Editor’s note: This op-ed is by Allen Gilbert, the executive director of the ACLU of Vermont. He is also on the board of the Vermont Journalism Trust, which serves as VTDigger.org’s governing body.
The Senate committee reviewing the House’s public records bill (H. 73) is looking to declaw key provisions.
The Senate Government Operations Committee is considering exempting local governments from the mandatory awarding of attorneys fees and costs to prevailing plaintiffs in public records litigation.
The mandatory awarding of fees and costs is the most significant change the House-passed bill makes to the state’s most important open government law. The legislature passed the law 35 years ago, in the wake of the Watergate scandal. The law was considered an essential step in giving citizens access to public records to hold government accountable.
Yet the bill has never had an enforcement mechanism. Citizens were expected to enforce it, through individual actions or through the press. They were also expected to bear the cost of doing so, even if it meant going to court to force government to turn over public records.
The result has been an ineffective law that has allowed government to flout disclosure provisions.
The House, with backing from the Shumlin administration, sought to change that by directing that citizens or organizations that take a government agency to court over release of records, and win, would have their legal bills paid.
But now the Senate Government Operations Committee wants to exempt local government agencies from the enforcement provision. State agencies would have to abide by the enforcement provision (a court “shall” awards fees and costs to prevailing plaintiffs), but select boards, school boards, city councils, and other municipal bodies would be exempt (a court “may” award fees and costs to the prevailing plaintiffs — but courts hardly ever do).
The idea to bifurcate the standard for awarding fees and costs has been pushed by the Vermont League of Cities and Towns and the Vermont School Boards Association. It hadn’t been discussed at all by the committee until late Wednesday afternoon.
Three senators were in the committee room when the idea was broached — Chair Jeanette White, and Sens. Peter Galbraith and Peg Flory. The committee was going through a list of “outstanding issues.” Chair White asked, “What shall we do about fees and costs?”
Galbraith — reacting to testimony from the governor’s legal counsel, Beth Robinson, that the administration preferred a straight “shall” on fee awards — suggested the bifurcation. “Give the state what it wants — a straight ‘shall.’”
But I’d leave the law intact for municipalities, he said.
Galbraith said he shared the concerns of local officials that the mandatory awarding of fees and costs to prevailing plaintiffs was too burdensome for local governments.
Although no formal vote was taken, Flory and White indicated they agreed with Galbraith. That would make a majority on the five-person committee. The committee is expected to take formal action later this week, when the other senators on the committee — Sens. Anthony Pollina and Claire Ayer — are present.
Earlier, the committee agreed on another bifurcation. It decided there was no need for local government to appoint public records officers, as state agencies are being asked to do. Those public records officers are to receive training on records management, and on responding to public records requests. But local officials won’t have to follow those requirements. The requirements are too burdensome, the committee said – even for the state’s largest cities, towns, and school districts.
“Bifurcation” of public records requirements is a bad idea. The same open government standards should apply to all public officials. The state constitution doesn’t say that local officials are less accountable than state officials. A city council that unjustifiably withholds records is no less guilty of breaking the law than a state department.
No distinction should be made between different levels of government on an issue as important as the public’s right to know what its government is doing.
