On November 20, 2019

Scott instructs agencies to change public records policy

Donovan digs in his heels

By Colin Meyn, VTDigger

Gov. Phil Scott issued a directive to state agency heads Wednesday, Nov, 13, allowing members of the public to use personal devices to replicate government records during inspection at no charge.

The governor had previously issued the same advice informally. On Nov. 13, his secretary of administration, Susanne Young, sent out a formal memo explaining the directive.

Young said the Vermont Supreme Court’s Sept. 13 decision in Reed Doyle v. City of Burlington Police Department gave the administration no choice but to mandate that state agencies allow photographs during the records inspection process.

“The Court acknowledged that although staff time was required to prepare the records in question for inspection, the Court determined the law is clear: charges associated with staff time in complying with a request to inspect are not authorized,” Young wrote.

“Since no staff time or other State resources are required when a person makes a copy of a record with a personal device, such as a cellphone or camera, there is no justification for charging a fee in order to recover costs. This is now the law and we must modify our practices and procedures accordingly,” she wrote.

The governor’s decision dovetails with the opinions of First Amendment advocates, the Vermont chapter of the American Civil Liberties Union and Secretary of State Jim Condos.

Vermont Attorney General TJ Donovan takes the opposite view. While Donovan concedes that public inspection of records must be free, he says copying those records — even if it’s done using the requester’s personal device — triggers the same charges that would be incurred if the state were making the copies.

Members of the public who inspect records at the Attorney General’s office are provided with a new protocol: “You may inspect records free of charge. Copying records will incur applicable charges. To copy shall mean the use of scanning devices, thumb drives, cameras, or cell phones during inspection.”

VTDigger, through an attorney, sent a letter to the Attorney General’s office last month arguing that the policy was illegal, and requesting it “cease imposing such charges immediately.”

“An agency may not charge someone who has not submitted a ‘request for a copy,’” wrote Stephen Coteus, who represents VTDigger from the Montpelier law firm Tarrant, Gillies & Richardson. “The fact that a requester who is inspecting records captures a lasting image of the record — with his own device, at his own cost and burden — does not somehow mean that he has requested a copy from the agency.”

On Oct. 24, Donovan followed up on the letter with a call to Dan Richardson, a senior partner at the firm, suggesting a meeting to work out a legislative fix that would shield the Attorney General’s Office from voluminous requests from for-profit entities. VTDigger editors asked Donovan to contact the news organization directly about a potential fix. He has not yet responded to the organization’s request.

In an interview Friday, Nov. 15, about Scott’s directive, Donovan confirmed that his office has not changed its policy. “If there’s a disagreement, that’s fine, let’s go to the Legislature to get clarity,” the attorney general said.

Last month, in response to criticism of the AG’s policy, Donovan wrote an op-ed outlining his concern that allowing photographing of records would require an agency to devote significant staff time and resources to preparing records without any way to recoup costs.

“This is also time that my team could be spending on protecting consumers, addressing the opioid epidemic, advocating for civil rights, and ensuring that we have access to clean water and clean air,” he wrote.

“There is a cost to Vermonters associated with diverting attorney time and resources from my office’s mission.”

Moreover, he wrote, “Most of the requests for records possessed by the Attorney General’s Office are from private law firms and companies.”

VTDigger found that claim to be “mostly false” in a fact check article, in part because the AG was counting nonprofits and a university law school as “private law firms and companies.”

Donovan and Condos have both come out in support of creating a public records ombudsman office in state government to ensure that public records policies are enforced properly and consistently across agencies. Scott opposes the idea, arguing that it’s an unnecessary bureaucratic burden.

“I think we can handle this in-house,” Scott said at a press conference last month. “I don’t know why we would need a whole new office to do this.”

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