Editor’s note: This op-ed is by Allen Gilbert, the executive director of the American Civil Liberties Union of Vermont. He is a member of the Vermont Journalism Trust board, which oversees VTDigger.org.
The legislature is close to enacting some of the most significant changes to the state’s public records and open meeting laws since these laws were put into place in the 1970s.
But consideration of at least one of the bills — H.73, the public records bill — has grazed a guard rail and is in danger of running off the road.
Last week the Senate committee reviewing H.73 took up a suggestion to “bifurcate” some of the requirements of the bill. Local government would be exempted from the awarding of fees and costs to citizens who go to court over a public records request and win. Only state government would have to play by the new rules.
The bifurcation scheme makes little sense. 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.
But the history of open government legislation in Vermont shows resistance from local government from the day the original public records bill was introduced in 1975. That bill, H.276, was introduced by Rep. Lew Kedroff of Springfield.
While the stonewalling and cover-up abuses of Watergate may have been the immediate catalyst for H. 276, its foundation was much deeper. The bill cited Chapter I, Article 6 of the Vermont Constitution, noting that “Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment.”
The bill originally made no distinctions among “public agencies.” All would be covered, in any part or on any level of government. But at some point during the review of the bill, a definition of “public agency” was inserted that changed this. (The hand-typed insertion, with arrows pointing to where the text goes in the bill, is visible in the archived copy of the bill.) The definition stated, “As used in this subchapter, ‘public agency’ or ‘agency’ means any agency, board, department, commission, committee, or authority of the state. Towns, cities, counties, schools and all subdivisions thereof are not included in this definition.”
The bill, therefore, bifurcated how requirements of the law would be applied. Despite the seeming oxymoron that a local government entity was not a public agency, the bill passed the House on March 26, 1976, was “messaged” to the Senate for quick passage, and signed into law by Gov. Thomas Salmon on April 7, 1976.
The very next year, however, the same legislator, Rep. Kedroff, introduced a bill, H. 350, to amend the new law. Rep. Kedroff clearly was not happy with the exemption for local government. He wanted the definition of “public agency” changed to what it is now — “any agency, board, department, commission, committee, branch or authority of the state or any agency, board, committee, department, branch, commission or authority of any political subdivision of the state.”
Rep. Kedroff got his way. The bill was passed by the House on March 1, 1978, by the Senate three weeks later, and signed into law by Gov. Richard Snelling on April 5, 1978.
Since then, the actions of all officers of government – not just those on the state level — can be examined through the records of their proceedings.
The impetus of Watergate abuses are not present as legislators now debate the open government initiatives supported by the Shumlin administration and numerous organizations, including the ACLU. But we’ve seen enough in Vermont in recent years to know that good government is open government, and that transparency leads to accountability.
“Bifurcation” is never a sound idea. No distinction should be made between different levels of government on an issue as important as the public’s right to know what their government is doing.
