The Vermont Attorney General’s Office this week began posting online all public records requests and responses from 2017 and 2018.
The decision to make the information public was driven by criticism from media organizations, according to TJ Donovan, who assumed the office of Vermont attorney general last year.
Battles over public records have made headlines over the past few years. The Rutland Herald, the Vermont ACLU, VTDigger and the Vermont Press Association have all sued the state for documents.
Records relevant to key VTDigger stories, including the EB-5 fraud at Jay Peak Resort and an embezzlement case in Coventry, have been completely withheld, delayed and/or heavily redacted. Documents, for example, that would bring to light the nature of the relationship between state officials and the developers at Jay Peak have been denied for three years because of a broadly defined relevant litigation exemption in the law. Other news organizations have also experienced difficulty obtaining documents.
Donovan described stories about denials of records requested by news organizations as “fair criticism.” He wants the office to be more transparent, he says. “We want to provide insight into what we’re doing,” he said in an interview Tuesday. “It’s not going to solve all of the problems in front of us, but it’s a small step forward.”
Posting requests and responses online, however, won’t change the fact that many records will still be blocked from public purview, he says. Requests would continue to be subject to Public Records Act exemptions for relevant litigation, privileged work product information and attorney-client confidentiality rules, Donovan said.
Just how the Vermont Attorney General’s Office should deal with the release of public records has become a “daily conversation in my office,” Donovan said.
Donovan is attempting to strike a different tone from his predecessor, Bill Sorrell. Under Sorrell’s tenure, the office fought to block records requests.
The Vermont Attorney General’s Office released 10,500 pages of records last year, according to Donovan, and responded to 115 requests. The new webpage where the records are posted gives the public an opportunity to see what has been released, what has been denied and how quickly the requests were filled. The requesters include attorneys, business representatives and members of the media both in Vermont and out of state.
“We want to tell Vermonters we’re working on this,” Donovan said. “And if you want access to the information we put out, you can have access to it.”
The webpage will be updated when the attorney general has responded to records requests. Previously, individuals had to place a formal records request with the office for documents that had already been provided to other members of the public. The website expedites access in this instance.
In a press release, Donovan said that a “vibrant democracy depends upon citizens knowing and understanding how their government operates.”
“The Attorney General’s Office is committed to transparency and will continue to ensure that Vermonters’ right to know is protected,” he said.
Donovan’s online transparency project does not address the ongoing weakening of the Vermont Public Records Act. The state currently has more than 270 exemptions in the law that effectively neuter protections for the public’s right to know.
Members of the media and civil liberties advocates have asked the Legislature to consider reducing the number of exemptions to 10, the current number allowed under the federal Freedom of Information Act.
Unless an individual or organization goes to the expense and trouble of filing a lawsuit, which may have an uncertain outcome, exemptions cannot be effectively challenged.
Recently, advocates for the public’s right to know have experienced a few successes in the courts. Brady Toensing, a lawyer and Vermont Republican Party officer, along with a group of news organizations, including the Caledonian-Record and VTDigger, successfully appealed last year to the Vermont Supreme Court for access to the private email of former Vermont Attorney General Bill Sorrell.
Last week, the Vermont ACLU won $30,000 in attorneys fees from the state for the cost of litigating a records case for aggregated information from the Vermont Agency of Education about the prevalence of bullying in local schools.
While a few court challenges have succeeded, many agencies across state government continue to issue blanket denials, charge exorbitant fees and heavily redact documents (issuing documents with missing or blank pages).
Right to know advocates have questioned whether the apparent abuse of exemptions under the Vermont Public Records Act effectively undermines Article 6 of the Vermont Constitution, which requires “That all power being originally inherent in and co[n]sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”
The Vermont Legislature is now considering a measure that would create an independent ombudsman position that would be charged with reviewing records that have been blocked from release to determine whether state agencies are adequately protecting the public’s right to know.
