The following blog post is one of six that the New England First Amendment Coalition will publish during Sunshine Week, highlighting the need for government transparency and addressing freedom of information concerns throughout the New England states. When posted, these articles can be read here.
By Jim Condos
Vermont Secretary of State
Sunshine Week, which is now being celebrated nationwide, is about opening the blinds and letting the sun shine in on government.
Who can argue against open and transparent government? It can mean different things to different people. Arguments can be clouded with misinterpretations of the law, personal interests, and other factors. It also is easier to make decisions when nobody is watching.
The vast majority of our elected state and local officials are trustworthy, dedicated and passionate individuals who want to do the right thing. However, corruption can exist. In small doses corruption can be just as corrosive to our democracy as any prominent scandal, undermining the public’s trust.
There are always cases in the news where the public and elected officials have clashed on their interpretation of laws covering public meetings and/or public records. Sometimes one side is clearly right and the other side is clearly wrong. Sometimes there is gray area in the law that is open for interpretation.
But even with these gray areas, Vermont’s constitution and state statutes have always been clear in their fundamental intent: Vermont’s public officials are accountable to the people. From the Vermont Constitution, Chapter 1, Article 6:
That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.
This is the very basis of public office — elected officials represent the people and are accountable to the people.
However, just in case there was any confusion over the intent of Article 6, here’s what the Vermont Open Meeting Law (1 V.S.A. § 311(a)) policy statement says:
In enacting this subchapter, the legislature finds and declares that public commissions, boards and councils and other public agencies in this state exist to aid in the conduct of the people’s business and are accountable to them pursuant to Chapter I, Article VI of the Vermont constitution.
How can the people hold public officials accountable if the people are not privy to the actions of those they elect? Sunshine Week should be every week. Simply, illegal meetings and improperly withheld public records offend our notions of openness, accountability, and the core of our democracy. To help emphasize this point, Vermont’s Open Meeting Law recognizes that the media and the public are one and the same; and they are entitled to:
- Attend properly warned public meetings
- The posting of an agenda 48 hours prior to a regular meeting
- Tape or record public meetings
- A reasonable opportunity to express their opinion on matters considered by the public body during the meeting
- Know a public body is going into executive session for a permissible reason
- The posting and availability of minutes five days after the meeting — even if in draft form
Let’s continue this journey, that all public bodies conduct the business of the people and are, thus, accountable to the people. Again, from the Vermont statutes (1 V.S.A. § 315), the Access to Public Records policy statement says:
It is the policy of this subchapter to provide for free and open examination of records consistent with Chapter I, Article 6 of the Vermont Constitution. Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment.
These excerpts support a mandate on government (state and local) transparency so the people of Vermont know what is happening in their government. The only time the people lose their “right to know” is when greater harm to an individual or the state could come from releasing certain information. However, in these very rare cases, the burden of proof for withholding this information is on the state and the exemption must be laid out in statute.
Regarding access to public records, 1 V.S.A. § 317(b) defines a public record as “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.” The courts have upheld the notion that the public’s access to records “shall be liberally construed to implement this policy, and the burden of proof shall be on the public agency to sustain its action.” This means that if that which is being disputed falls in a gray area, the courts will likely fall on the side of disclosure.
My long understanding about the need for open government began while attending schools in Vermont and is based in part on 18 years on the South Burlington City Council, six years on the Vermont League of Cities and Towns Board, eight years in the Vermont Senate, and five-plus years as Vermont’s secretary of state. I’ve also learned from U.S. Sen. Patrick Leahy (D-Vt.) about the importance of our sunshine laws.
Open Government just makes good sense for officials and the people they serve.
When I first ran for Vermont secretary of state, a major plank and even the t-shirts for my campaign said, “Open Government is Good Government!” So, to any public officials reading this: Please think twice about what you “text,” “tweet” or “email” a fellow board member or constituent. Those messages can all constitute government work and can be classified public records. And to the public, in Vermont, you do have a right to know!
Let the sun shine in and let’s restore our faith in government.
Jim is Vermont’s 38th secretary of state and has served since January 2011.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Providence Journal Charitable Legacy Fund, The Boston Globe and Boston University.