Gov. Phil Scott said Thursday that he is opposed to establishing a new government position tasked with ensuring state agencies comply with Vermont’s public records law.
Attorney General TJ Donovan sparked a debate over public records oversight this month with his controversial policy barring members of the public from taking photographs of public records under inspection.
Scott, Condos and transparency advocates are at odds with Donovan over the rule, and say there is no legal basis for preventing members of the public from using a personal devices to take photos of records.
Donovan and Condos said the dispute points to the need for a centralized public records “ombudsman” to make sure policies are uniformly enforced across agencies, and to serve as an arbiter between the public and the state when it comes to disputes over records.
“I just want somebody who is independent, who can uniformly impose standards across state government in order to comply with the public records act,” Donovan said in an interview Thursday.
But Scott told reporters Thursday that he wouldn’t support the position, arguing the state doesn’t need to hire additional employees to ensure the state is following the records law and completing requests.
“I’m not looking to grow the bureaucracy any further than it is right now to be honest with you,” Scott told reporters. “I think we can handle this in-house. I don’t know why we would need a whole new office to do this.”
Scott reiterated his stance Thursday that Donovan’s new rule contradicts a recent Vermont Supreme Court ruling on public records inspection—Reed Doyle v. Burlington Police Department.
“The Supreme Court decision seemed clear—that we aren’t going to charge if someone has a camera and wants to take pictures of any documents,” the governor said. “They’re public documents.”
The Scott administration is in the process of writing a clarifying guidance to make sure that state agencies don’t charge members of the public who photograph records.
Donovan has maintained that taking a photograph is effectively the same thing as requesting a copy, which allows the state to charge for the time required to redact and prepare records.
He also noted that about half—49%— of records requests don’t come from individual members of the public or media, but private attorneys and businesses. Preparing and reviewing records requests from these private entities takes hours of staff time, he added, and is an expense that shouldn’t be born by taxpayers.
“Being diverted to do free legal work for outside law firms and businesses that may take an adverse position to our state,” Donovan said. “I think those are reimbursable costs.”
Condos, who has been advocating for the state to establish a records ombudsman for years, revived his call for the position this week.
In a tweet responding to Scott’s concerns, the secretary of state argued the new position would actually streamline the process for resolving public records disputes.
Our vision for an ombuds is not that they’d receive all state records requests, but act as an arbiter between the public requesting records & the agencies who possess them. It’d actually streamline gov’t, support agencies trying to comply with the law & ensure access for #VTers. https://t.co/F6mhcSmeQF
— VT Sec. of State (@VermontSOS) October 17, 2019
About 20 other states have ombudsmans or similar independent records offices, according to the National Conference of State Legislatures.
“These offices were created to investigate and mediate complaints or hear appeals of records denials. Close to half of these offices can issue binding decisions,” the NCSL states.
Condos said he would also like Vermont’s ombudsman to have enforcement authority, and the power to require state agencies to abide by open records law.
“If a request is denied by a government agency right now the only thing you can do is to go to court to get a response,” Condos said.
“My feeling is that is an obstruction, a burden on the public’s right to know, the public’s right to government accountability.”
