This story by Anna Merriman was published in the Valley News on Nov. 24.
HARTFORD — Although a recent Vermont Supreme Court ruling determined that state agencies must allow people to inspect records for free, several town clerks in the Upper Valley said that taking a personal photo of land records will still result in a charge.
Since the ruling, handed down in September, Secretary of State Jim Condos and Gov. Phil Scott have said that because there can’t be a charge for inspecting records from state agencies, there shouldn’t be a charge for taking your own photograph of the record.
For some records, many town clerks are on board, not charging a fee if members of the public take their own photos, or use a personal scanner, of such documents as meeting minutes and grand lists.
But when it comes to land records, town clerks and some public records advocates differ.
Town clerks across Vermont charge $1 per page for copies of land records. They refer to a state statute, which says they can charge the fee for “uncertified copies of records and documents on file, or recorded.” Land records include everything from deeds to property tax records, and they’re stored in a vault and maintained by the town clerk.
“Land records have their own fees set in statute,” said Barre City Clerk Carol Dawes, who said that the fees apply whether a person is physically copying a land record with a machine owned by the town or taking their own photo of it. “They help to cover the cost of staffing and storing these records in perpetuity.”
Dawes isn’t alone in her reasoning. Many clerks throughout the Upper Valley charge for cellphone photos as well as physical copies, saying that the money generated by the records fee goes into a general fund to support land record maintenance and upkeep.
“A dollar-per-page goes to supply the continued existence of the vault,” said Hartland Assistant Town Clerk Laura Bergstresser. “You are paying for a peace of mind knowing that there’s a place to keep these records.”
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Others, like Hartford Town Clerk Lisa O’Neil and Norwich Town Clerk Bonnie Munday, sidestep the issue by barring the public from using phones while looking at land records. However, O’Neil said, if someone was insistent on using their phone to take a photo of a land record, they would still be charged.
Attorney General TJ Donovan said in a recent commentary that government agencies should be paid when a viewer takes a photo of a public record. Donovan noted the “enormous cost to Vermont taxpayers in preparing those documents,” as a reason for the fee.
The policy held by many Vermont town clerks is concerning to some public records advocates, including Justin Silverman, the executive director of the Massachusetts-based New England First Amendment Coalition, who said that establishing a fee for photographing land records — when it’s free to look at those same records — sets up a barrier between the public and their right to know.
“(Doyle vs. Burlington) is pretty clear that the public shouldn’t be charged,” he said, referencing the September Supreme Court ruling. “With these records being public, there shouldn’t be any fee.”
When it comes to the cost of upkeep and maintaining land records, Silverman said he’s sympathetic but that keeping those records is part of the town clerk’s job.
“That cost shouldn’t be shifted beyond tax dollars,” he said, adding that the fees are left over from a time before digital photography was ubiquitous. Charging people for taking their own photos of land records is nothing more than a “way to maintain revenue,” he said.
Indeed, O’Neil, the Hartford town clerk, said in an October email to the Secretary of State’s Office that copying fees — which can be unavoidable in Hartford since the town clerk’s office doesn’t allow the use of cameras — are an important source of revenue for the town’s general fund, more than $11,200 in 2018 alone.
“I think it is important to understand the potential consequences of the stance taken by the governor and secretary of state if it applies at the local level,” she wrote. “Or, a clear path to make up the lost revenue should be proposed. Just my two cents.”
Condos, who supported the ruling and otherwise opposes charging for phone photos, sides with town clerks on the issue of land records. In an interview Friday, Condos referenced the state statute, saying that clerks should charge for phone photos of those specific records.
“Land records are separate,” he said, adding that they’re different from other public records in the way that they’re permanent, physical records that town clerks have a responsibility to maintain.
The ACLU of Vermont agrees that the Supreme Court ruling does not extend to land records.
“The Doyle decision does not address whether town clerks can charge fees associated with requests to view land use records, whether or not the requestor takes a picture of the record. Such requests are not covered by the Public Records Act, but instead by a different statute,” ACLU Staff Attorney Lia Ernst wrote in an email Friday.
Regardless of the questions surrounding land records and photographs, some town clerks have their own exemptions to the $1 fee.
Munday said she doesn’t charge property owners from Norwich who want a copy of their own land records, and O’Neil said she doesn’t charge someone who’s taking a copy of a land record for official town business. Others, like Royalton Town Clerk Karmen Bascom, charge everyone equally, though she said she’s happy to change policy if the law dictates it.
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For Dawes, the Barre City town clerk, the primary issues come down to clarity and awareness.
“There hasn’t been any good, concerted effort to get the word out to us,” she said, discussing what the court decision means for town clerks’ records. “Are there gaps that have now been created or gray areas that have now been defined? Just having that clarity is important.”
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