[I]n a settlement this week of a lawsuit over the release of public records, the state of Vermont will pay $30,500 in attorneys fees and costs and the Agency of Education will provide to a journalist information it withheld about bullying and hazing in Vermont schools.
The American Civil Liberties Union of Vermont filed the suit against the state Agency of Education on behalf of former Rutland Herald reporter Lola Duffort, following repeated attempts by Duffort to get the agency to release a school-by-school breakdown of reported and verified instances of bullying, harassment and hazing over a span of several years.
According to the terms of the settlement reached this week, the education agency agreed not only to provide the information it had withheld, as well as additional data reports, but it also agreed to comply with statutory requirements to report the data annually, on a school-by-school basis. The state also agreed to pay the ACLU $30,500 for attorney fees and litigation costs.
“I think it sends the message that data is public information and that you absolutely need to work with requesters to make this information public,” Duffort said Wednesday of the settlement. “I’m so glad the court part of this is done and that now I can look at this data and write a story.”
Secretary of State Jim Condos said Wednesday that the case and the payment of attorney fees and costs highlights the attention that must be given to public records requests.
“I think this has the potential to send the message to public bodies that you must comply, or it’s going to cost you,” Condos said.
The ACLU filed the suit on Duffort’s behalf in Rutland Superior Court, after the state rejected a series of public records requests Duffort had made while working as a reporter for the Rutland Herald.
“After nearly two years of public record requests, a lawsuit, a legal decision in her favor, and tens of thousands of dollars expended, Lola Duffort has finally vindicated her right to access public records that she should have had within days,” Jay Diaz, a staff attorney with Vermont ACLU, said Wednesday.
“This case is a powerful example of why Vermont badly needs to reform its public records law so that our government is truly open and accountable to the people it serves.”
The ACLU argued in its suit that the information Duffort had requested was 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.”
Individual schools provide the information electronically to the state Agency of Education, which then uses the information to produce an annual statewide report, but without a school-by-school breakdown.
The agency argued that to comply with the public records request it would need to “create” a document it currently doesn’t produce after gathering the information from its databases.
Judge Helen Toor ruled in May that gathering the data from a database did not constitute creation of a new record, and said the Agency of Education must release the information.
The judge, in her ruling, said the question boiled down to whether running an electronic query for the purpose of producing an existing record in a usable format could be considered 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.”
The Agency of Education provided the report to Duffort following a hearing on a matter, but three days before the judge issued her ruling in the case.
The report is available on the Agency of Education website.
The report does contain redactions pursuant to The Family Educational Rights and Privacy Act, or FERPA.
“The Attorney General’s Office and the Agency (of Education) supports the Public Records Act and open government as well as protecting legal privacy interests of Vermonters and their children,” Assistant Attorney General Melanie Kehne, representing the state Agency of Education, said Wednesday. “This settlement does both.”
The number of instances of bullying in schools where the numbers of incidents were 10 or below was redacted to protect pupil privacy, according to Diaz.
“We said, “What about zero?”’ Diaz said. “If it’s zero, then there’s no privacy implication because nobody has been impacted.”
As a result of the settlement, the Agency of Education will provide information to show if zero incidents were reported at a particular school, he said. “We’ll at least know that incidents did occur or did not, and whether there was a response or not,” Diaz added.
In a filing in the case, the Vermont ACLU questioned whether the Agency of Education would have provided the information without a lawsuit.
“The evidence and admitted facts could not be clearer: the defendants would never have provided Ms. Duffort with the responsive records without this suit and her affirmative motion for judgment on the pleadings,” the ACLU filing said.
According to the ACLU, negotiations have been ongoing for several months. The parties settled the matter just before a scheduled court hearing.
The Vermont ACLU’s legal costs and fees in the case totaled a little more than $45,000, Diaz said. The Public Records Act allows a party bringing a case to recoup “reasonable fees” in cases where they “substantially prevailed.” The ACLU’s attorneys fees were $200 an hour for this case, Diaz said.
“As we said all along to them, we were willing to reduce our fee number if they were willing to do some policy changes and provide some additional data,” Diaz said.
Duffort, who is now working for the Concord Monitor in New Hampshire, said Wednesday that as more and more government information is collected and stored in electronic formats it is important the journalists and citizens ensure they have access to it.
“Some of the most critical information that the government holds now about its citizens is in the form of data,” she said. “Government agencies need to know that they have to take these requests seriously even if they’re going to be a little cumbersome to produce.”
(Editor’s note: Alan J. Keays served as the news editor at the Rutland Herald at the time this lawsuit was filed.)
