Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header

PLN editor quoted re public records law in Vermont

Burlington Free Press, Jan. 1, 2011.
PLN editor quoted re public records law in Vermont - Burlington Free Press 2011

Laws in other states help pry open government

11:28 AM, Mar. 28, 2011

MONTPELIER — When a reporter was shut out of a meeting between the New York state Comptroller’s Office and the Springwater Town Board over a financial audit, the editor of a Western New York weekly made an inquiry to the state’s Committee on Open Government.

Was he right that such a meeting should be open?

Indeed, came back the advice from Robert Freeman. The after-the-fact advice didn’t get the reporter into the meeting, but the newspaper wrote an editorial about it. In Freeman’s eyes, such efforts eventually force government officials to open their doors and open their records to the public.

“You find out it sinks in over the long term,“ said Freeman, who’s been handing out advice about open meetings and public records in New York state for 37 years.

Vermont has no such place for those who feel they’ve been shut out of government — whether at a meeting or in a search for public record — to turn. Some contend that it would help solve frustrations the public has over having no place other than the intimidating and expensive courts to turn to for help.

In Vermont, where the state has some of the nation’s weakest laws governing access to government, lawmakers are in the midst of considering two bills that seek to resolve some of the barriers. Most of the ideas on the table are in use in some state somewhere in the country.

No state has the whole solution when it comes to knocking down barriers to open government, say those who’ve looked at the landscape, but some states have put laws or offices into place that get at some of the concerns raised in Vermont.

In New York, it’s having someone like Freeman at the other end of the telephone.

In Florida, it’s having a law that says a court must require a municipality to pay legal fees if officials there have been proved to wrongly deny someone access to public records.

In Vermont, lawmakers have shied away from establishing an ombudsman’s office where the public and officials could turn for advice. Secretary of State Jim Condos said he favors having such an office, but lawmakers backed away out of fear that it would require new staff and cost money in a year when there is a scramble for every state dollar.

In New York state, with a population 15 times larger than Vermont’s, Freeman operates such an office. It has two people — him and an assistant director — and costs $350,000 a year.

“We cost taxpayers less than 2 cents per taxpayer per year,“ he said.

The aptly named Freeman has been New York state’s executive director of the Committee on Open Government since the office was created in 1974 as part of the state’s Freedom of Information Law.

Freeman recalls that an editor in Westchester County who had the ear of then-Gov. Malcolm Wilson persuaded the governor of the value of having an advisory body where the public and local officials could receive help deciphering access-to-government issues. Freeman has been handing out such advice ever since.

Freeman’s opinions don’t always send government officials scurrying to mend their ways. His office has been doing battle with the New York state Comptroller’s Office for years over access to meetings with local boards, but he noted, “People wouldn’t keep calling if the advice was ignored."

“He’s totally impartial, so he really has the respect of legislators,“ said Diane Kennedy, president of the New York Newspaper Publishers Association, which represents newspapers around the state. “It lends him an air of authority that local governments really listen to him."
Last year:

• Freeman’s office fielded 6,001 telephone inquiries. Of those, 38 percent were from local government officials, 32 percent from the public, 18 percent from the media, 9 percent from state agencies and 3 percent from state legislators, according to the organization’s December report to the governor and Legislature.

• The committee issued 572 written advisory opinions last year, the report says, the vast majority in response to questions from the public, as opposed to government officials or the media.

• The committee staff also gave 90 presentations around the state, many of them to groups of local government officials, an educational component Freeman considers key.

He argues that the office and the public access laws it helps people navigate actually save the state money. The New York Times used public records to reveal Medicaid abuses that were costing the state millions. The Albany Times-Union revealed millions in unpaid E-Z Pass bills through a single Freedom of Information Law request, he said.

Various states have some form of ombudsman’s office like Freeman’s, but he warned that some fell victim to political influence. How has he avoided that? “I’ve never been told directly what to do. If I was I would ignore it,“ he said. “A couple of secretaries of state have tried to exert their influence. They have failed. In one instance, all I had to do was call the governor’s office.”

A bill pending in the Vermont House would give some authority to the state archivist to answer questions from the public about records, but Archivist Gregory Sanford said it is unclear to him what that might involve.

Florida is one of 19 states with a law that says those who prevail in court after being denied public records shall have their court costs paid by the municipal entity that wrongly denied the records.

Paul Wright, editor of Brattleboro-based national publication Prison Legal News, routinely makes public records requests in states across the country. That single word — shall — makes a huge difference, he said.

It allows those pursuing records to push wary public workers without some confidence they won’t have to pay a lot of money, he said, plus it sends a strong message to government agencies not to deny access without a good reason.

“When agencies know they can and will be sued, they have an awareness," he said. “It’s really tough in states where even if you win, you’re not going to get paid. There’s absolutely no downside to their withholding stuff."

In Vermont, the law says court fees “may” be granted, but judges rarely do. Wright said that means there simply isn’t the fear that someone who is denied a public record will challenge it.

“They pretty much aren’t that forthcoming about disclosing records,“ he said of Vermont.

Vermont lawmakers who crafted legislation pending in the House have included language to require court fees to be paid for those who prevail, but with a caveat that a government entity would have 10 days to change its mind about refusing a document after it was sued. Lawmakers put that in because they were worried about potential costs to municipalities.

Beth Robinson, legal counsel for Gov. Peter Shumlin, said the governor would support language like Florida’s that says fees shall be paid, no caveats.

In Florida, the requirement that those who prevail are reimbursed their court costs is among the measures that puts teeth into the public records laws, said Jim Rhea, director of the Florida First Amendment Foundation. “It’s certainly a step in the right direction,“ he said.

Rhea has seen plenty of cases in which fees were ordered, and he has seen the impact it has on government officials. “Sometimes it just takes a few cases to get everybody on board,“ he said.

It is not, however, the cure for creating open government, he warned.

Other factors help, he said, including that access to public records and government meetings is a constitutional right. That means lawmakers can’t change the law at will.

Another law governing open meetings is an indication of how clear the state is on the issue, he said. No two members of a government board may even have a conversation in the street about an issue that’s before the board; such conversations must take place in public meetings. The state also has Rhea’s nonprofit organization fighting for open government and an open government office similar to New York’s, also staffed by two people, that helps run interference for those seeking information, Rhea said.

Even so, Rhea said, Florida has problems with open government. Like in Vermont, those seeking public records in Florida deal with inconsistent responses to public records requests. Sometimes those making requests are charged high fees for assembly of materials, sometimes not, Rhea said. No entity in state government is in charge of how records are kept to ensure they’re easily retrievable, he said, something Vermont recently addressed by putting the Secretary of State’s Office in charge of training.

Florida’s term limits cause frequent turnover in state government, which means a whole new set of officials come into office, Rhea said. Particularly those coming from a business background usually have little knowledge of public records and open meeting laws, he said. Rhea has been doing battle over open meetings with new Gov. Rick Scott — who was once a founder and CEO of Columbia/HCA.

"All of this is alien to him," Rhea said.

The Habeas Citebook Ineffective Counsel Side
Advertise here
The Habeas Citebook: Prosecutorial Misconduct Footer