The Vermont State Employees Association is suing the state over a $1,200 fee for two public records request.
The Douglas administration has said it will charge the union to look at information regarding the elimination of a Fish and Wildlife staff position and a computer use monitoring program for state workers known as Marshall 86.
Officials from the Agency of Natural Resources and the Department of Human Resources have also stated in letters to the union that they would charge additional fees for the public records requests in the event that VSEA contested the matter in court.
The union filed its complaint in Washington County Superior Court on Tuesday.
At issue is the word “copy.” Is viewing a document the same thing as asking for a copy? The union says no – that simply looking at public records is different from asking for a copy. VSEA maintains that no fee should be charged if no copies are requests.
The Douglas administration says yes – it equates public viewing with asking for a printed copy.
State law says that the Secretary of State may promulgate rules for charges associated with copying public documents for interested citizens. The Secretary of State has developed a schedule for “the actual cost of providing a copy of a public record.” One of those rules includes a $0.57 a minute fee for staff time spent on “extracting data from databases.” The Department of Human Resources and the Agency of Natural Resources have applied that rule to collecting information that would be viewed by VSEA.
The union argues that any citizen has the right to ask the government to supply information to the public free of charge. Government, they say, has an obligation to be as transparent as possible with the public about how it is spending taxpayer dollars.
The administration argues that fulfilling public records request is a costly proposition – and that cost is incurred by taxpayers.
Abigail Winters, a lawyer for VSEA, says it has been the long-time practice of the union to review records and they have never been charged for the privilege before. The union asked to see contracts, internal e-mails and correspondence regarding the elimination of a Fish and Wildlife biologist position and the new Internet monitoring system for all state employees.
“I don’t know if it’s just new management over there (the Agency and Department both have new heads), but I don’t think there’s support for it in statute,” Winters said. “Is this another case of the administration ignoring the law? It may be. I think of regular citizens being charge a bill for a few hundred bucks to see what they’re own government is doing — they’re not going to be able to (come up with the money) and look at it.”
David Corriell, the governor’s spokesman, said VSEA’s requests were “broad” and it takes time to cull through information that isn’t relevant to the request. An inundation of requests could slow down the pace of state government, he said.
“It takes a considerable amount of staff time, paid for by taxpayers,” Corriell said. “There’s a limit to our ability to drop everything and fulfill a request.”
He emphasized the state’s obligation to keep costs down in order to satisfy taxpayers. “It’s the public’s money. Every dollar we spend in state government is paid for by taxpayers,” he said.
What about government transparency, don’t fees for viewing documents impinge on the public’s right to know? “Not at all,” Corriell said. “We’ve always complied with requests. We feel it’s a reasonable balance to comply and ask for reimbursement.”
Winters, in a letter to Steve Collier, general counsel for the Department of Human Resources, explained her view that she didn’t think compiling documents and e-mails would take much time.
“We would expect that only a handful of DHR’s small staff would maintain files concerning the (Internet monitoring) program and that these files would be easily retrievable,” Winters wrote. She went on to say, “A relatively simple search of the involved staff member’s e-mails using search terms such as ‘WebMarshal,’ ‘monitoring,’ and ‘Internet’ would produce the relevant correspondence requested. The contracts we’ve asked to review should be maintained by your office and readily available.”
Collier countered that the aforementioned request was “broad” and would require “in excess of 24 hours,” and would cost $707.43, plus copying fees of $807.98.
Similarly, the Department of Fish and Wildlife determined that it would take 18.5 hours for senior staff to provide documents from Wayne Laroche, the commissioner, and two other officials regarding all correspondence and budget information in reference to a Fish and Wildlife Scientist position. The cost? $462, according to Meghan Purvee, general counsel for ANR.
In 2007, there was a similar brouhaha over a public records request for internal administration correspondence pertaining to the mass layoff of state workers. When the union was charged $1,700 to view the information, it took its case to the press. Eventually, the administration dropped the fees.
Allen Gilbert, executive director of the Vermont Chapter of the ACLU, said he found the most recent VSEA-Douglas administration dispute troubling. “It doesn’t matter which administration is in office, it’s the statutory and constitutional requirement that government be responsive to citizens and when any official fights over access to public records, you question their commitment to open government.”
Each court filing in Washington Superior cost the union $262.
Read the Vermont Secretary of State fee schedule for copying public records.
Title 1 V.S.A.
§ 315. Statement of policy
It is the policy of this subchapter to provide for free and open examination of records consistent with Chapter I, Article 6 of the Vermont Constitution. Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment. All people, however, have a right to privacy in their personal and economic pursuits, which ought to be protected unless specific information is needed to review the action of a governmental officer. Consistent with these principles, the general assembly hereby declares that certain public records shall be made available to any person as hereinafter provided. To that end, the provisions of this subchapter shall be liberally construed with the view towards carrying out the above declaration of public policy. (Added 1975, No. 231 (Adj. Sess.), § 1.)
§ 316. Access to public records and documents
(a) Any person may inspect or copy any public record or document of a public agency, on any day other than a Saturday, Sunday, or a legal holiday, between the hours of nine o’clock and twelve o’clock in the forenoon and between one o’clock and four o’clock in the afternoon; provided, however, if the public agency is not regularly open to the public during those hours, inspection or copying may be made during customary office hours.
(b) If copying equipment maintained for use by a public agency is used by the agency to copy the public record or document requested, the agency may charge and collect from the person requesting the copy the actual cost of providing the copy. The agency may also charge and collect from the person making the request, the costs associated with mailing or transmitting the record by facsimile or other electronic means. Nothing in this section shall exempt any person from paying fees otherwise established by law for obtaining copies of public records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged.
(c) In the following instances an agency may also charge and collect the cost of staff time associated with complying with a request for a copy of a public record: (1) the time directly involved in complying with the request exceeds 30 minutes; (2) the agency agrees to create a public record; or (3) the agency agrees to provide the public record in a nonstandard format and the time directly involved in complying with the request exceeds 30 minutes. The agency may require that requests subject to staff time charges under this subsection be made in writing and that all charges be paid, in whole or in part, prior to delivery of the copies. Upon request, the agency shall provide an estimate of the charge.
(d) The secretary of state, after consultation with the secretary of administration, shall establish the actual cost of providing a copy of a public record that may be charged by state agencies. The secretary shall also establish the amount that may be charged for staff time, when such a charge is authorized under this section. To determine “actual cost” the secretary shall consider the following only: the cost of the paper or the electronic media onto which a public record is copied, a prorated amount for maintenance and replacement of the machine or equipment used to copy the record and any utility charges directly associated with copying a record. The secretary of state shall adopt, by rule, a uniform schedule of public record charges for state agencies.
