VSEA’s Public Records Lawsuit Victory Hits The Papers!

“Essentially, [VSEA] got everything [it] asked for, and all the state’s arguments were summarily shut down,” [VSEA Associate General Counsel Abigail]Winters said.

Fress Press

Times Argus
Article published Apr 5, 2011
Judge rules in favor of union in records dispute
By Thatcher Moats
MONTPELIER — A civil court judge has ordered the state to pay more than $6,000 to the Vermont State Employees Association to cover the cost of a public records dispute that was resolved earlier this year.

Judge Geoffrey Crawford explained his decision to award legal fees to the VSEA by writing that the state’s attempt to charge the union $1,300 to view records was essentially baseless.

“The state’s position was not supported by the language of the statute, by its history or by subsequent case law,” Crawford wrote. “It represented a statement of what the administration wished the statute to say rather than what it actually says.”

The VSEA, a union that represents about 6,500 state workers, filed the public records lawsuit against the Agency of Natural Resources and the Department of Human Resources last summer after it attempted to inspect public records.

The union sought the records as it probed ANR’s elimination of a fish and wildlife scientist job and the state Department of Human Resources’ $120,000 purchase of computer software to monitor state employees’ online activity.

Vermont’s public records law allows agencies to charge fees when copying records, but the VSEA asked only to inspect the records and argued the state can’t charge for inspection.

Crawford, who upheld the union’s argument in January, wrote that the public benefit of the VSEA’s open records case was “modest but real” because it was the first time the question about fees for inspecting records was answered at the trial court level.

A bill the Legislature is considering, however, could strip Crawford’s decision of its broader significance.

The legislation, which is scheduled to be debated on the House floor this week, would revise state law to allow an agency to charge fees for inspecting records if it takes more than two hours to fulfill the request.

Abigail Winters, an attorney at VSEA who argued the union’s recent case against the state, has watched the legislation closely, and she said that revision could hurt the public’s ability to monitor the government.

“That’s a whole new statutory change,” Winters said, “and it’s one that hasn’t got a lot of attention but could have a huge impact on citizens’ ability to go in and look at what their governments are up to.”

In the VSEA’s case, Crawford wrote that the fees “were plainly a financial impediment placed in the way of persons seeking access to records.”

Rep. Donna Sweaney, chairwoman of the House Committee on Government Operations, said the new provision to charge for the inspection of records came from the Shumlin administration, and her committee decided to keep it in the bill.

Sweaney said there are other proposed reforms in the bill that would mean the inspection fees would not have a detrimental effect on open government. Among them is a requirement that agencies contact the person requesting the records, which could narrow the request, leading to less time and less cost, Sweaney said.

The proposed legislation also would make it more likely that plaintiffs could recoup attorneys’ fees in public records cases, Sweaney said.

Under existing law, judges “may” award fees when the plaintiff prevails, but the pending bill says that judges “shall” award the fees — a change that advocates for open government have fought for, arguing it could act as a deterrent against unwarranted denials of records.

Sweaney said this would act as a deterrent against an agency that might intentionally make fulfilling a records request time consuming.

“If you goof around with this and don’t keep good records, you’re going to be fined,” Sweaney said.

Sweaney also said her committee decided there needed to be a balance between open government and using taxpayer money to have public employees fulfill records requests.

Former Gov. James Douglas was in office when the dispute with the VSEA began, and the Vermont Attorney General’s office represented the state in the case.

Winters believes one reason Crawford awarded the union $5,400 in attorney’s fees and $626 for other costs is the state’s case was so weak.

“I think it’s rare in a public records case to have an agency with no reasonable basis for its position, and I think that’s part of the reason we got the award,” Winters said.

The VSEA has not yet seen the records at the heart of the court case because the attorney general’s office still has a chance to appeal the decision.

The assistant attorney general who represented the state declined to comment on Crawford’s decision but said the state may still appeal.

“Our comment would be that we are reviewing the decision and considering our options with respect to a possible appeal,” said Assistant Attorney General David Groff.