ACLU Legislative End-of-Session Update -- May 8, 2008
The American Civil Liberties Union of Vermont provides periodic updates during the legislative session on bills with civil liberties implications under review by lawmakers.
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The 2007-2008 biennial legislative session ended last week in worries about the state budget. But while attention was focused on economic issues, a number of other bills with civil liberties implications blipped along just beneath the media radar.
A number of bills had to do with individual privacy rights, and the concomitant issue of access to public records. Sorting out the lines of what’s private and what’s public has become increasingly difficult in a digital age full of security threats, perceived or real, and linked data systems.
Before we turn to privacy and access issues, we want to mention a “shadow” issue in a major bill that emerged at the end of the session. It has important long-range implications.
The bill (H. 859) was prison reorganization, and the shadow issue was how exactly the savings anticipated in the bill will be achieved. The bill had a lofty title -- “An Act Relating To Increasing Substance Abuse Treatment, Vocational Training, And Transitional Housing For Offenders In Order To Reduce Recidivism, Increase Public Safety, And Reduce Corrections Costs.” Behind the title is the reality that legislators ordered the closing of one prison -- the Dale facility for women in Waterbury -- and the revamping of several others, most notably the St. Albans prison. St. Albans has been the state’s high-security facility, and now it’s slated to become a prison for women.
The reconfiguration results in a loss of prison beds -- a key number for the Department of Corrections, because capacity and the number of prisoners in the system are what drive costs, a great concern of legislators who pushed this bill. But in a bizarre inversion of what lack of capacity usually means (costs go up), in the Vermont prison system, lack of capacity saves money. That’s because lack of Vermont capacity means Vermont prisoners are sent out-of-state to private prisons run by the Corrections Corporation of America. And because these prisons are cheaper per bed than Vermont prisons, each out-of-state placement saves the state about $10,000.
What this means is that some of the savings lawmakers promise H. 859 will bring will actually come from sending more prisoners out-of-state -- not (at least, at first) getting them out of jail faster because of better treatment programs.. Initially about 50 Vermont prisoners will be sent to CCA jails, for an immediate savings of $.5 million. The hope is that as treatment, training, and housing programs for offenders kick in, offenders will be successfully rehabilitated and released, spots will be freed up in Vermont jails, and the overall prison population will go down. We can all hope this happens.
But meanwhile, Vermont has turned a corner towards more out-sourcing of Vermont prisoners to private jailors. This is a trend that’s building all across the country, as documented in a new book, Prison Profiteers, by Prison Legal News editor Paul Wright. Prisons are a booming industry in this country. One out of every 137 Americans is locked up -- 2.3 million people. The price tag for this is $185 billion annually. Jail capacity is stretched beyond the tolerable, and corrections budgets have mushroomed. Given this situation, private companies are betting that the trend to outsourcing will continue. The ACLU opposes out-of-state placement of offenders. We believe sending Vermont inmates nearly a thousand miles to Kentucky doesn’t help in rehabilitation, the goal of our corrections system. Successful rehabilitation depends on an offender’s successful re-integration to society. When a Vermont inmate is in Kentucky, that re-integration is hampered. We’ll be keeping a close eye on inmate outsourcing as the prison reorganization plan moves forward.
A final irony on prison capacity and outsourcing. Legislators complain about how prison costs have gone up because of the greater number of people sent to jail and serving longer sentences. But in at least three bills this year, legislators lengthened prison sentences for certain offenses. At some point, legislators will have to face the fact that although the number of offenders may be rising, the lengthening of sentences has the same effect of raising the prison population.
A small victory was achieved over the Department of Corrections when legislators, during the last week of the session, rejected the department’s proposal to charge prisoners a $5 co-pay for seeing a doctor. The main purpose of this DOC proposal was to cut down on what the DOC claims is over-utilization of prison medical services. The co-pays would have raised only a minor amount of revenue from a population that generally doesn’t have much money. But as we and other advocates argued, you really don’t want to discourage inmates from seeing a doctor. A prison can be a breeding ground for quick-spreading diseases, such as MSR. It’s much cheaper to fight these diseases quickly rather than let them spread -- which can result if prisoners don’t ask for and get prompt medical attention.
Privacy Issues. Every year it seems that there are more and more bills that deal with privacy. I counted at least a half dozen this year that we followed.
