Rutland Herald Editorial Expresses Reservations About Two-Hour PRR Limit

This sentence is incorrect however:

"Earlier this month, a state judge struck a blow for open government when he ruled that there was no basis in the law for the state to charge fees for records requests."

Actually, the State can charge to produce copies of material but cannot charge simply to view material. 

Article published Jan 18, 2011
Let the sun shine

The Shumlin administration has announced steps to improve transparency in government, and a bill will be introduced in the Vermont House to put those steps into action. But House members drafting the bill ought to make sure they don’t use their quest for greater transparency to create new obstacles to openness.

One of the important steps that the Legislature could take concerns legal fees in lawsuits by parties seeking access to public documents. Today when state or local government officials want to keep public records out of the hands of the public, there is nothing to force them to comply with the law except the prospect of a lawsuit. The cost of a lawsuit, however, is a daunting obstacle for a private citizen or members of the press, even if the law is on their side.

At present, the law says that a judge in a public records case “may” force the government to pay the plaintiffs’ legal fees if the plaintiff wins the case. In fact, it seldom happens. The new transparency law would say that if the government attempts to keep public documents secret and loses, the government “shall” pay the legal fees of those bringing suit. In this way, the potential cost of the case might discourage public officials from improperly denying access to public records. This is an important change that ought to be in the new transparency law.

At the same time, the Shumlin administration is proposing new fees on public records requests that could discourage transparency. Earlier this month, a state judge struck a blow for open government when he ruled that there was no basis in the law for the state to charge fees for records requests. Now Shumlin is proposing fees for requests that require more than two hours to comply with.

The two-hour rule would provide for 98 percent of public records requests free of fees, according to administration officials. Requests requiring more than two hours would incur fees, presumably aimed at fishing expeditions mounted by the occasional gadfly who requires officials to burn up dozens of hours scouring the record for documents.

The occasional gadfly notwithstanding, there may be legitimate requests from the press or the public that involve complex searches for documents. A bureaucrat uninterested in cooperating could easily string out his or her efforts beyond two hours, imposing unnecessary fees. It is questionable whether the annoying gadfly is a real cost consideration or whether the burden of his or her requests ought to be considered the cost of doing business as a democracy. If it can be shown that fees are necessary in some cases, then maybe the grace period should be extended from two hours to eight hours or 16, in order not to discourage legitimate requests.

The Shumlin plan would also require that each agency and department name public records officers whose job it would be to make sure the public has access to public documents. Shumlin also calls for an adjudicator within the secretary of state’s office who could rule on public records disputes. This adjudicator would provide an avenue of appeal short of the courts.

But for an adjudicator not to become a new obstacle to transparency, he or she must be required to act on public record disputes quickly — within five calendar days, for example.

It is also important that the new law apply to state and local governments alike. Many disputes that the public and press have about access to public records involve local governments — police departments, for example. Everyone needs to be reminded that government at all levels works for the public and that the public has the right to know what is being done in its name.

As legislators take up the question of transparency and accountability in government, they ought to remember that the presumption in the law is in favor of openness. It is only by making government accountable that the people can govern. Government officials have a natural bias against their own embarrassment, but the law has a bias in favor of disclosure. It is how democracy improves itself.