By Hilary Niles
Vermont’s annual Public Records Act legislative review (.pdf), now in its third year, may yield significant updates for all levels of government in 2014 — particularly in relation to open meetings.
Depending on how they shape up through the legislative process, proposed amendments could strengthen access to public policymaking.
Pending legislation (.pdf) includes a new penalty structure that would make violators liable for the cost of successful litigation. Legislators also are crafting language to modernize the law for digital platforms. And all references specific to news media as requesting parties are being replaced with “person” to reflect a broadened sensibility about the laws’ applications.
The penalty provision mirrors a recent update to the public records realm. Right now, the state’s open meeting law says nothing about attorney’s fees. The law’s current silence in this regard effectively relieves public bodies of full accountability; open meeting violations are predisposed to become like so many wrongs that don’t get righted simply for want of a plaintiff.
House Bill 497 would relieve a plaintiff of attorney’s fees if the party prevails in charges of willful open meeting violations. It also would expand the scope of who could be penalized, no longer limiting recourse to a public body itself. Someone acting “on behalf or at the behest of a public body” would be liable for intentional violations, too.
One of the keys to passage and successful implementation of this new penalty structure will be realistic protocols for the state’s many volunteer and part-time public bodies. The number of days officials will have to respond to a violation complaint, for example, likely will be hotly debated. An ambiguous provision requiring the public body to adopt measures “that actually prevent future violations” also poses a challenge.
Another set of provisions, at the request of the Vermont School Boards Association, would clarify what types of online communications constitute open meetings. Nicole Mace, general counsel for the association, said she fields all manner of questions from school board members unsure if they can even use email to prepare for a meeting.
Lawmakers so far have placed administrative tasks — such as scheduling, agenda-setting and distributing materials — outside the scope of the law. Several resisted the option to also exempt “collaborating on a shared document to be discussed at a meeting.” The act of drafting documents or policies, therefore, likely will fall within the public’s reach.
This means instead of emailing documents back and forth (emails otherwise subject to public records laws), public officials would have to collaborate more openly through an online portal such as Google Drive, which could both protect the document and allow for public visibility. If that’s the case, the public would have to be notified of the virtual “meeting.”
Exceptions will remain for executive sessions, including legal advice, which stands out for the varying interpretations being considered to define “pending” litigation.
A host of other tweaks comprise the 15-page bill, but one bit of semantic housekeeping also stands out.
Current statutes requiring public access are peppered with references to requesting parties as editors, publishers and news directors. Lawmakers are asking all such references to be replaced with “person.”
The new verbiage is both simple and meaningful. The essential right to know, after all, is a human right — not a professional privilege.
Hilary is a business and data reporter for The Vermont Digger.