutory right to public disclosure concerning the no-trespass order, the Supervisory Union tried to cut him off — and keep its phony “opinion” under wraps — by filing an expensive, plenary lawsuit. We should all be glad that Judge Howard saw through this and prevented the Supervisory Union from acting as its own self-appointed Star Chamber. But I am appalled that this happened in the first place — and in Vermont, where so many of us they were progressive legislation and open government.
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Gary, there has been no suggestion the SU hired the professional to give an opinion; rather the professional of his/her own volition alerted the Superintendent to what the professional believed was dangerous situation.
Remember – the judge did not rule on the merits of the public records request. All the judge ruled on was whether or not the Supervisory Union could ask for and obtain a declaratory ruling under Vermont’s Declaratory Ruling Act.
The question as to whether the information regarding the warning should be released to the Mr. Cyr is not black and white – I have a link to a posting of mine that explains a bit of the complexity involved in a comment posted above.
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Judge Howard’s ruling, among other things, recognized that the Supervisory Union’s lawsuit for declaratory judgment sought to turn the statutory presumption in favor of disclosure upside down. The burden is, and always should be, upon the Supervisory Union to demonstrate why the requested material should not be produced. Add to this the fact that the Supervisory Union deliberately chose the most expensive method (a separate lawsuit) to oppose Mr. Cyr’s request for disclosure.
And while Judge Howard did not rule on whether the “professional’s” warning must be disclosed, even if we accept your premise that the warning was volunteered, no privilege or immunity from disclosure should apply to unsolicited advice. In this instance, the professional did not interview or examine Mr. Cyr, which renders the so-called “warning” even less deserving of any protection from disclosure.
The bottom line is that the Supervisory Union chose the most expensive, most destructive response to Mr. Cyr’s request to discover why the SU unilaterally issued a no-trespass order. That was a serious deprivation of Mr. Cyr’s rights, and the SU tried to cover its tracks in an unlawful and shameful manner.
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Actually there is an ill defined but legal “duty to warn” … see my post (via the link above). And there is an exception to public disclosure that appears to cover this “duty to warn” (again – see my post linked to above).
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None of these attempts to support the SU’s awful decision-making or its abominable legal tactics has merit. There is no exemption under 1 VSA Section 317 that provides any cover for the SU. The acquisition or use of unsolicited advice from someone who neither medically treated Mr. Cyr or clinically interviewed or evaluated him qualifies for any privilege or immunity from disclosure. Nor would it violate any medical ethics to disclose “advice,” or even a “warning” that comes from someone who has no relationship, medical or otherwise, with Mr. Cyr. And your ill-defined duty to warn does not exist here. Any such duty requires an existing medical relationship between the so-called professional and Mr. Cyr, or a special relationship that provides the “professional” with some degree of control over Mr. Cyr. This did not exist here.
It is time for the SU to face the music. I hope that Mr. Cyr’s attorney is relentless, because his client is entitled to full disclosure, recovery of his legal fees and other damages as well.
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Gary – you’re interpretation regarding “duty to warn” is very flawed. See http://www.vtmd.org/reporting for some more discussion.
Certitude is non-existent here, and now the SU is open to a lawsuit from someone submitting information under their duty to warn.
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Next step, Gary, is if a duty to warn existed, then there is indeed a statutory exemption from public disclosure:
1 V.S.A. § 317 (3) records which, if made public pursuant to this subchapter, would cause the custodian to violate duly adopted standards of ethics or conduct for any profession regulated by the state;
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Rama, my interpretation of “duty to warn” is based on relevant rulings issued by the Vermont Supreme Court. See, e.g., Peck v. Counseling Service of Addison County, Inc., 499 A. 2d 422 (1985). 1 VSA Section 317(3) is inapplicable on its face, because the so-called professional cannot violate any standard or ethical duty where: (a) his “warning” was volunteered, as you assert; and (2) where there was no medical or clinical relationship between the “professional” and Mr. Cyr. Even the Vermont Medical Society’s “duty to warn” — which cites the Peck case as well — is premised upon a doctor-patient relationship, and it is inapplicable on its face.
The SU acted very badly. The sooner we end the attempts to defend indefensible conduct, justice will be dispensed faster, and we can all learn from it.
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Lenore Broughton says, “This is what happens when Unions run schools”.
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“A school district said Thursday it’s going to turn over to a Benson parent a letter from a mental health professional that claimed the parent could pose a threat to school officials.” (AP article via NewJersey.com – http://www.northjersey.com/news/education/177981981_Vt__school_district_to_give_critic_warning_letter.html?page=all)