(Last updated September 25, 2023)
Where can the law be found? The law governing Vermont’s public records is the Public Records Act (PRA). It can be found here under subchapter 3. Enacted in the 1970s, the PRA provides guidelines for what constitutes public records, who has access to these records, how one can access them, and what remedies are available should the public’s right of access be denied.
Who enforces the law? According to section 319, to gain access in accordance with the PRA if denied by a public agency, a requester must go to court. Specifically, the requester must file a complaint with the Civil Division of the Superior Court in the county he or she resides, has a business, or where the requested public record is located. Requesters can also filed a lawsuit in Washington County Superior Court, regardless of where they live. However, there is no public record ombudsman as is common in other states. There is also no enforcement by the state’s Attorney General. The Secretary of Administration does maintain a database containing the Statewide Requests for Public Records which can be accessed here.
What is considered a public record? Broadly, a public record is anything that is produced or acquired “in the course of public agency business” regardless of its physical form. In accordance with section 317(b) of the PRA, this includes text messages, emails, and social media posts even if they are located on private devices or accounts.
What records are exempt from the law? Section 317(c) of the PRA states that certain records otherwise thought to be public are exempt from copying or inspection. The list itself is extensive and should be consulted here. Section 317(c)(1) says that laws aside from the PRA can also designate records as exempt from disclosure, making them confidential despite their exclusion from the list. As a result, someone looking to see if the record they seek is available would have to look beyond the specific public records exemptions provision. The Vermont Attorney General has a running list of statutory exemptions which can be accessed here. Per section 317(e), all exemptions enacted after 2019 are automatically repealed after five years unless reenacted or stated otherwise in the law.
What records are covered by the law? The PRA in essence applies to all public agencies and their employees. Broadly, this includes any state and local agency, branch, department, instrumentality, commission, or authority of any political subdivision of the state. This would include public bodies like police departments and a state agency’s human resources department. The state’s executive and legislative branches are subject to the PRA. The Vermont Judiciary, however, aside from administrative records, is not. In some cases, private entities performing certain government functions under contract with a political subdivision may be considered an “instrumentality” of that political subdivision, and thus be a public agency covered by the PRA. See Human Rights Defense Center v. Correct Care Solutions, 263 A.3d 1260 (Vt. 2021).
What is the request procedure? The procedure for journalists or any other member of the public to gain access to public records is outlined in section 318 of the PRA. Broadly, a public agency possessing the requested records has no more than three business days from the time a request is received to respond. Once requested, the custodian of the public record must produce it within that period. If they cannot do so within that time frame because the record is in active use or in storage, they must notify the requester in writing and set a time for production within one week of the request. If the record is exempt, the custodian has three days to notify the requester in writing with the reasons for its exemption. The same standard applies to records that do not exist. This timeline can, in “unusual circumstances” as defined here, be extended to 10 business days. If the requester needs accommodations for a disability, the public agency must honor it unless they can prove that it would unduly burden the agency financially or administratively.
What are the fees? In Vermont, the legislature has permitted public agencies to charge fees for costs incurred due to their adherence to the PRA. Agencies are not, however, permitted to charge for time spent complying with a request to inspect records rather than obtaining copies of them. The fees are set by the Secretary of State using a uniform schedule. Those wishing to obtain copies of documents can be charged for the copying costs. There is no charge for the time spent by the producer of the document unless it takes longer than 30 minutes of work to produce it or they agree to comply with a request that is in a nonstandard format. The exact amount to be charged can be found on the Vermont State Archives & Records Administration website.
Can members of the public take photos of records without being charged? While the public records law does not address this question explicitly, Gov. Phil Scott directed all state agencies in 2019 to allow personal devices to be used to copy government records during inspection at no charge. His administration pointed to a state Supreme Court decision earlier that year that it believed required agencies to allow photographs. Then-Secretary of State Jim Condos agreed with the position, saying that “the law is crystal clear.” Despite most if not all other government offices allowing photographs, however, former Attorney General T.J. Donovan disagreed with the law’s interpretation and continued charging members of the public for taking pictures during his time in office.
What is the appeals process? If denied by the custodian of public records, the requester can appeal to the head of the agency that holds the requested record. Pursuant to section 318(c), the agency head must make a determination in writing within five business days of receiving the appeal from the requester. If the decision by the custodian is reversed, the public record must be supplied. If not, the requester can make an appeal to the Civil Division of the Superior Court. If an appeal is denied in the Superior Court, the judgment can be then be appealed up to the state’s Supreme Court. A notice of appeal to the Supreme Court must be filed within 30 days of the entry of judgment in the case, which can be weeks or longer after the relevant opinion is issued.