NEFAC Prepared Remarks on Vermont Public Records Inspection Fees

The following are prepared remarks by NEFAC’s Michael Donoghue for the Jan. 16, 2020, hearing on charging fees for the inspection of public records in Vermont. Donoghue provided these comments as a representative for both NEFAC and the Vermont Press Association.

Madame Chair and members of the Senate Government Operations Committee, good afternoon.

My name is Mike Donoghue, the executive director of the Vermont Press Association, which represents the interests of the 11 daily and roughly four dozen non-daily newspapers that circulate and cover news in your communities and Vermont.

I am also here today in my capacity as the First Vice President of the New England First Amendment Coalition – a six-state effort by journalists, academics, librarians, lawyers and just regular citizens trying to ensure protections of the five freedoms covered under the First Amendment.

As some of you know I spent 47 years as a writer at the Burlington Free Press, beginning my senior year in high school in sports. These past few years in retirement some media outlets have asked me to pitch in to cover some stories as needed. I have always had a love and the belief that the public has the right to know the truth.

Before I go on — the VPA would like to thank the Senate Government Operations Committee for its monumental work through the years on the vital issues of public records, open meetings, government transparency. We are a better state because of your work.

As some longtime members may remember, Vermont for many years often earned a grade of “F” among the 50 states in various national studies concerning transparency and open government.

It was the hard work of this committee and your colleagues over in the Senate that helped move that grade up to a passing level. I still hope that at some point Vermont can make it into the top three to five states for transparency. Why not shoot to be number one in transparency?

The Press Association is here today to continue to offer our help as you may consider any new legislation including upholding the recent Vermont Supreme Court decision about free inspection of records.

Since that decision in September, Democrats led by Secretary of State Condos and Republicans led by Gov. Scott, and others have all made it clear that free inspection should continue to be the law of Vermont. Pretty much everybody agrees.

Unfortunately Attorney General T.J. Donovan has said he wants to institute a “Pay to Play” or “Pay to Read” government system by charging taxpayers to have access to the daily operations of state and local government.

This is really about the cost of doing business for government.

The Vermont legislature as a governing entity has always been open to the public. The copies of your printed bills, the committee hearings that you host, the debates that are heard on the floor – they are all in the open. The cost comes under the annual budget for the legislature to ensure transparency.

In my various discussions with Attorney General Donovan, he often cites some law firms are asking for records that might be used to sue the state. As I believe Secretary of State Jim Condos noted in his testimony, the Vermont law is clear that why somebody might want to see a public record is never relevant. The law also makes it irrelevant as to who is asking for it.

But here is the reality:

If that law firm just files suit against the state of Vermont without getting those records then all those requested public records will have to be turned over eventually by the state of Vermont eventually through the pre-trial process known as discovery. Either provide them now or later. And that release of hard copies during discovery by the state will be at no charge.

Yet there are several benefits to full transparency: By giving the public records early to a requestor, the state of Vermont may actually save its taxpayers considerable money in the long run. The law firm may realize that its possible legal claim is unworthy and no lawsuit will be filed against the state.

Or that inquiring law firm might realize what was thought to be a potential multi-million dollar judgment against the state of Vermont is really worth only a small fraction. In that case a proper settlement can be reached early without the time and full expense of preparing a case – and the time and expense on judges, staffs and courtrooms.

The “Pay to Play” or “Pay to Read” model in government goes against all transparency traditions in Vermont.

Does your local library charge residents to come in and read the morning paper, pull out a historic book, or magazine? No. It is covered by the annual library budget.

Why should taxpayers get charged to read minutes of government meetings, or letters to the town boards, or review the legal bills submitted to the town?

Once you start charging to read public records, you have to wonder if charging the public to attend public meetings is far behind.

The legislature, the media and others should be encouraging all Vermonters to get more involved in their government. Yes, it can be a pain to have people looking over the shoulder of government leaders, but that was how this country was set up.

We all know the opposite is much, much worse and that’s why this country and state was founded.

In closing:

As the issue of free inspection goes forward, you can clearly expect those opposed to open government will invoke the “Sky Will Fall” argument if changes are not made to the current law and make things more secretive.

That same old tired argument has been invoked several times in the past on public records by people against transparency. I will just give two quick examples that disprove the claim.

Several years ago there was a push to ensure public records were available at actual cost to taxpayers. The legislature found that depending on the town and the office, copies of public records cost taxpayers between zero and one dollar a page. Some towns were using excessive charges to help pay for its municipal or school government. In some cases town clerks were able to keep the fees they charged.

This committee helped pass the actual cost law and the current fee for photocopies is five cents each. Government is not losing money. And the sky never fell in that case.

More recently your committee helped craft a bill that allows people seeking public records to recover their legal fees if they have to file a lawsuit and the judge determines the public records were improperly withheld by government.

Again the Attorney General and others predicted the sky would fall. It hasn’t. Your legislation has actually made government leaders more accountable and responsive in most cases because they know it is the law.

Thank you for your time and the VPA stands ready again this year to assist your committee on any open government / transparency issues and the impact on Vermonters.