- Education property tax prebate/rebate tax credit confidentiality. This issue has been popping up (and down) for more than a year. The Legislature promised it would deal with it this session, but in the end, it didn’t. The House had proposed in its Miscellaneous Tax Amendments bill (H. 888) that the credit information be public. We have argued that the credit information should be confidential. The credit amount is based on income tax information, and family income can be revealed by doing a “reverse calculation” (using even the state Tax Department’s own online prebate/rebate calculator). We argued before the Senate Finance Committee that the House had taken the wrong approach to addressing the issue. In the end, our view prevailed. It’s hard to know what’s now ahead on this issue. It’s possible that the only thing that will settle things is a lawsuit, which we were close to filing last year until town clerks who had released information reversed their positions. The House’s action seems to suggest that it felt prebate/rebate information is, under current statute, confidential. Why else pass a law to make it public?
- Confidentiality of library patron records (S. 220). Vermont will join 40 other states with a law protecting the records of the books that people check out of libraries. Only a court order can give police access to the records. The “freedom to read” is a central tenet for librarians. They believe strongly that no one should be able to snoop around to see what you’re reading, or what you’re accessing on a library’s Internet computers. This freedom was compromised by provisions of the federal PATRIOT Act, but now at least state protections are in place. The one compromise made during legislative scrutiny of S. 220 was granting parents the right to access their children’s library records, if the child is under 16.
- Prescription drug record privacy (H. 750). The House modified a law passed last year to try to make it less susceptible to successful challenge by drug companies and data miners who want the information for marketing purposes. The identity of individual patients is suppressed when drugstores turn over their records to “pharmacy benefit managers” for claims processing. But the aggregated records are sold to data aggregators, who then match doctors to the prescriptions to determine doctors’ prescribing patterns. This information is then sold to pharmaceutical companies, who send “detailers” to targeted doctors’ offices to convince doctors to switch to their companies’ medicines. Pharmaceutical companies have won commercial free speech lawsuits in two states over their right to access these records. The ACLU’s main interest in this area is making sure that individually identified prescription drug information is not released to anyone without a patient’s permission.
- Electronic medical records systems. The effort to digitize and consolidate Vermonters’ medical records in large electronic databases moved forward on two fronts. The first was through the continued work of Vermont Information Technology Leaders (VITL). VITL is a public-private nonprofit that has a state contract to build a system that will allow the exchange of patient medical records among providers. Legislators believe this will result in better care and will, over time, save money. Either or both may be true. (Cost savings, if there are any, are likely to accrue to insurers rather than patients or doctors, studies show.) The Legislature decided to tax medical claims, through a small surcharge, to pay for VITL’s work. Over 10 years, an estimated $35 million will be raised. This seems like a lot of money, and in the short run will result in slightly higher medical bills. But the VITL project is dwarfed by the $89-million project Fletcher Allen Health Care won approval for this spring from the state Department of Banking, Insurance, Securities, and Health Care Administration. VITL’s tech plan is not fully developed, but FAHC convinced BISHCA its system would do whatever was needed to “talk” with all other providers that might eventually link up to the VITL system. Most worrisome about the situation is that VITL does not have privacy and security standards and protocols in place. The ACLU was an “interested party” in BISHCA’s review of FAHC’s project. Our concerns centered on the confidentiality of patient records. We know that medical records information is one of the most sensitive areas for most people. The information can be used not only to provide us with better care but also to deny us care. We believe medical records privacy will continue to be one of the most important public policy issues the Legislature will grapple with over the coming years. It is emblematic of the way technology is challenging privacy and related civil liberties.
- Immunization registry (H. 648). This is an illustration of the “creep” that the consolidation of medical records promotes. As more children attend pre-schools, there has been increasing concern that they be immunized against common childhood diseases. So the Legislature wanted to expand the child immunization registry that the state Department of Health maintains. But the House Health Care Committee voted to go further, and expand the registry to include immunization records for all adults. The measure, H. 648, was taken up hurriedly in the final weeks of the session, and eventually tacked on to another bill that was considered “must-pass” legislation -- S. 283, which deals with managed care organizations and the state’s overall “blueprint for health,” which passed.
