Unfortunately, Gov. Peter Shumlin is playing such a game with the current effort to change “may” to “shall” in the state’s public records/public access law. Last week, Beth Robinson, his legal counsel, said the administration was leaning toward a “shall, unless...”
Most states have a “Public Right To Know” law or a “Sunshine” law and just about all the laws in the other 49 states are better than Vermont’s. The public’s right to know should be pretty straightforward. People should have a right to know what that government is doing. Unfortunately, Vermont’s law concerning the public’s right to know lacks clear definitions, does not have built-in accountability, does not require the government to enforce it and does not have meaningful penalties. Vermont’s law was first passed in the mid-1970s. Since then, changes have been made and exemptions to having to follow it have been added – there are now in the neighborhood of 260. The law is seldom taken to court so there is minimal case law clarifying it and efforts to make it more people friendly have been beaten back. One reason there is little case law is because the cost of challenging the denial of a public record or access to a public meeting must be shouldered by a person seeking a record or who was shut out of a meeting.
The state’s public records/access law appears to be the only law on the books the state is not required to enforce. So, even though the state stepped in at least four times in the past couple of weeks to investigate alleged violations of the law by police and has stepped in numerous times in the past year or so to investigate and prosecute public officials for misdeeds, the state will not investigate and prosecute alleged violations of the right to know law.
The Legislature is looking at bills to amend the law this session. The House version was introduced at the request of the governor in January on the heels of pledges he made during his campaign to open up government and make it transparent. The bill calls for the creation of a position in the office of the secretary of state to address disputes over citizen access to public records. The bill also states a court shall award court and attorney’s fees to a citizen if the court orders the release of a public record that has been denied.
Last week, the governor and his legal counsel pulled out some shells and put “shall” underneath one of them. They said they now think the bill should state that the court may not be required to grant court and attorney’s fees if it is shown the denial of a public record or access was made in good faith, or because the holder of the public trust thought the law was clear, or the request was made for commercial gain, or no substantial public benefit would result from the court’s ruling. They leave it up to the judge -- not the law -- to define what all that means.
Vermont citizens deserve a sunshine law that has clear definitions, accountability, enforcement and penalties. One might think the governor would agree. So long as the governor pedals backward on his own bill, while claiming he is for transparency, Vermont citizens won’t get a law that increases transparency. Why did the governor, all of a sudden, put shall under a shell? Citizens might ask him what game he is playing.
Connelly is editor and co-publisher of the Hardwick Gazette and is a past president of both the New England Press Association and the Vermont Press Association.
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