Editor’s note: This op-ed is by Gregory Sanford, the state archivist. It first appeared as part of Sanford’s series “Voice from the Vault,” on the Vermont Secretary of State website.
Even the simplest of things can involve complex systems. To make a pencil you need a forest, bauxite, coal, and rubber (or substitute) for the wood dowel, the aluminum eraser holder, the graphite “lead,” and the eraser. You need processes to log and mine; transportation systems to bring the raw materials to their respective plants and the pencils to market; and manufacturing facilities for everything from turning bauxite to aluminum to producing the actual pencil.
This interplay of the simple and the complex is described in Jeffrey Kluger’s book, Simplexity. As I listened to testimony on H. 73, a public records bill, I remembered Kluger. The testimony touches on accountability and accountability is simplexity itself.
Article 5 of the 1777 Vermont Constitution stated, “That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.”
What could be simpler? But why weren’t judicial officers included? Why did the 1786 Vermont Constitution condition accountability by adding “in a legal way” between “at all times” and “accountable to them” (language that remains, now as Article 6)? There are reasons, but they are complex.
Complexity isn’t a bad thing and can be simply resolved. For years the legislature grappled with how, within the public record definition, to keep up with proliferating record formats. The definition mentioned “papers, documents, machine readable materials”; computer databases came and went from the definition like Brigadoon; and videotape, DVDs, and other formats were queuing up for inclusion. In 2008 the legislature resolved this by dropping mention of specific formats and simply adding “regardless of physical form or characteristics.”
Sometimes “simple” solutions create complexities. Back in the 1990s legislators encountered, as candidates, wildly divergent charges for copies of voter checklists. Each municipality had its own formula for determining the actual cost of providing copies. Legislators wanted, if not uniformity, at least standards for understanding how charges were determined.
The 1995-96 legislature amended 1 V.S.A. §316 to address this concern. It was simple. The secretary of state established by rule an actual cost schedule for copying records, including charges for staff time after the first half hour but “only for the time directly complying with the request…” Complexity then raised its head.
What did “time directly complying with the request” mean? Only the time physically spent copying; time locating the requested records; time retrieving it from off-site storage; lawyers’ time to see if the record was exempt in whole or in part? And so on.
I wish I could say these questions are resolved, but they remain subject to debate. Some have managed to creep into H. 73. Let me digress.
In Vermont State Employees’ Association v. Vermont Agency of Natural Resources (Docket No: 517-7-10 Wncv) Judge Geoffrey Crawford denied the State’s assertion that actual cost charges could be applied to staff time used to provide records for inspection. Judge Crawford, however, acknowledged the state’s argument that new technologies require a digital record to be “copied” before it could be inspected: “The clear distinction between inspecting and copying when the [Public Records] Act was originally adopted no longer matters so much…” I think that simple explanation misses more complex issues but I won’t go there.
Consequently, H. 73 would allow charges for inspecting as well as for copying records. There is, understandably, disagreement about this. Another “simple” fix, however, has gained support. Private parties who prevail in a public records case should be awarded legal costs. Judges no longer “may,” but “shall” award legal costs.
Advocates for the change argue that court costs, even without hiring a lawyer, deter citizens from appealing a denial of access to records. Even if a citizen substantially prevails, some assert, litigation costs are rarely awarded. Making public agencies financially liable for inappropriately denying records is, therefore, essential to restoring accountability.
Further testimony suggested this might not be a simple solution. Should there be a “level playing field” with government eligible for litigation costs when it prevails? This would discourage “frivolous” law suits; but who defines a “frivolous record request”? The public records laws are the only ones where the citizen, not government, is charged with enforcement. Can you charge a citizen for exercising a right?
What if there is more than one plausible interpretation of an exemption; if the denial was made in good faith but was overruled, should the government have to pay (and, some add, taxpayers, not the government, ultimately pay)? What does substantially prevail mean? If you are denied access to 10 records and the court says you have rights to five, is that substantially prevailing? How do judges determine the awarding of costs? What if the winning lawyer’s rates and hours are way above average Vermont rates or the lawyer submits questionable charges; should the lawyer be fully compensated? How many record cases have there been and how often were costs not awarded the prevailing party?
Testimony continues. After all these years I still find such dialogues fascinating. Accountability is simplexity.
On Feb. 4 a Burlington Free Press story on H. 73 was headlined: “Reforming Vermont’s public records access proves difficult.” Two days later a Burlington Free Press editorial proclaimed “Accountability is a simple issue.” My response to both is “Yes.”
