[R]UTLAND — A judge is weighing how much work, if any, the state has to do to compile and provide information from its databases regarding bullying, hazing and harassment in Vermont’s public schools.
“It has to be something that’s doable,” Rutland Superior Court Judge Helen Toor said during a hearing in the case last week, according to a recording provided by the court. “The question is, at what point is there an obligation under our Public Records Act to do that.”
Toor is presiding over a legal dispute brought by Lola Duffort, a former Rutland Herald reporter, against the state Agency of Education. Duffort is represented by the Vermont chapter of the American Civil Liberties Union.
“Something that is very important to our client is that this sort of response from a records request has become routine,” Lia Ernest, an ACLU attorney, told the judge at the hearing last week.
“I’m asking for data from a database, and the agency is responding that querying or searching or producing information from the database is not something we’re required to do because that’s creating a record,” Ernst added. “Ultimately, it’s something we do need a court to decide and put on record.”
Duffort, in a series of public records requests filed last year while she was still working for the Rutland newspaper, seeks a school-by-school breakdown of incidents reported and verified of bullying, harassment and hazing over a span of several years.
The state had rejected each public records request, leading to the filing of the lawsuit in July. Such information is important, according to the lawsuit, because the public has a “vital interest” in knowing how state and local school officials “are meeting the safety and educational needs of Vermont’s children.”
In addition to the information, the lawsuit seeks a ruling that the state should pay the cost of bringing the case.
The agency has responded that annually each public school electronically provides the information to the state Agency of Education. That information is then entered into state databases and used to produce an annual statewide report, but without a school-by-school breakdown.
Assistant Attorney General Melanie Kehne, representing the Agency of Education at the hearing, argued that the agency has met its “statutory obligation” by providing the statewide statistics on bullying, harassment and hazing in a report annually to the Legislature.
The agency, she added, does not have a school-by-school breakdown since it is not required by statute to produce such a report. To do so, the attorney argued, the agency would need to “create” a document it currently doesn’t produce after gathering the information from its databases.
A provision of Vermont’s public records law, 1 V.S.A. 316 (c), does state that an agency can “agree” to create a public record, but it doesn’t say it “shall” or “must.”
Kehne added that the information submitted by each school is considered a “transitory” record and is “purged” after a year.
In addition to tracking down and compiling the data, the attorney said, it would take the agency a great deal of time to go through each school’s submission to ensure that confidential or student-identifying information is redacted.
“But that’s just a burden that government bears,” Toor responded.
“Absolutely, your honor,” Kehne said, “but the notion of taking on additional burdens of having to create records, I think that’s where we wanted to draw the line, not to have to create records that don’t exist.”
Ernst, at the hearing and in a court filing, said that is not what the request is seeking.
“(T)he Defendants are incorrect: querying a database to retrieve public records stored therein is not the creation of a new record; it is simply the method by which those records are retrieved,” Ernst wrote in a motion submitted in the case.
“Here, Ms. Duffort’s request did not require the AOE to perform any calculations on, categorization of, or other manipulation of the data once extracted; that is, she did not request information about the information in the database. Instead, she requested a simple extraction of the information in the database.”
Each school, Kehne said, has the information. Toor responded that requiring a person seeking the data to contact every public school in the state “shifts the burden, obviously.”
The hearing started with both sides saying they were close to reaching an agreement to help resolve the matter.
Kehne said she had provided a sample to Ernst of what each school submits to the agency. Both Toor and Ernst said at the hearing that unless someone knows how to read the coding that schools use to fill out a template, it provided little information.
The sample filing showed long lines of numbers, commas and a small amount of text.
“It seems to me,” the judge said, “if the information is only kept in a way that is not understandable without some action to make it understandable, that there has to be an obligation to make it understandable.”
Toor then asked Kehne, “Would it be worth having you provide one year’s worth of these with a code so that it be interpreted?”
Kehne agreed to provide such a code to Ernst as well as submissions for a year from each public school in the state to see if that would help resolve the case.
Toor asked Kehne to look into what records may still exist from before 2015. The electronic system the state now uses to collect the files from the schools was put in place in 2015. Before that, schools submitted the information on discs.
Judge Toor at one point in the hearing said she was “leaning” to Duffort’s side, but later indicated she hadn’t made up her mind on matter.
Duffort, who attended the hearing and now works at The Concord Monitor newspaper in New Hampshire, declined to comment, referring questions to her attorneys.
Though Duffort is no longer a reporter in Vermont, Ernst said after the hearing that her client still wants the records and is interested in writing about what those records reveal.
“It’s not enough to just get these records,” Ernst added. “What’s necessary is that something is in place, whether with respect to these defendants, but better, with respect to just public records law generally, that agencies can’t just do this.”
Kehne couldn’t be reached for comment Monday.
Secretary of State Jim Condos said the case represents obstructionism.
“We continue to have a state government that is trying to find a way to deny, rather than find a way to meet the request,” he said Monday.
In 2011, the secretary said, he called on the Legislature to establish an “ombudsman” position to help resolve records disputes between state government and the public, heading off cases such as this one from ending up in court. However, the Legislature didn’t act on that request.
“As government officials, following both the constitution and our statutes, we need to change our culture, from a culture of denying access to information to how we can provide that information,” Condos said. “I think that’s the key.”
As last week’s hearing drew to a close, the judge said she would consider the motion from Ernst to issue a ruling in the case based on the legal filings already submitted.
“My sense of this is, this is an area that, you know, is probably a new legal area because of the fact everybody has everything electronically now,” Toor said. “It’s probably going to come up a lot.”
The judge then added, “Interesting case, whatever happens.”
(Editor’s note: Alan J. Keays served as the news editor at the Rutland Herald at the time this lawsuit was filed.)
