Questions about whether the Attorney General’s Office is placing the legal rights of state officials ahead of the public took center stage at a forum Tuesday night in Montpelier.
Charity Clark, chief of staff to Attorney General TJ Donovan, said her office is bound by ethical obligations to their clients — state government employees — when making decisions about what records to release in response to requests from Vermont citizens and the press.
“We’re required, as lawyers, to have a duty of loyalty,” she said.
Secretary of State James Condos quickly shot back.
“My only question is, who serves the public?” Condos asked.
Clark and Condos joined Rebecca Kelley, communications director for Gov. Phil Scott, and Anthony Iarrapino, a cooperating attorney with the Vermont chapter of the American Civil Liberties Union, as panelist for the forum, “Why Isn’t the State an Open Book?”
Iarrapino also jumped into the debate about where the loyalties of the Attorney General’s Office are when it comes to responding to public records requests.
“When we talk about lawyers’ ethics there certainly is a duty of loyalty to the client but there’s also another ethical provision that says lawyers can’t have conflicts of interest,” he said.
Iarrapino added that state employees who are wrongly accused have a right to the best defense. However, he said, when the Attorney General’s Office is representing people accused of wrongdoing and also responding to public records requests that may expose that wrongdoing, there is a conflict.
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“When it comes to a conflict with the public’s right to know, and the defense that is owed to a state employee, that’s a hard conflict to resolve,” he said. “We’ve got to fix that problem.”
Peter Teachout, a Vermont Law School professor, Sen. Jeanette White, D-Windham, and Rep. Sarah Copeland Hanzas, D-Bradford, also spoke at the forum, hosted by VTDigger, the Vermont ACLU, Vermont Bar Association, and Vermont Natural Resources Council.
About 60 people attended the event at the Capitol Plaza in Montpelier while others watched on the internet.
Throughout the 45-minute panel discussion Clark was in the position of defending recent decisions by the Attorney General’s Office regarding access to records.
Those decisions have included moving forward with continuing to charge members of the public to take photos while inspecting state records, despite a recent Supreme Court ruling in the case Doyle v. Burlington Police Department that fees should be charged only when a copy is requested.
The Scott administration has reached a different conclusion than the Attorney General’s Office and has directed state agencies to allow requesters to use their own devices to take images while inspecting records — without charge.
Also, the Attorney General’s Office, during the tenure of both Donovan, who took office in January 2017, and his predecessor, Bill Sorrell, have refused to release certain documents related to an EB-5 investment scandal, citing an exemption to the Public Records Act for ongoing litigation.
Those records could reveal what role, if any, state officials played in failing to stop the fraud at Jay Peak that left both investors and contractors out millions of dollars.
Clark said the Attorney General’s Office often has to review public records requests and make unpopular decisions.
“We frequently have to assert exceptions to the Public Records Act, and it can be frustrating,” Clark said.
“We’re very, very fortunate in Vermont where there is an expectation of transparency,” she said, adding, “We also value the rule of law, we value privacy.”
Specifically regarding charging the public to photograph records, Clark said the Attorney General’s Office is seeking to recoup the cost it takes the office to prepare them. That includes, she said, lawyers’ time combing through them to determine if any redactions are needed because of exemptions to the Public Records Act.
“I understand how you could read the argument as an attorney who’s trying to make an argument, and make the argument, but I don’t think it’s the right argument,” Iarrapino said to Clark. “And that’s what’s frustrating.”
Iarrapino later added, “The issue from my perspective is that the cost of secrecy in Vermont is much greater than the cost of transparency.”
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Condos reiterated his longstanding call for an ombudsperson. That person, he said, would hear appeals from the public, including media organizations, when public records requests are denied before incurring the expense of going to court.
Iarrapino said in some government agencies the first reaction to a public records request is not to try to figure out how to provide the requested information.
“The immediate instinct is to deny first and to find a reason and a rationale in the law to support that denial,” he said. “That’s not across state government as a whole, but it certainly is something that we see in different municipalities, in different state agencies.”
The panelists agreed on the need for government entities to have better record management systems, allowing for quicker and easier public access to records.
Kelley, of the governor’s office, spoke of the importance of tracking requests and responses across government to determine where problems are arising.
Kelley also talked of the current case involving a public records request from VTDigger that turned into a lawsuit seeking documents related to the dismissal of Ed Adams, who had served as the superintendent of the Southern State Correctional Facility in Springfield.
Adams, who had previously been the subject of sexual harassment complaints, was removed from the position of the head of the prison and is currently a probation officer in White River Junction receiving nearly the same pay of $94,000 a year.
The governor’s administration had opposed releasing records related to Adams’ dismissal from his job as prison superintendent, but Michael Smith, the secretary of the Agency of Human Services, has recently said he would release them.
That has prompted the Vermont State Employees’ Association to jump into the case on behalf of Adams to block the records release.
“This is a scenario where we’re being sued for not disclosing, and we’re being sued for trying to disclose,” Kelley said. “This really illustrates the tension.”
The Vermont Supreme Court, in Rutland Herald v. City of Rutland, ruled that in responding to a public records request officials must conduct a balancing test in weighing a government employee’s privacy interests versus the public interest and the need for proper oversight.
In the Adams case, Kelley said, Smith, the head of AHS, determined that balancing test swayed in favor of the public interest after revelations had been raised late last year in a Seven Days expose about allegations of sexual harassment and drug use by corrections staff.
Colin Meyn, VTDigger’s managing editor and a moderator of the panel discussion, asked Clark if the Attorney General’s Office believed the public interest ever outweighed a state employee’s privacy rights.
“I think we have value in Vermont, of yeah, your personnel records are private and that’s that sort of sense of privacy that we have,” Clark said.
“What’s more important, the transparency of government, the accessibility of records and information, or this person’s, or any of our, personnel records and the privacy that we have?” she asked. “That’s the challenge.”
“We want to understand why he was demoted as superintendent of the state’s largest prison, which I think is different than, sort of, protecting personal privacy,” Meyn said to Clark.
“It’s a personnel record so I think that’s where the personal privacy is,” Clark responded. “I guess you and I just disagree.”
The event Tuesday night opened with Teachout, the professor at Vermont Law School and keynote speaker, tracing the history of access to government records in Vermont from colonial times to today.
Teachout also talked of the difficulty people seeking records from government today have navigating the more than 260 exemptions in the Vermont Public Records Act and spread throughout state statutes.
He spoke of the competing interests and tensions between those in power and those seeking to hold them accountable by finding out as much information as possible about their conduct and the actions they take.
“Government officials are not our rulers, they are our trustees, and our servants,” Teachout said, “and we have to find a way in this modern complex world to hold them accountable at all times for their decisions.”
Correction: A previous version of this article mischaracterized the Attorney General Office’s policy on inspecting public records. The office imposes charges when members of the public take an image of records they are inspecting, not for the inspection itself.
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