Editor’s note: This opinion piece is by state archivist Gregory Sanford. The column, part of the Voice from the Vault series, first appeared on the Vermont Secretary of State’s Web site.
Dr. Elisabeth Kubler-Ross, in her 1969 book “On Death and Dying,” famously laid out five stages of dying: denial and isolation, anger, bargaining, depression, and acceptance. I have long played with the idea of writing about the five stages of public records legislation: enthusiastic acceptance since who isn’t for open records and government accountability; confusion since we understand so little about the context, meaning, and specific applications of our public records laws; anger once the participants realize that the laws, established or proposed, might actually apply to them; bargaining in order to craft bill language that clarifies the bill applies to everyone else; and once bargaining fails, rejection.
I don’t have the wit or wisdom, or the requisite cynicism, to fully develop the categories of public record legislation. Still, over the years, I remain fascinated by how complex and frequently emotional our public record debates are.
I was recently a most reluctant observer of an effort to add an exemption to our public records law (1 V.S.A. §317) that would clarify that donors to university and colleges could be granted anonymity if wished. The proposal was initially greeted with strong legislative support. This, however, was followed by widespread negative editorials, creating legislative confusion/caution, leading to rejection.
Given the limited space of this column let me look at just one of the issues raised: the right to privacy. Vermont statutes mention such a right (1 V.S.A. §315) but never describe it beyond stating that “all people…have a right to privacy in their personal and economic pursuits…”
Several commentators asked why Vermont didn’t have a stronger privacy provision. No answer was forthcoming, so come with me back to 1974 as Watergate was winding down and Nixon resigning. In Vermont two records bills were drafted. One, drawing on a new Federal Freedom of Information Act, set out a right to inspect and copy public records; the other addressed the protection of personal information in public records. The former bill became our public records act; the latter, Senate Bill 33 of 1975, died in committee.
The idea of an information review board, with numerous variations, is still periodically proposed in legislation. Those proposals, like S. 33, have not been enacted.
S. 33 came out of a report by the Committee on Administrative Coordination on “Confidentiality, Privacy, and Security of Information: Data Collection, Storage and Use By Public Organizations in Vermont.” The report was delivered to Governor Tom Salmon in October 1974. It noted that “in recent years there has been a quantum increase in the amount of information collected, stored, used and dispersed by individuals and more importantly, by organizations.” The committee reviewed the Vermont Statutes Annotated to identify laws governing the collection and use of information; it gathered agency forms used to collect information and interviewed agency heads; and it reviewed federal and state laws as well as the emerging literature on data gathering and privacy,
The findings are interesting and, in many cases, familiar. The committee noted the lack of coordination among agencies in managing information; a point often made in this column. It identified 341 separate agency forms used to collect personal information and identified those that were protected by statute, regulation, or by “the discretion of the administering officials.”
The committee recognized that “the need for information by government is real and legitimate…but it is the responsibility of government to insure that personal information is selectively gathered, properly used, and protected against unauthorized, or authorized but unwarranted, disclosure and dissemination.” The committee determined that “collected data must serve a legitimate public purpose” and “the public purpose must significantly outweigh the potentially damaging results to the individual of untimely or unauthorized disclosure of the data.”
S. 33 incorporated most of the committee’s recommendations, including strong civil and criminal penalties for the unauthorized disclosure of protected information. It also included creation of a five member information review board that would:
- Compile and categorize policy statements from agencies on the collection and use of personal information.
- Review such statements for consistency with statutes and require changes when necessary.
- Establish and maintain a central data element register (what data are being collected but not including personal identifiers);
- Hear and adjudicate specific agency or citizen complaints regarding personal information policies, and
- Report annually to the governor and general assembly.
The idea of an information review board, with numerous variations, is still periodically proposed in legislation. Those proposals, like S. 33, have not been enacted. It is one of the ironies of S. 33, the un-enacted companion bill to our public records law, that we do not know why it died in the Senate judiciary committee. The record is silent; the privacy bill died a very private death.
The privacy report and S.33 are on our spotlight on records section.
PostScript: Another issue that came up in the recent legislative committee testimony was the number of exemptions that exist outside of 1 V.S.A. §317. The media complained that such exemptions were not compiled. Actually VSARA has a database to the records laws at http://vermont-archives.org/records/access/index.htm. The number of exemptions really depends on what question is asked: the number of statutes; number of exemptions (Sec. 317 is one statute but has 39 exemptions); or the number of protected record types (if you search our database by “exemption,” for example, you will find approximately 60 exemptions related to one type of record: client confidentiality
