The chair of a key Senate committee believes people who inspect public documents should pay the costs for staff to prepare them.
Sen. Jeanette White’s view runs contrary to the majority opinion but aligns with the dissent in a recent Supreme Court case.
However, White, D-Windham, chair of the Senate Government Operations Committee, also misunderstood what the majority decided.
Her committee and the equivalent House committee are reviewing the Public Records Act in the wake of the high court split decision.
In September, the court ruled 3-2 that the Legislature made a clear distinction between requests to “inspect” documents and to “copy” them. The court majority said the costs to prepare documents for public inspection, including making redactions, could be charged only if the petitioner requested “copies” under the Public Records Act, not when someone wants to “inspect” documents.
The “plain language” of relevant statutes, Supreme Court Justice Paul Reiber wrote, “separates requests to copy from requests to inspect, and the section only authorizes charges for staff time associated with requests for copies – not requests to inspect.”
In an interview Wednesday with VTDigger, White said she thought the ruling only excluded charges for actual inspection time. She thought the court decision had left intact the power to charge for costs to prepare documents prior to inspections.
Thursday, during a committee hearing, White said after a legislative lawyer summarized the decision that she had misunderstood a key part of the ruling.
“I was a little confused and didn’t remember (the court) specifically stated” preparation costs could not be charged for inspections. “I missed that somehow,” White said.
In the interview and during the committee hearing, White made clear she believes charges should be applied to prepare and redact exempted information from documents — whether the requester wanted copies or to just inspect them.
She and others, including Attorney General TJ Donovan, argue it takes the same time and effort to prepare documents for inspection as it does to prepare them to be copied.
“The inspection itself is free but getting up to the inspection, I think that that’s a different question,” White said Wednesday.
“I don’t think that was ever the legislative intent” to not allow charges for research for inspections but only when copies are requested, she said.
“It’s the same preparation,” she said.
During the committee hearing, White said the distinction of charging for research for copies but not inspections made “no earthly sense at all.”
Public Safety Deputy Commissioner Chris Herrick said his department expended significant staff time to comply with about 4,600 Public Records Act requests, which he estimated was about 60% of the requests made to state government in a year.
Questioned by White, Herrick testified his department didn’t charge for redaction and other preparation costs for a request to inspect — but not copy — documents.
“We’re not allowed to,” Herrick said.
“I see that now,” White responded. “I don’t think I ever understood that.”
State Archivist Tanya Marshall also testified her agency does not charge for preparing documents and has set fees for copying.
White said she drafted a bill before the session but withdrew it because she knew advocates would “glom on” to its provisions. Instead, she said she would have the committee draft a bill after taking testimony. White said Thursday a bill has to be out of committee by Jan. 31 to get passed this year, unless the House passes a bill.
The House Government Operations Committee has also been taking testimony. There, some committee members have raised concerns the Supreme Court ruling could result in open-ended requests for records “inspections” that could take up significant state worker staff time.
Government Operations chair Rep. Sarah Copeland-Hanzas, D-Bradford, has been noncommittal on whether her committee will take up a bill.
“We need to take a look at all the issues and if there’s language change that is warranted after we’ve taken a look at the landscape and heard all the questions and the interpretations, we may explore that. No decisions have been made about that,” she said recently.
Another issue in the wake of the ruling is the definition of a “copy.” Secretary of State Jim Condos has said AG Donovan is stretching the definition of copies to include cellphone photos in order to be able to charge for research and redaction fees and still comply with the Supreme Court ruling. Donovan contends photos are copies because they can be taken with the requestor. In an interview, Donovan said he thinks the Legislature should clarify what constitutes a “copy” and “what is reimbursable and not reimbursable.”
Lawmakers have also heard testimony that fewer exemptions to the Public Records Act, more than 270 exemptions that require information to be blacked out or not released, would make complying with requests simpler. Advocates and some lawmakers have also argued better record keeping, including removing personal information when a document is saved, could make fulfilling later requests easier.
