Auditor urges PSB to make transcripts more affordable

Nathan and Jane Palmer of Monkton are not happy that a proposed natural gas pipeline is slated to go through their property. Photo by Andrew Stein/VTDigger

Nathan and Jane Palmer of Monkton are not happy that a proposed natural gas pipeline is slated to go through their property. VTDigger file photo

Jane Palmer of Monkton was not taking notes at a technical hearing on a natural gas pipeline project proposed to pass through her property last year.

At the end of the Public Service Board hearing, she asked regulators for a transcribed copy of the proceeding and was told she had to purchase the public records from the private court reporter for 10 cents per page.

The Palmers, who oppose the project and had party status in the case, say they never purchase the transcripts because they cannot afford them.

“It’s definitely a disadvantage,” she said about the cost of the transcripts. “Had we known how stacked the deck was against us, we may not have [intervened in the case].”

The Palmers are like many other landowners, businesses, utilities and other special interests participating in the siting of energy projects in Vermont. The quasi-judicial Public Service Board regulates electric, gas and telecommunication utilities and private water companies, and reviews the economic and environmental impacts projects these companies plan to build in the state.

The public must pay for written transcripts of these court-like proceedings. The cost of these records prompted the State Auditor’s Office to investigate the PSB’s method of recording proceedings and making those records available to the public.

Last month, the State Auditor Doug Hoffer released a report that found the PSB does not control how much is charged to the public for transcripts of regulatory proceedings. Instead, a private court reporter has ownership rights to these documents and sells them to the public at whatever price it deems necessary.

The auditor’s office found the current process posed hurdles to accessing public information.

“PSB cases attract a wide range of parties from a broad spectrum of socioeconomic backgrounds,” Hoffer said in a statement. “The very nature of these cases demands greater accessibility to this public information.”

The PSB has a contract with Burlington-based Capitol Court Reporters Inc., which sets prices the PSB pays for the documents, which varies based on the time and duration of the public hearing as well as the time for preparing the documents.

The public can view the court transcripts at the PSB’s offices free, but the PSB cannot distribute the documents to the public without first passing some legal hurdles.

Two decades ago, the board adopted a longstanding practice for charging the public for documents “owned” by the court reporters, which was at the time a conventional practice in the court system, according to General Counsel Michael Dworkin’s July 1994 legal opinion on the issue.

June Tierney, the PSB’s legal counsel, said the business before the board has changed dramatically in the past 10 years. Previously, utilities, state agencies and large corporations did not question the board’s public records practices; now, she said, more individuals are involved in board’s proceedings.

That’s why she said the board Chairman James Volz has made it a priority to make these documents available to the public since he was appointed in 2005. She said the board planned to switch to an electronic filing system, ePSB, by early 2015, which would makes the documents available online. That date has been pushed back to early 2016, she said.

However, she said the board will consider ways to make the documents available sooner. But first, the board must request legal advice from the Attorney General’s Office as to whether the board can change the cost structure of the transcripts. The PSB contract with Capitol Court Reporters expire on June 30.

The board pays the court reporter an appearance fee that ranges from $150 to $275 for a public hearing. The per-page copy fee for the transcripts ranges from $2.75 to $7 based on whether the proceeding was held during the day or night and turnover time. According to the auditor’s report, the PSB paid Capitol Court Reporters about $204,000 between fiscal years 2011 and 2013.

The PSB bills these cost back to the applicants. According to the report, Green Mountain Power paid $10,958 in transcription fees during the case that led to the approval of the utility’s Kingdom Community Wind farm. Vermont Gas paid $7,067 during the proceeding that approved the natural gas utility’s 41-mile pipeline extension through Addison County in December.

These amounts only include the transcription fees state regulators billed back to the utilities and not what the utility paid for their own documents, the report states.

The report found attorneys representing towns in PSB proceedings paid from 25 cents to 50 cents per page. By comparison, the secretary of state charges 5 cents per page for public records requests made to state agencies.

John Herrick

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  • Annette Smith

    Scroll to 42:20 in this video
    https://www.youtube.com/watch?v=nJQx2eHIhos
    where a very nice lady asks the PSBoard Hearing officer if they will “be able to get a copy of the proceedings for tonight”. The hearing officer for the PSB then admits it is inconvenient to go to the PSB to view it, otherwise they would need to purchase it from the court reporters. There is then some grumbling from the audience, then someone else asks if they can make a copy of it and the answer is he’s not familiar with the law but there might be copyright issues. Ends at about 43:40.

  • Jane Palmer

    Gee, that photo sure looks like I am taking notes. But the reality was, I had my right hand in a splint (Tenosynovitis from too much typing and time on the computer) and even though I was trying to write things down, the result turned out to be illegible. But I wasn’t that worried…I just assumed the transcripts would be available. If I had known otherwise, I may have asked another friend to take notes (Nate’s handwriting is ALWAYS illegible!)
    It was a stressful event and it is very hard to remember all that was said during that entire week of testimony.

  • Jane Palmer

    Another “weirdness” I thought at the time of the technical hearings was that there was no wifi available at the hearings…unless you paid the Capital Plaza hotel to hook up. Those attorneys that had the technical capacity to get internet at the hearings or could pay for it were also at an advantage. We could not communicate silently with those outside the hearing room or bring up documents that we did not have on our own hard drive. That also put us at a disadvantage. The technical hearings for Docket 7970 were held at the Capitol Plaza I guess because of the amount of participation. I don’t know if wifi is available at the PSB hearing rooms.

    • Annette Smith

      Yes, there is free wifi in the PSB hearing room.

      The last time I was in a Capital Plaza conference, there was no cell service sufficient to get a signal for my iPad and the only available wifi cost money.

  • Cynthia Browning

    Thanks to auditor Doug Hoffer for reporting on this issue. It does seem like a violation of at least the spirit of our public records law to have such a financial barrier to access to the PSB proceedings for Vermonters.

    I would like to check whether a change in the statute could improve this situation.

    Rep. Cynthia Browning, Arlington

  • Linda Baird-White

    I totally agree Cynthia. There should be uniform access to public records relating to access via wifi/tel-communication costs for hearings.

    I am also wondering why this hearing was not conducted at the Public Service Board where wifi is free. It’s a hearing conducted with a state office and you would think it would be conducted within the confines of that office within a state departmental conference room.

  • Tom Buchanan

    The lack of access to transcripts isn’t just a “nicety” that gives the public access to the record. Those transcripts are essential for any party hoping to draft concluding briefs that relate final arguments to the actual record. But the problem is even bigger than that. The fee for access to transcripts is based on how quickly a party needs them, with faster turn-around more expensive. In longer cases, or those in which hearings last more than a day or two, well financed participants such as the petitioners will have access to the transcript while the hearings are still happening, and can adjust their questioning and development of the record accordingly. Small intervenors don’t have that advantage. Thus, the lack of access to transcripts creates an imbalance in access to justice.

    As for access to wifi…in my experience the Board does its best to meet in its own conference room which does have free wifi. The Board will move the hearings when they think there will be a lot of folks from the public and the crowd will exceed the capacity of their meeting room. The Board seems to try to accommodate the public whenever it can, and if conditions allow, the Board tries to seek the opinion of the parties before changing the venue.

    • Jane Palmer

      It was my understanding that wifi was available for the group (that was having the hearing at the Capitol Plaza to accommodate the large number of participants) but the PSB did not find it necessary to pay the added fee to the Hotel for the service. We asked the PSB staff about this and this is what we were told.

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