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, it seems, has always been a bit timid when it comes to government transparency. When it marched boldly into the world of openness back in 1975 it exempted all cities, towns, villages and counties from the open records law. Compliance — letting citizens in on the work of government — the legislators argued, would be too onerous a burden on Vermont’s hundreds of hamlets. Happily that enormous exemption lasted only a year. But in the 35 years since, the state has added exemption after exemption to the code, more than 200.
This year, for the first time in many, a move is on to strengthen the law. As it now stands a citizen who successfully sues to gain access to a withheld public record “MAY” be awarded attorney’s fees. But so rarely do courts award fees, the law may as well be silent on the issue.
The proposed amendment would change the “may” to “shall,” a giant step forward in the battle for transparency. If citizens must resort to the courts to see records the law says they are entitled to, they shouldn’t have to bear a financial burden. The proposed change addresses that flaw. Just when the House-originated amendment seemed headed for enactment in the Senate, objections were raised by Vermont’s League of Cities and Towns. Having to pay court costs would be a burden, the league argued. Exempt us.
A few senators on the committee handling the amendment appear ready to vote in favor of the late-entry exemption, a step that would prove once again that Vermont isn’t serious about open government.
Take a look at the public meeting law, for example. Turn to the frequently asked questions section of the statute. You’ll be impressed with how it starts out.
What is a public meeting?
“Vermont law mandates that all meetings of a public body are to be open to the public at all times.
“A public body is defined as any agency, board, department, commission, committee, branch, instrumentality, or authority of the state or any agency, board, committee, department, branch, instrumentality, commission, or authority of any political subdivision of the state.”
You’ll be less impressed by the answer to next question.
What meetings are permitted to be closed?
“Below are exemptions to Vermont’s access to public meetings law.
“Meetings pertaining to the judicial branch of the government of Vermont.
“Deliberations of any public body with a quasi-judicial proceeding.
“Meetings pertaining to a public service board.
“Quasi-judicial proceeding” means a proceeding which is:
- a contested case under the Vermont Administrative Procedure Act; or
- a case in which the legal rights of one or more persons who are granted party status are adjudicated, which is conducted in such a way that all parties have opportunity to present evidence and to cross-examine witnesses presented by other parties, which results in a written decision, and the result of which is appealable by a party to a higher authority.
In English that means such bodies as the village planning and zoning board, which hold hearings in the sunshine but deliberations in the dark, are exempt from the public meetings law.
Since a good deal of the work of government in Vermont is at the “quasi-judicial” level, there is no end to what we don’t know — or have the opportunity to learn.
Add to that huge exemption the one under consideration regarding the award of court costs and you have still more evidence of Vermont’s backwoods concept of openness.
Our annual town hall meetings are a model of grassroots democracy. But if Vermonters can’t get public records without a lawsuit, can’t be compensated for the lawsuit’s cost after victory, can’t listen in on the deliberations of a zoning board or countless other public bodies, are shut out of government by hundreds of other exemptions, isn’t that democracy more a facade than a reality? And isn’t it about time Vermonters did something about it?
