Representing Chittenden 7-4 District in the VT House
July 20, 2017
Vermont Title 1, Chapter 5, Subchapter 3 (1VSA sections 315-320) has been much in the news. This statute is commonly known as the Public Records Act (PRA) and is within the jurisdiction of my committee, House Government Operations.
The PRA became most recently “newsworthy” because of a request from the Presidential Advisory Commission on Election Integrity. They are seeking personal information on registered voters from all states and the District of Columbia. Another relatively recent “newsworthy” request focused on documents and communications related to EB5. This is the federal program through which foreign investors obtain permanent U.S. residency if they invest $500,000 in a rural job-creating enterprise, among other requirements. It is now synonymous in Vermont with alleged fraud in the hundreds-of-million-dollars range. Think “Jay Peak, Newport, Burke Mountain.” “Newsworthy” or not, PRA requests cover the spectrum. Just a few additional examples are protection of the Vernon black gum swamp, missing money in Coventry, campaign finance improprieties, conflicts of interest, law enforcement activity, and so on and so forth. I myself was on the receiving end of a PRA request in the context of the Orange County contested election which ended up in my legislative committee.
So, what exactly does this law “do”?
The PRA begins with this statement: “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. Consistent with these principles, the General Assembly hereby declares that certain public records shall be made available to any person as hereinafter provided….”
The law continues by clarifying to whom this language applies: “[A]ny agency, board, department, commission, committee, branch, instrumentality, or authority of the state or any agency, board, committee, department, branch, instrumentality, commission, or authority of any political subdivision of the state” must provide access to public records for inspection and copying unless the records are exempt by law from public access.
Key words here are “certain public records” and “unless the records are exempt by law from public access.” The PRA cites forty categories of exemptions. These include, as examples, personal documents relating to an individual, investigations, trade secrets, tax records, information identifying a whistleblower, State-controlled database structures and application codes, patient medical information, and deliberations of any public agency acting in a judicial or quasi-judicial capacity. Also included among the forty is an exemption relating to voter information: A voter’s day and month of birth, driver’s license or non-driver ID number, email address, and the last 4 digits of the social security number are exempt from public access. It is this language which prohibits our Secretary of State from complying with the entirety of the request from the Presidential Commission on Election Integrity. It merits mention here that PRA amendments to further “tighten” protection of voters’ privacy will likely be proposed when the Legislature is back in session in January.
What happens, as often happens, when a PRA request is denied? There is an appeal process outlined in the law and it involves going to agency heads and ultimately applying to Superior Court (1VSA section 318-319). This can be very expensive, in terms of both human and financial resources. It is the rare individual or organization with the necessary “horsepower.” Add to the expense the frustration when, at any point in the process, the requested information may be forthcoming… but any real information has been redacted, and partial to entire pages are blank. This state of affairs will likely lead to a legislative proposal in January for the creation of a PRA ombudsman to facilitate the balance of the right to privacy and the public right to know. Legitimate transparency is the goal, not obfuscation.
If you would like to talk about this or any other legislative issue, please do not be shy. Contact me by email at firstname.lastname@example.org, by phone at 802-862-7404, at my home at 232 Patchen Road, on the street, or at Trader Duke’s from 8:30 to 9:30 on Saturday mornings.