Three Vermont lawmakers rejected a public records request from a mental health advocate for email communication about a bill that would change the judicial review process for involuntary treatment and medication of psychiatric patients.
The request, filed by Laura Ziegler, an advocate and former psychiatric patient, requested communications between lawmakers and the state’s hospital association after Nov. 15. Ziegler received the denial last Friday.
Ziegler wanted to know the degree to which input from the hospital association influenced the legislation that was eventually introduced, and to get a clear picture of the reasoning behind changes sought in S.287, the involuntary treatment and medication bill, she said.
“I think that should be open to public scrutiny,” Zeigler said in an interview Monday.
The request was made of Sen. Claire Ayer, D-Addison, chair of the Senate Health and Welfare Committee and one of the bill’s sponsors. Sen. Jeannette White, D-Windham, another of its sponsors, and Rep. Anne Donahue, R-Northfield, a longtime mental health advocate.
In a recent post on her blog under the subheading “Voice of the People,” Donahue explained that she denied Ziegler’s request because of the “chilling effect” it would have on the flow of information to legislators from advocates and members of the public if those communications were deemed public records.
“It didn’t really make sense to act in a way that could send some kind of signal that this is in fact under public records, and people need to fear that what they share with their legislators could be made public,” Donahue said in an interview.
Donahue said her decision to deny the request was made on principle.
Ziegler said she found Donahue’s post disingenuous because it did not reveal that the communications requested specifically involved a paid lobbyist for the hospital association, which has a vested interest in the involuntary treatment and medication process.
In a letter drafted with the help of legislative counsel, the lawmakers acknowledge the requested records exist, but say that they are exempted from Vermont’s public record law because of the deliberative process privilege (section c-4 in the subchapter linked).
The common-law legislative principle protects the deliberation, speech and debate of lawmakers from civil or criminal liability. The legislative privilege is enshrined in Act 14 of the Vermont Constitution.
The letter also claims an exemption extending attorney-client privilege to communications between lawmakers and legislative counsel (section c).
Barry Kade, an attorney familiar with Vermont public records law, said he doesn’t believe either exemption should apply to written communication when a lobbyist is involved. Common law privileges are waived when a third party is present, he said.
“Spousal privilege wouldn’t apply to a conversation when your neighbor was present,” he said.
“It tells me that there are at least some legislators who think they can communicate with lobbyists and those communications are exempt from disclosure,” Kade said of the lawmakers response to the records request.
Communication just between lawmakers and legislative counsel could be exempt, Kade said.
The attorney-client privilege afforded lawmakers and legislative counsel also goes out the window when there is a third party to those discussions, said Allen Gilbert, executive director of the Vermont American Civil Liberties Union.
“Essentially, once a lobbyist has put something in writing to a legislator that should really be public record,” Gilbert said.
The letter lists seven categories of communications, such as correspondence among lawmakers, other members, Legislative Council staff, representatives of the hospital association and two third parties, but it does not specify which exemption applies to each category of communication.
“They can’t just list all the records they have and then generally cite exemptions that could apply to all or some of them,” said Gilbert.
Both Ziegler and Kade said the language of the letter indicated to them that the Legislature is girding for a legal battle.
Twice the letter states, “Assuming, without conceding, that the Public Records Act applies to the General Assembly. …”
The idea that the Legislature would be exempt from public records law is a weak argument, according to Kade.
While there are exemptions from open meeting law for the Legislature, he’s unaware of any constitutional basis for exempting lawmakers from public records requests, Gilbert said.
“I don’t think too many people doubt that the public records law applies to the Legislature,” he said. “It makes it seem as though they’re reaching for reasons why they can withhold the documents.”
But Gilbert said Ziegler’s request falls into a murky area of public records requests where there isn’t much case law to guide people in reading the applicable statutes.
The request might be viewed differently, Gilbert said, if the medium was conversation instead of written correspondence.
There’s a greater expectation of privacy in conversation, he said, and it’s possible the representatives for the hospital association viewed their correspondence with lawmakers as a private conversation.
“It’s interesting that we expect one to be confidential and the other to be transparent,” Gilbert said, of conversation and written communication.
Kade said he believes all communications — including conversation — between lawmakers and lobbyists should be public, but in this case, Zeigler’s request was specific to written communication.
Private nonprofit hospitals in Vermont are now administering involuntary treatment and medication to psychiatric patients. This kind of activity was previously conducted by the state before the old state hospital was closed due to flooding, Gilbert pointed out.
It’s also possible that, because the hospital association was acting as a contractor for work that used to be performed by the state, the contract created some expectation of privacy under the deliberative process privilege, Gilbert said.
He encouraged Ziegler to appeal the rejection of her request, if for no other reason than to gain clarity on which exemptions the lawmakers are using.
“That’s really key to analyzing if it makes sense to challenge their decision,” Gilbert said.
Ziegler has contacted Kade and several other attorneys. If she were to appeal the decision, she would be appealing to the very lawmakers that initially rejected her request.
Under Vermont’s public records law, the appeals go the the head of the agency to which the request was made. When a public records request is made of a lawmaker, as an independent constitutional officer, they are considered the head of agency.
“I do not wish to attack legislators for trying to protect the integrity of their deliberations,” Ziegler said, but she said that their denial of her request is troubling and not consistent with her reading of public records law.
The decision to reject her request has negative implications for people across the media and activism spectrum, Ziegler said, and she hopes that others will rally to her cause.
Vermont’s involuntary commitment and treatment procedures, and the judicial review of those decisions, is a contentious topic.
Lawmakers have tried unsuccessfully in the past to reform the system, which some say is broken but others argue protects the rights of psychiatric patients.
There will be a public hearing on the bill, S.287, at 5 p.m. Thursday in Room 11 of the Statehouse.
CORRECTION: An earlier version of this story said the lawmakers were asserting the deliberative process privilege. The lawmakers are actually asserting the common-law legislative privilege. Also, Ziegler did not ask for communication between lawmakers and Legislative Council as originally reported.
