A bill granting anonymity to whistleblowers passed the House Committee on Government Operations on Wednesday, minus a short-lived suggestion to broaden exemptions from the state’s public records laws.
State Auditor Doug Hoffer had requested the ability to protect whistleblowers by not revealing their identity in the course of investigations, said Chair Rep. Donna Sweaney, D-Windsor. The bill was supported by the Vermont State Employees Association, the union representing state workers.
Along the way, discussion led to the possibility of changing public records exemptions in the committee bill, too.
Tuesday evening, an unofficial amendment circulated that would have exempted from public inspection “records compiled for criminal, civil, or administrative law enforcement purposes, including the detection and investigation of crime.”
This would have vastly expanded the existing law enforcement exemption, which currently is limited to “records dealing with the detection and investigation of a crime.” This wording was hard-won by the American Civil Liberties Union and others in 2013, when legislation was passed to narrow the law enforcement exemptions.
The Vermont Supreme Court had previously said the law “permanently and categorically” exempted all criminal investigation records from public inspection — even documents related to police officers disciplined for viewing and sending pornography at work.
Act 70 in 2013 aligned the public records exemption with the federal Freedom of Information Act, which requires a balancing test between privacy rights and the public’s right to know.
Allen Gilbert, executive director of the ACLU-Vermont, said rolling back the Vermont statute to include civil and administrative law would have been a “seismic” shift.
“This isn’t just an ACLU issue,” Allen said in an email Tuesday evening to rally opposition to the proposal. “The press, businesses, or any organizations or individuals seeking information about government actions should be concerned. … Adding a huge, blanket exemption as is being proposed will mean all sorts of records that have been available could suddenly be withheld.”
Wednesday morning, the proposal was pulled before the draft was finalized for committee discussion, and the topic did not come up.
Wednesday afternoon, Sweaney said the decision was made to “keep it simple.” She said committee discussion was starting to expand far beyond the original scope of the bill’s intent, and she wanted to rein it in.
Sweaney declined to identify a specific person as the source of the suggestion, and she would not speculate on the likelihood of the proposal’s surfacing as an amendment to another bill. But neither did she discount the possibility it might come up again with another bill or in another committee.
For now, the whistleblower bill sticks to its original goal. It would allow anyone — a public employee or any member of the public — to anonymously blow the whistle on public bodies or public contractors for breaking the law, creating a threat to health or safety, or engaging in waste, fraud or abuse of authority.
If passed, the law would apply to allegations against any public body.
Exceptions to anonymity may come from other statutes detailing protocols for whistleblower cases, such as those against educators or board-certified health care professionals. In those cases, the identity of a complainant could be revealed after an investigation is closed.
In keeping with Hoffer’s preference, the anonymity granted in the new committee bill would last indefinitely, or until the complainant consents to the disclosure of his or her identity.
The anonymity is not complete, however. It applies to public inspection, but a complainant’s identity could be discoverable through subpoena powers, prosecution or civil action.
