[T]he Burlington School District wants a judge to give it the green light to release a resignation agreement with the former head of the city’s technical center, whose departure in the middle of this past school year was ostensibly for medical reasons.
It’s not clear what’s in the agreement with Adam Provost, the Burlington Technical Center’s former interim director, but his efforts to shield the document from public view have raised questions about where a government employee’s privacy ends and the public’s right to know begins.
School officials have submitted two copies of the separation agreement between the district and Provost, but they remain under seal for a judge to review. One copy is unedited, the other contains redactions Provost has requested if the document is released.
“BSD’s position is that the redactions Provost seeks are unwarranted under Vermont law, and that the public’s interest in having a complete copy of the Agreement likely outweighs any privacy or other right which Provost may have in these circumstances,” the school district’s attorneys argued in court filings.
Provost, meanwhile, has argued through his attorneys that releasing the agreement would violate the “personal documents” exemption in the public records act – and that by merely acknowledging the document’s existence, the school district has violated its contract with him.
“BDS undertook affirmatively not to ‘discuss the existence, terms or content’ of that Agreement, and this pleading is a derogation thereof,” his attorney argues in court filings.
The suit was first reported by the Burlington Free Press.
According to court filings, the case stems from a public records request filed by Seven Days reporter Molly Walsh in June. School officials say that, pursuant to their agreement with Provost, they informed him a public records request had been filed.
Provost responded, according to the district, by submitting a redacted version of the agreement he would be comfortable releasing.
Provost left the district on Jan. 2, according to court filings. At the time, his mid-year departure was attributed to medical reasons, according to prior media reports. He’s since been working as a freelance consultant, according to social media accounts.
Provost did not respond to a request for comment.
A spokesperson for the Agency of Education, Ted Fisher, said Provost’s provisional license with the agency expired Jan. 2, the same day he left the district. Fisher said the agency couldn’t confirm or deny the existence of any investigations into an educator.
The state does publish a list of educators who have been disciplined; Provost isn’t currently on it.
Public agencies can legally agree not to proactively publicize a record about someone, said Lia Ernst, an attorney for the Vermont chapter of the American Civil Liberties Union. But confidentiality agreements don’t shield records if they’re requested under the state’s public records law, she said.
“The Vermont Supreme Court has already held that private confidentiality agreements cannot override the Public Records Act provisions. So if something is disclosable under the PRA, an agency can’t, by contract with some third party, take that record outside the purview of the PRA,” she said.
And while “personal documents” are exempted under the public records law, the state Supreme Court has ruled that applies “only if they reveal ‘intimate details of a person’s life, including any information that might subject the person to embarrassment, harassment, disgrace, or loss of employment or friends,’” she added.
“And then, if it does meet that high standard for being a highly private document, the court still weighs the public interest in releasing that document against whatever harm would be caused by that release,” she said.
Ernst said it’s not that unusual for parties to go to court because they want a judge to weigh in on their legal obligations, as opposed to seeking a particular remedy – such as money for damages.
“Given the unique circumstances of this case, it seems like a reasonable course to take. You certainly don’t want to see this becoming the norm in response to every public records requests,” she said.
But Vermont Press Association executive director Mike Donoghue, a former Burlington Free Press reporter who still covers crime and courts in Vermont, was less generous.
“This case should never have gone to court,” he said. “This is another classic case of delaying the release of public records in the hopes the news story will go away and the public will never know.”
Donoghue blasted the school for agreeing to notify Provost a public records request had been filed in the first place.
“I know of no provision under the law that allows people to tip off people that somebody’s looking for a public record,” he said. “It is preposterous.”
Alexandre Silberman contributed reporting to this story.
