Editor’s note: This op-ed is by Gregory Sanford, the state archivist.
They hide in the thickets of statute and case law. They are insatiable hunters, attacking your right to know wherever they find it. They are carriers of a wasting disease that can wither our public records law. They are, we all agree, the cataracts that cloud government transparency.
I am, of course, talking about exemptions to Vermont’s public records act (1 V.S.A. §317).
Recent legislative sessions, editorials, and political campaigns have raised a hue and cry over exemptions and the insidious threat they pose to our freedoms. They are so elusive they defy easy enumeration; reporters, candidates, and open government advocates count anywhere from dozens to hundreds of exemptions. At one recent primary debate the moderator, a newspaper man, gave up, sputtering that there were “a ridiculous number” of exemptions.
This may be my fault (it is, as my staff likes to say, “all about me”). Years ago I became intrigued by the first exemption listed in §317, which broadly exempts “records which by law are designated confidential or by a similar term.” I decided to go in search of these exemptions. Initially, I put the results up in narrative form on our web page; later Tanya Marshall, our chief record analyst, compiled the exemptions into an online database. The database allows you to search by agency, exemption or keyword and is found at a href=”http://vermont-archives.org/records/access/”>http://vermont-archives.org/records/access/.
While there are 39 exemptions listed in §317 we found 228 other statutes containing exemptions. Well, that is not exactly right, and here is where my true culpability begins to emerge. The database actually lists 267 statutory exemptions, but that includes the 39 exemptions of §317. The list also includes 31 statutes that require some type of compliance with providing a record (not necessarily an exemption) and 12 statutes that govern fees for providing copies of public records. Some statutes—and remember, for the most part I am counting statutes, not exemptions—may have more than one exemption.
But you say, “who cares; one exemption is one too many in an open society.” Clearly the news media and almost all the current statewide candidates perceive the exemptions negatively.
Since the database guides us to the various habitats in which the exemptions lurk, let the hunt and extirpation begin. Searching by exemption, the first category is address confidentially, which derives from 15 V.S.A. §1152 and is designed to protect the address of victims of domestic violence, sexual assault, or stalking. The great thing is, if we eliminate this exemption, it is referenced in six different statutes and we would quickly drop from 267 statutory exemptions to 261.
If we search by “client confidentiality,” we find 77 statutory exemptions; this should be fertile hunting ground indeed. For example, 12 V.S.A. §1612 exempts medical patient information; 12 V.S.A. §1705 exempts personally identifiable HIV testing results; and 18 V.S.A. §9333 prohibits the use of genetic testing results in certain situations; etc, etc. If we can eliminate these 77 statutes we are now down to a mere 190 exemptions.
The temptation would be move on to personally identifiable information (147 statutes) but that would be like shooting exemptions in a rain barrel. After all, who would want to exempt their personal tax information from disclosure by the Tax Department (exemption #6 in 1 V.S.A. §317)?
Okay, okay; I am yanking your chain. My point is that “public record exemption” has become such a negative reference symbol in our public dialogues that we lose sight of some of the privacy and other concerns they are designed to protect. All aspects of our public records laws should be routinely revisited and, if necessary, repealed or clarified; that is essential. But we should not automatically assume—as much of the current dialogue does—that exemptions are inherently evil.
As we expect and approve more and more government services, government by necessity gathers more and more information about our lives to determine need, eligibility, and other criteria. Consequently, we need safeguards to protect the unwarranted disclosure of this personal information, particularly in the absence of a comprehensive law protecting personal information.
We should not lose sight of the fact that our public records law was designed to make government, not the lives of citizens, more transparent. We also live at a time of heightened security concerns and therefore create exemptions for ongoing criminal investigations; computer codes and encryptions embedded in certain government information systems; and details of vital infrastructures.
As an aside, it is interesting to note our (appropriate) dis-ease with personal information in public records and our much more cavalier attitude to the vast of amounts of personal information collected, sold, and manipulated by Internet providers, credit card companies, retailers, airlines, etc.
I think a more robust story must be told than can be provided by simply counting the number of exemptions or by sputtering that, whatever the number, it is “ridiculous.” Without a better understanding of why an exemption has been made we will never know if it strikes an appropriate balance between your privacy and your right to know. Without understanding the intent of an exemption we cannot easily judge whether it is being misapplied. No citizen should be exempt from developing a better understanding of our records laws.
Note: For our failure to adopt laws protecting personal information see the April column at http://vermont-archives.org/publications/voice/pdf/PrivateLifeOfPublicRecords.pdf
