Washington County Superior Court Judge Geoffrey Crawford has awarded $6,026 in legal fees to the Vermont State Employees Association. It’s a second strike against the state of Vermont in a dispute with the state workers’ union over access to public records.

Crawford ruled last week that the VSEA is entitled to recover attorney’s costs for time spent preparing a court case against two state agencies that charged the union $1,300 to look at public records.

Crawford determined in January that the Public Records Act does not authorize the state to impose a fee for the “inspection” or viewing of public records. Therefore, Crawford decided, the records should have been released to the union free of charge.

In this new decision, the judged said by imposing a fee for inspection of records, “the agencies created a financial impediment” to access.

“Whether this impediment is described as an appropriate cost-shifting mechanism for ‘burdensome requests’ (the state’s argument) … or a ‘palpable chilling’ obstacle to an open democratic process (VSEA’s stance), it is plainly a financial impediment placed in the way of persons seeking access to records,” Crawford wrote in his decision.

Abigail Winters, the lawyer for VSEA who filed the suit, said Crawford granted reimbursement for the legal costs she incurred for the union at a rate of $150 per hour.

“Essentially, we got everything we asked for, and all the state’s arguments were summarily shut down,” Winters said.

Under the state’s public records law, Vermont judges have discretion to award an attorney’s fees to plaintiffs — even if they win in court. Judges “may” (not “shall”) require the defendant to reimburse the aggrieved party. In recent years, several media organizations that have successfully sued for public records (most notably the Burlington Free Press in 2000), have not recovered their legal fees. Members of the Vermont Press Association say this has had a chilling effect on pursuit of public records cases, in an era in which newspapers have lost their financial footing. CORRECTED: The VPA has not taken a position on the Legislature’s decision to embed a “safe harbor” provision in the law that allows a municipal or state official 20 days to decide whether to give up a record after an individual or entity (such as a news organization) has decided to sue for a public record.

Crawford used five criteria to determine the award of fees to VSEA. First, he determined that the plaintiff substantially prevailed. He then asked: “Did the defendant have a reasonable basis for resisting the request?” Crawford ruled no. The state’s argument fell prey to wishful thinking, in his view. “It represented a statement of what the administration wished the statute to say rather than what it actually says,” he wrote.

VSEA sued the Douglas administration over budget documents pertaining to a layoff in the Agency of Natural Resources and a computer program known as Marshall86 designed to monitor state employee use of the Internet .

At issue was the word “copy.” Crawford agreed with the union and ruled that the state shouldn’t charge the public for simply looking at state records. The state does have the right to ask members of the public to pay for copies.

The state said in order to produce the document for VSEA to review, staff had to copy the material. Therefore, in its view, a charge should be incurred.

ANR rejected the union’s request to examine budget documents pertaining to elimination of a wildlife biologist position. The scientist, who worked with municipalities to identify and protect wildlife habitat, was fired by the Douglas administration — despite language in last year’s budget bill written by the Vermont Legislature to retain the position.

Deb Markowitz, secretary of the Agency of Natural Resources, said in an interview that because VSEA prevailed, “I don’t think it was inappropriate for the judge to award attorney’s fees.”

The Department of Human Resources denied Winters’ request for email correspondence about Marshall86, spyware the state purchased to monitor workers’ Internet usage.

Kate Duffy, commissioner of the Department of Human Resources, said the VSEA had requested copies of e-mail exchanges among state officials regarding Marshall86. Duffy, who was then deputy commissioner, said it took her several hours to retrieve the e-mails, and she was one of several
employees who spent time collecting the information. The correspondence, she said, had to be printed in order for VSEA to “inspect” the record.

Duffy said in a phone interview that the law on this point is unclear and outmoded because it doesn’t adequately address electronic records. In her view, the state was justified in charging VSEA for staff time.

Winters has not yet seen the documents from ANR and DHR that she first requested last June, and she expects to wait a while longer: The state may appeal Crawford’s decision.

But in future, her day in court may be a moot point. The Legislature will take up a bill today that would allow the state to charge for inspection of records. The Shumlin administration is pushing lawmakers to pass H.73, a new public records bill that allows the state to charge for time associated with meeting requests for documents that take more than two hours of staff time to satisfy.

Beth Robinson, legal counsel for the Shumlin administration, told lawmakers last month that 98 percent of requests take less than two hours to process and that those that take longer should pay fees to cover staff time incurred for meeting the requests. Robinson did not return a late afternoon call for comment.

Markowitz said when she served as secretary of state she saw a number of cases where there were requests made for records that were “overbroad and took many hours of staff time.”

“I think what this rule will do will encourage people requesting records to narrow requests precisely, then getting what they’re really looking for as well,” Markowitz said. “As a practical matter, it’s not going to have a big effect on people requesting records.”

Winters disagreed. Until now, the right to inspect had not been challenged in court, and now that there is a ruling, she said, legislators are considering a change to the law.

“I think the timing is interesting,” Winters said. “H.73 is going on the floor this week, maybe even tomorrow (Tuesday). The only people pushing for the change to the law to make inspections subject to a fee are basically the people who lost this case.”

Crawford’s decision, she said, underscores “why fee inspection is a bad policy decision.”

“VSEA believes this statutory change is a significant step away from government transparency,” Winters said in a statement. “It would enable government officials to create financial barriers to the public’s access to government records. Under the statutory change, an agency that does a poor job storing its records will be rewarded by being able to charge fees to a citizen who simply wanted to look at those records.”

Secretary of State Jim Condos hailed Crawford’s decision. He said the legislative intent of the statute clearly allows for free inspection of records. State agency claims that records reviews are time-consuming can be a red herring.
“I think if you aren’t allowed to inspect the records free it creates another barrier intimidating factor in regards to public records,” Condos said. “If you have proper records management that’s the key to access. A lot of this goes away as more and more of state government manages records (properly).
“Sometimes you have to do things you’re not comfortable with,” Condos said. “You need to create the atmosphere for open government. That requires a change in culture and a change in attitude.”