Editor’s note: This op-ed is by Doug Clifton, the retired editor of the Cleveland Plain Dealer and former executive editor of the Miami Herald. He is a member of the Vermont Journalism Trust board, which is the publisher of VTDigger.org, and treasurer of the board of the New England First Amendment Center.
Vermont’s public records law gives judges the power to award attorney’s fees to anyone who successfully challenges a public records denial in court. Most states do the same. But Vermont judges rarely exercise that power, leaving the victorious, but poorer, citizen to fend for him or her self.
In the salad days of the news business most public records challenges were litigated by newspaper companies, and most judges saw attorney’s fees as a cost of doing business. These days newspapers are cash strapped and as a result file fewer costly court challenges.
Under the law as it stands today, the only just outcome of a successful public records case is the award of attorney’s fees. But the real remedy is to remove the burden from the taxpayer altogether.
That’s why a case pending in Vermont Superior Court is more important today than it might have been just a few years ago. So is a substantial modification of the law.
Back in October State Auditor Tom Salmon was stopped by a state trooper who wrote him a citation for drunk driving. The arrest was documented by a video camera mounted on the trooper’s car, standard operating procedure.
Like all such videos, it was made available for purchase (at a cost of $45) on the Department of Public Safety’s website. A short time before Republican Salmon’s arrest, Democratic gubernatorial candidate Peter Shumlin had his own brush with the state police. He was caught speeding. His video arrest was also posted on the DPS website.
There being great interest in the governor’s campaign, a local TV station requested the Shumlin video. It was released without hesitation.
Enter attorney John Franco, a friend and supporter of Doug Hoffer, Salmon’s opponent. Franco coughed up his $45 and requested a copy of the Salmon video. That’s when Public Safety Director Tom Tremblay, a Republican appointee, decided that the video wasn’t a public record subject to the open records law.
Franco sued, ultimately won and made a request for attorney’s fees in accordance with the law. The matter sits before Superior Court Judge Geoffrey Crawford. The only issue he should be weighing is how much Tremblay must pay.
One of the great ironies of public record laws is that the taxpayer bears all of the burden. The law says he or she can see most records produced by government. But if government functionaries deny that access, the citizen must pay the costs of a challenge.
Who pays the government’s legal fees in fending off that challenge? The taxpayer. In fact, the taxpayer foots the bill on both sides of the dispute, and if he or she wins nine times out of 10 the court refuses to assess fees, the taxpayer’s only opportunity to be made whole. And in those rare cases that fees are awarded, where does that money come from? From – of course – the taxpayer.
Under the law as it stands today, the only just outcome of a successful public records case is the award of attorney’s fees. But the real remedy is to remove the burden from the taxpayer altogether.
What would have gotten the attention of Tremblay when he decided to withhold this public record? A reduction in pay if he lost? A smaller pension? The loss of vacation and sick pay? What if a public official had to personally pay the price of a defeat in a public records case?
My guess is that we would see far fewer gratuitous denials of perfectly reasonable records requests.
Transparency was a much-discussed issue during Vermont’s election season. Now is the time to take up a serious discussion of how best to remove the burden of openness from the taxpayer and place it where it belongs, on the public official who works diligently to bar the public from its right to know.
Meanwhile, the least we can do is pay John Franco what he’s owed.
