The Vermont Supreme Court has unanimously ruled that the Burlington School District can disclose the separation agreement of a former school administrator to Seven Days, affirming a lower court’s earlier decision in the case.
It also upheld a lower court ruling that the school district could sue the newspaper in lieu of responding to a request for public records.
This is the fourth ruling in six months by the Vermont Supreme Court that has favored the public’s right to know. In July, the court sided with WCAX in overturning a trial judge who ruled that a decision upholding the media shield law should be kept secret. In August, it ruled that a police affidavit was not a court record and should not be exempt from public release. And in September, it ruled that the Burlington Police Department could not charge for public inspection of documents.
Seven Days had originally filed a public records request with the district for its agreement with Adam Provost, who left his position as interim director of Burlington Technical Center in January 2018.
Provost cited medical reasons when he left the post, though he had been on administrative leave for months before the resignation.
Seven Days then requested the district’s resignation agreement with Provost, which the district believed to be public information. However, after the district notified Provost of the request, he threatened to sue the district if the request was fulfilled.
Then, in a very atypical move, instead of deciding whether to comply with the request, the district filed suit against both Provost and Seven Days so a judge could make that determination.
“Seven Days continues to be concerned about this type of scenario where a public records custodian, instead of either releasing the records or refusing to release the records, asks the court to decide,” said Thomas Little, the attorney representing the newspaper in the suit. “We don’t think that’s really in the spirit of the public records law.”
Little noted that in a typical scenario, if the district had decided not to release the records, the newspaper could have decided whether it wanted to file suit to make those records public. Instead, in this case, the newspaper was sued, leaving it no choice but to go to court.
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Seven Days reported that it spent upwards of $7,500 on legal fees in the suit.
The newspaper filed suit in August 2018 against the Burlington School District for attorney fees and other legal costs that it would accrue in the district’s case.
Judge Helen Toor denied that claim in Superior Court, and the matter wasn’t taken to the Supreme Court. Little said he would give the law “careful reflection and consideration” before deciding whether to recommend that Seven Days continue to pursue the matter.
The actual agreement between Provost and the district has not yet been released. There is a 14-day period in which Provost could ask the high court to re-argue the case, and a 21-day period in which the court itself could decide to reconsider aspects of the case.
Little said Seven Days should expect to get the report on or around Dec. 27.
Provost, meanwhile, has worked as a consultant since leaving the district in January. In an August blog post, he wrote that he just completed “a very interesting temporary gig with a startup company” and planned to move on to several “innovative consulting and learning opportunities.”
Provost did not respond to request for comment Monday. Lawyers for the district declined to comment on the record about the case.
Seven Days’ attorney said the newspaper is pleased with the opportunity to view the records they have sought for nearly two years.
“You know, it’s more fun to win than to lose,” Little said. “We’re pleased the court ruled our way.”
The Vermont Public Records Act has more than 260 exemptions. The exact number, which changes from year to year, is not known because there is no statute requiring the state to report new exemptions.
The exemptions give the Vermont Attorney General, state agencies, and municipalities carte blanche to deny public access to records, right to know advocates say.
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