[A]ttorney General TJ Donovan announced earlier this month that his office had begun posting all public records requests — and the responses to them — on a new website. The intent was to make his office more transparent, he said.
“We want to tell Vermonters we’re working on this,” Donovan said in his Feb. 14 valentine to the news media and other frequent requesters of government information. “And if you want the information we put out, you can have access to it.”
Donovan was given a round of positive media coverage and praise from groups including the Vermont chapter of the American Civil Liberties Union. News organizations and the ACLU have been critical in the past of the way the Vermont Attorney General’s Office has handled records. VTDigger has wrangled with the AG over records pertaining to the state’s involvement in the fraud at Jay Peak, documents from a 2011 investigation of a town clerk who is accused of stealing more than $1 million, and records in the Burlington College case from the Agency of Education that were destroyed on the advice of the Vermont attorney general.
But Mike Donoghue, a former longtime reporter for the Burlington Free Press who is executive director of the Vermont Press Association, said he has misgivings, including that making his public records requests public will tip off his competition to what he’s doing.
Donoghue said he wasn’t speaking for the press association. The VPA executive board won’t take a position on the issue until its next meeting in March.
But he described this scenario: “This may be a long-term project that I’m working on that I don’t plan to write the day I get 150 pages dropped on me by the attorney general.” The fear would be that other reporters might see his request and scoop him on his own story, Donoghue said.
He said some VPA members have been asking him informally, “Don’t you think this will have a chilling impact, on people asking the attorney general for information, knowing that it’s going to go up on the web?”
Robert Hemley, a Burlington lawyer who has handled media and First Amendment cases in Vermont for more than 40 years, said if media organizations wanted to block disclosure of their public records requests, the most likely path would be via the “trade secrets” exemption under which businesses can ask that competitively sensitive information they share with state agencies can be kept under wraps.
The section of Vermont’s Public Records Act covering trade secrets describes them as “confidential business records or information, including any formulae, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which a commercial concern makes efforts that are reasonable under the circumstances to keep secret, and which gives its user or owner an opportunity to obtain business advantage over competitors who do not know it or use it.“
Hemley said a media outlet might argue that “the fact we are pursuing a possible story constitutes a plan” covered by a trade secrets exemption.
Donovan said in interviews that his sole purpose was for his office to improve a past record that many in the media and elsewhere had criticized as less than friendly to transparency. “We probably haven’t been doing a good job on transparency,” he said. “We want to change that.”
Journalists interviewed for this story were divided between welcoming an apparent push for greater transparency, and those who said the hook of transparency comes with a barb on the end that reveals the work of journalists prematurely.
Reporters questioned Donovan’s sincerity, pointing out his reluctance last year to release details of a consultant’s performance review of his office.
Montpelier-based freelance journalist Hilary Niles said, “when this recent demonstration of dedication to transparency by the AG is matched by a similar dedication in other mechanisms of disclosure, then I’ll come closer to trusting that it’s genuine … Such a shift would be especially influential coming from the AG, because that office not only responds to requests for its own records, but also provides legal advice to other agencies responding to requests they receive, as well.”
Some argued that the optics would be very poor if journalists who had clamored for years for more openness now began asking for information about their own work to be secret.
“The irony’s not lost on me,” Donovan said twice in an interview.
Seven Days political editor Paul Heintz, who led a group of journalists last year in pushing for the passage of a media shield law that protects journalists from being called in as witnesses to events they’ve covered, said that reporters are “naturally competitive.”
“We don’t always want other other news outlets to know what investigations we’re pursuing,” Heintz said.
“That said,” Heintz continued, “it’s our job to demand more information, not less. So it would be beyond hypocritical to condemn this move.”
Niles, a key organizer in the push for last year’s media shield law legislation, said journalists should celebrate the greater transparency promised in Donovan’s announcement — and should mine the newly available lists of public records requests for stories. The requests are from lawyers, private citizens, companies and reporters.
“Since the press typically comprises only a minority of individuals who request public records from any government office, I’m sure the inventory will present a trove of scoops and story ideas for any reporter enterprising enough to monitor it,” Niles wrote in an email.
Anthony Iarrapino, a Montpelier lawyer who has handled several Public Records Act cases, said a new trade secrets exemption for reporters could open questions many journalists try to avoid, including who’s a real reporter and what’s a real news organization.
“Do we really want bureaucrats deciding who is considered part of the news media and who isn’t? Or should we assign (legislative committees) the task of defining that in statute? That’s a can of worms I would not want to open,” Iarrapino wrote.
Retired state Archivist Gregory Sanford, a longtime supporter of transparency in government, said Vermont’s Public Records Act was meant to impose requirements on government agencies and officials, not on private citizens requesting information.
“I think the public records are meant to make government deliberations and actions visible but not to expose the identities of those exercising their right to know,” Sanford said in an email.