"Winters said there is no guarantee – in spite of the fact that she won – that the court will award her attorneys’ fees."
As the public records requests turn …
As you may recall, Abigail Winters, a lawyer representing the Vermont State Employees Association, recently won a victory against the State of Vermont in court. VSEA sued the Douglas administration over budget documents pertaining to a layoff in the Agency of Natural Resources and a computer program designed to monitor state employee use of the Internet known as Marshall86.
Winters won the right to view records that the state said she should pay $1,300 to see.
Winters hasn’t seen the state documents yet because the Attorney General’s office is considering whether to appeal in the next several weeks.
Though she won her day in court, the battle isn’t over. Winters hasn’t seen the state documents yet because the Attorney General’s office is considering whether to appeal in the next several weeks.
Meanwhile, Winters had to meet a court-ordered deadline for filing a motion asking the state to pay her fees and costs. The 15-page motion includes information about the pay rates of other lawyers, a lengthy breakdown of her hours spent on the case and a rundown of the 2001 Burlington Free Press vs. UVM case in which the court considered “relevant factors” when it refused to allow the newspaper to obtain its legal costs – even though it won the right to review university documents. It’s this case public records advocates point to as the watershed event in the world of open government because it effectively silenced the press and others who are now obliged to sue the state or other public entities to see records that courts rule should be in the public domain anyway.
Winters said there is no guarantee – in spite of the fact that she won – that the court will award her attorneys’ fees.
“I could get denied because I don’t bill on an hourly basis or because I represent union members,” Winters said. “There are a lot of ways we could lose on fees.”
She expects the AG’s office to file a counter brief. The last time she asked for reimbursement for fees from the court system in 2008, she “got half the time I requested” and her rates were discounted.
Winters said: “We want to win (the fees) and send that message to the state.”
She sees the state’s ongoing willful delay of access to the records as the ultimate victory: “So much time has passed that the people who made the decisions aren’t in those positions any more. These two issues were hot topics this summer, and now there is not as much interest because it involves the old administration now. In a lot of ways I do feel they’ve already won.”
There are no consequences for denying the public access to state documents, Winters said, and she doesn’t put much faith in the new legislation under consideration in the House Government Operations Committee, which presumes that courts would award fees. Public records advocates say the presumptive language won’t guarantee those awards; only the verb “shall” would force the government to pay.
“What would stop a future agency or municipality from doing the same thing if there wasn’t some fear of attorneys’ fees or financial punishment or consequence?” Winters said.
Winters argues in her motion filed with the court that her case “pertains to the fundamental right of all Vermonters to freely inspect public documents” and in particular the right to review the expenditure of taxpayer money.
So just how many of these pesky requests does the state receive in a given year? In a report to the Legislature, the Agency of Administration says there were 1,941 requests in 2010; 1,748 in 2009 and 1,593 in 2008. The average time fulfilling those requests was about 38 minutes. Sixty-five percent of those letters asked for public documents from one department: Public Safety.
In all, state employees put in 1,217 hours to produce 22,500 pages of documents. The price tag? $21,277.
The data, however, is not complete. Jeb Spaulding, secretary of the Agency, said the report doesn’t include all agencies and departments. He said he is working to improve access across state government.
Gregory Sanford, the State Archivist, will be working with the Shumlin administration on its employee education effort and improved records management. Whether or not a record is public should be determined at the point of origination he said. In the digital world that means tagging the information properly so that it can be easily identified.
Sanford, who is pushing for improved management of records, said: “One of things that bothers me about current the debate is that the very positive aspects and potential value of records is being subsumed by a focus on the idea that government has become secret — hiding records from the public. We’re not consciously doing it’s just that they haven’t managed them well enough.”