Attorney General TJ Donovan has imposed a new rule barring members of the public from photographing records they are inspecting, in what civil rights attorneys say is a violation of both the Public Records Act and a recent landmark Vermont Supreme Court ruling.
On Wednesday, VTDigger inspected public records at the Attorney General’s Office for the first time since the high court ruled in September that records can be inspected without charge for copies and staff time for redaction and reproduction.
While staff at the AG’s office promptly arranged a session for a reporter to inspect records, it also provided a policy handout that places a prohibition on requesters taking cellphone photographs of records they are inspecting, or making their own copies by other means.
“Any requester who elects to inspect public records shall not make electronic copies or photocopies of the inspected records unless the requester is willing to pay applicable charges,” the protocol states. “This prohibition includes, but is not limited to, the use of scanning devices, thumb drives, cameras, or cell phones during inspection.”
The Attorney General’s Office provides legal counsel to all agencies in state government. Last year, the Secretary of State’s Office characterized the status quo among agencies responding to public records requests as a “knee-jerk reaction” to deny requesters and force an appeal.
Jay Diaz, a staff attorney at the American Civil Liberties Union of Vermont, said the latest protocol was a step in the wrong direction for governmental transparency.
“This is an unnecessary and unwarranted restraint on Vermonters’ freedom that undermines faith in our government’s commitment to fundamental values of transparency and accountability,” Diaz said via email.
VTDigger viewed documents related to the refiled charges against Aita Gurung, who is accused of murdering his wife with a meat cleaver in Burlington, on a computer in the Attorney General’s Office in Montpelier. A reporter did not challenge the policies during that visit.
The precedent-setting Supreme Court decision came on an appeal of Reed Doyle v. Burlington Police Department, which asked whether the public has the right to inspect public records without incurring administrative costs.
The ACLU-Vermont represented Doyle, a Burlington man seeking body camera footage of alleged use of force in 2017 by Burlington police against children of color.
In a ruling for the majority in the case, Chief Justice Paul Reiber was sympathetic to state agencies that will not be compensated for staff time spent on redactions.
But Reiber wrote that the Legislature differentiated between copying records and inspecting them, and ruled that charging for staff time exclusively refers to “copies” that the requester can physically take away.
Diaz said the AG’s new protocol diverges from the Doyle decision.
“Restricting the use of a requestor’s personal devices to photograph or scan public records flies in the face of the Supreme Court’s decision in Doyle, which affirmed the Legislature’s policy that any doubt about transparency should be resolved in favor of disclosure and government accountability,” he said.
Charity Clark, Donovan’s chief of staff, said the office believes a requester who wishes to make copies is subject to the same costs that would be associated with state employees doing the work.
“The Court also acknowledged that the Public Records Act authorizes charges for staff time associated with copies,” Clark said via email. “Based on the Court’s logic, a requester making copies with their own device is subject to a request of reimbursement from the State.”
Clark cited part of the Doyle decision in which the court interprets the Legislature’s definition of a copy as a “record that the requester could keep and review wherever and whenever the requester chooses.”
However, a copy is explicitly defined elsewhere in the Public Records Act as being produced by “copying equipment maintained for use by a public agency,” which would not seem to apply to smartphones or cameras belonging to members of the public.
The Secretary of State’s Office has also advised government offices to only charge fees when additional staff time is needed to fulfill a request. Among the items the office recommends against charging for is when “The requester snaps a photo of a record.”
Robert Appel, a civil rights attorney based in Burlington, said that the AG’s new policy was contrary to the Public Records Act and the Supreme Court’s decision in Doyle vs. BPD.
“I think the court’s decision on Doyle was pretty clear with what the law means — public access with no artificial hurdles,” Appel said in an email. “It doesn’t cost them anything for you to bring a scanner.”
Appel said Clark’s argument is “pretty twisted and not consistent with either the plain language of the statute and the holding of the majority in Doyle.”
He highlighted part of the Doyle decision which emphasized that under the law, “the section only authorizes charges for staff time associated with requests for copies — not requests to inspect.”
The issue will likely go to the Legislature for clarification, Appel said.
VTDigger will seek immediate action from the Attorney General’s Office to change its policy.
VTDigger requested communications on Sept. 16 between the Attorney General’s Office and the governor’s office or Chittenden County State’s Attorney’s Office about Gurung between June 1 and present. (The news organization changed a request for copies to a request for inspection in light of the Doyle decision.)
Donovan decided to refile charges against Gurung which Chittenden County State’s Attorney Sarah George had dismissed after determining she would be unable to counter Gurung’s insanity defense.
Donovan reviewed the cases after Gov. Phil Scott questioned George’s decision and requested Donovan take another look. Gurung’s attorney, Sandra Lee, said she believed Donovan’s decision to refile the charges was political.
Upon inspection, some 40 pages of records did not provide any new insight into communication between the branches of government about the cases. The records primarily consisted of already public communications, including the dismissal notices in each case explaining George’s rationale.
