A Rutland judge has ordered the state Agency of Education to provide a reporter information it collected and has in electronic databases regarding bullying, hazing and harassment in Vermont’s public school.
Rutland Superior Court Judge Helen Toor issued a ruling this week siding with Lola Duffort, a former Rutland Herald reporter, in her public records lawsuit against the state Agency of Education seeking the data.
“The (education agency) concede that they have the electronic data and can query it for the information Duffort requests,” the judge wrote in the seven-page ruling.
“Because (the education agency) have ‘conceded that (they) possess in (their) databases the discrete pieces of information which (Duffort) seeks, extracting that and compiling that data does not amount to the creation of a new record,’” Torr said, quoting in part a federal court ruling from the Washington, D.C., district.
Duffort said Friday that she was “thrilled” with the decision.
“Just because something is data doesn’t mean it’s not public information. I think that’s a really important point to make at a time when the government collects more and more data in an electronic format,” she said. “I think public records will look increasingly like what I requested.”
Duffort is represented in the case by the Vermont chapter of the American Civil Liberties Union.
“What the court opinion does,” Lia Ernst, an attorney with the ACLU of Vermont, said Friday, “is it establishes legal precedent for the proposition that agencies cannot deny records on the grounds that retrieving records from a database is not something they are required to do.”
Assistant Attorney General Melanie Kehne, representing the Agency of Education, could not immediately be reached for comment.
The case stems from a series of public records requests Duffort filed last year while she was still working for the Rutland newspaper. She is seeking school-by-school breakdown of incidents reported and verified of bullying, harassment and hazing over a span of several years.
The lawsuit was filed in July after the state had rejected each public records request. According to the lawsuit, such information is important 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.”
The agency has argued 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. However, that report provides the statewide data, but without a school-by-school breakdown.
At a hearing in the case last month, Kehne, representing the Agency of Education, argued that the agency has met its “statutory obligation” by providing the statewide statistics on bullying, harassment and hazing in its report annually to the Legislature.
To provide a school-by-school breakdown, the attorney said, the agency would have to “create” a document it now doesn’t produce after gathering the information from its databases.
Ernst replied at that hearing, “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.”
Toor, at that hearing, said at one point she was “leaning” to Duffort’s side.
The judge, in her ruling this week, said the question boils down to when is running an electronic query producing an existing record in a usable format, and when is creating a new record.
“As Duffort points out, if the electronic query is akin to a manual search of file folders for the requested information, the fact that the search is done manually cannot change the result,” the judge wrote.
“Thus, if the information exists in the agency files, albeit electronic ones, and merely needs to be ‘pulled out’ of those files by a query as it would be by a human hand from paper files, the information is not protected from disclosure. Such a query is not the creation of a new record, it is the collection of existing records.”
Duffort is now a reporter at the The Concord Monitor newspaper in New Hampshire. She said Friday it’s her intention to write a story based on the data for a Vermont news outlet.
Ernst said there are few outstanding issues that will have be resolved in the case, including reviewing what redactions, if any, are made to the documents provided. Also to be decided is whether the state must cover the ACLU’s attorneys fees in bringing the case.
“What we’ve seen throughout Vermont is an unfortunate tendency by agencies to attempt to find ways to deny public record requests rather than seeing public records requests as a partnership by which Vermonters can better understand how the government is doing its work on their on behalf,” Ernst said.
She then added, “This opinion addresses one of the many ways that agencies have sought to deny public records requests, unfortunately there are many fights left to the had.”
(Editor’s note: Alan J. Keays served as the news editor at the Rutland Herald at the time this lawsuit was filed.)
