OpEd: Public records should be free for inspection
Vermonters shouldn't have to pay for access to their government's public records. Government transparency is far too important to be revoked by government agencies when they feel inconvenienced.
Generous access to public records is rooted in the Vermont Constitution, and comes from Vermont statutes:
"It is the policy of this subchapter to provide for free and open examination of records consistent with Chapter I, Article 6 of the Vermont Constitution. Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment. All people, however, have a right to privacy in their personal and economic pursuits, which ought to be protected unless specific information is needed to review the action of a governmental officer." 1 V.S.A. 315(a).
Under Vermont's Public Records Act, government must provide the public with access to its records unless those records are protected from disclosure by the specific exemptions in the Act.
I was disappointed to hear that the Vermont Attorney General's office has adopted a policy of charging members of the public to take photographs, with their own devices, of the public records they are inspecting. I believe that the law is crystal clear; this interpretation is not only wrong, it reduces transparency, and places undue burdens on Vermonters.
Judge Crawford's 2011 Superior Court decision in Vermont State Employees' Association v. Vermont Agency of Natural Resources, found that while there may be burdens in making a public records available for inspection, those burdens fall to government, not to the members of the public seeking access to those records.
This premise was affirmed by the Vermont Supreme Court in Doyle v. Burlington, where the Court once again sided with the people. While government agencies can seek to recoup the actual costs they incur if someone requests a copy of a record, there's a clear difference between 'copying' and 'inspection,' and the cost to prepare a record for inspection must be borne by the agency.
Even when a copy is taken, the charge must be for the actual cost of the copy and not some other charge that impedes access. If a member of the public snaps a photo of a record they're inspecting with their smart phone, what's the cost to the agency? There is none.
Under state law, setting the uniform schedule of public record charges for state agencies is under the authority of the Secretary of State in consultation with the Secretary of Administration. We must use the actual cost rule and state agencies may not legally calculate cost to a member of the public if they did not request a copy, and an employee did not physically make a copy in response.
My office would never consider charging someone to inspect or photograph a public record. The Vermont Judiciary has language in an administrative directive stating "when a customer elects to photograph court documents using a telephone or other photographic device, the customer shall be allowed to do so with no cost incurred."
Serving the public isn't always easy, nor is responding to voluminous and sometimes complicated record requests, but we must always remember that everything we do in government is in service to the public; the records we create belong to the people. I shouldn't have to say it, but that also includes the media, which plays a critical role informing the public, and holding our government accountable.
I believe the Courts have been clear: while it may be inconvenient, a government agency cannot charge the requestor of a public record for the time, or cost, incurred to prepare the record for inspection.
The premise of Vermont's Public Records Act is to ensure that the public is granted the transparency and access they're entitled to. Unfortunately, all too often government agencies adopt a 'deny first' mentality, or place burdensome roadblocks in place, requiring Vermonters to lawyer up and sue just to get the records they should have been granted in the first place.
Vermonters deserve better.
It's time for our government agencies to step-up, and take the responsibility of transparency seriously. For this reason, I have long called for the creation of an independent public records ombudsperson, who could act as a liaison between the public and the government; helping agencies be compliant with the law, while ensuring Vermonters have the access they're legally entitled to, preventing costly and unnecessary lawsuits.
We can, and must, do better. With trust in government at an all-time low, transparency is our best disinfectant. Also, it's the law. It's time to throw open the doors of government, and let the sun shine in!
Jim Condos is the Vermont Secretary of State.
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