- Protection of health care and public safety personnel from communicable disease (H. 112). H. 112 provides for involuntary blood testing for certain communicable diseases if an EMT or other health care worker has had significant exposure to the victim’s blood. The bill was whittled down from its original scope so that in its final form it only covers victims who give their consent, and deceased victims. This is an area that it’s hard to pinpoint how far individual privacy rights extend. Does someone who is deceased have privacy rights? Case law seems to suggest no, and there seems no constitutional basis for asserting that these rights exist. We did not oppose the bill in its final form.
- Enhanced driver’s licenses (S. 358). Enhanced driver licenses (“EDLs”) are the new alternative driver’s licenses that Vermonters will be able to apply for and, if issued, use as a traditional driver’s license as well as identification at the Canadian and Mexican borders (instead of a passport). Protecting the sensitive information collected and stored by DMV for these licenses, and protecting the information stored in the memory chip on the license, are very important. We felt the bill should make clear that the information collected by the Department of Motor Vehicles to verify someone’s identity cannot in any way be considered a public record and accessed by data miners, identity thieves, or other nefarious (or even just nosy) types. In the end, the House agreed to add a reference to privacy protections found in the federal “Driver Privacy Protection Act.” This is the law DMV has traditionally relied on to describe privacy protections. The House felt it was sufficient, and declined to add state privacy protections, too. Note that EDLs are optional. Vermont drivers can continue to use traditional drivers’ licenses for driving purposes. Whether federal officials at the border will continue to accept them for ID of citizenship is unlikely. Vermonters will probably have to carry a passport to go to Canada if they don’t have an EDL. The downside of getting an EDL is that the computer chip used in the license is cheap and low-security. Additionally, sensitive ID information will be kept at DMV. Although it may be an inconvenience to carry a passport, a passport offers higher privacy protections.
- Reproductive freedom rights. I wrote at the beginning of the year that the U.S. Supreme Court’s 2007 decision in Carhartt v. Gonzalez could embolden abortion opponents to push bills limiting women’s reproductive rights. Fortunately, “stalker” bills, such as a parental notification bill, gained no attention or traction in this year’s legislature. This area remains a worry for us in future sessions, however.
We'll now turn to bills related to access to public documents. As noted above, public access issues can often seem to represent the flip side of privacy issues. But there’s an important distinction: The records in question are held -- and in most cases, created -- by the government. The records are presumed public under the state’s public records law unless specifically exempted. The rationale for “open records” is that the public has a constitutional right to monitor and question the workings of government. Public access to government records is, therefore, an important area for the ACLU -- even though individual privacy rights must sometimes be balanced against public access.
- Access to criminal court records (S. 246). This bill was a classic case of how far the public’s right of access to public documents extends, and what privacy rights, if any, an individual who is the subject of the record or an individual who is mentioned in the record may have. I reported on this bill as it wound through committees and passed the Senate. The House didn’t act on it until the end of the session, largely because of debate in the House Judiciary Committee over several specifics of the measure. Briefly, the bill proposed that although court records are public documents, online access to criminal court records (and family court records) would be prohibited. Instead, the Vermont Criminal Information Center files would be made available to the public over the Web for a fee. VCIC records, which were set up as a databank for law enforcement, only contain convictions. The ACLU argued that public records in courthouses are public records, and should be made available on an equal basis no matter the medium -- paper or electronic. Legislators said the courts’ paper records contained too many mistakes, and too much personal information, to allow access to anyone over the Web. We argued that mistakes in any records, paper or electronic, should be corrected, and that if personal information is included it should be redacted from both paper and electronic records. Our arguments lost, and in the end the biggest point of contention over the bill was how much to charge for access to the VCIC records. VCIC is about to lose a large federal grant, and needs new revenue to fill that gap. The Senate set the access fee at $30 per record after estimating how much money VCIC needed, and how many records might be requested. The House was uncomfortable with such a high fee, and reduced it to $20. The Senate gave in, and the bill passed. We think this was a bad bill both because of the restrictions it places on online access to public records, and because government shouldn’t be in the business of selling public records to raise money. And paper court records, supposedly error-ridden, are going to find their way onto the Web anyhow through data miners who send people to courthouses to copy information.. This information is then sold on the Web (usually through “background information” sites). So eventually information will get out, despite this bill’s restrictions.
- Access to public records (S. 229). This bill started with high hopes but ended largely in disappointment. Its initial draft was the result of fights citizen advocacy groups had last year with the Douglas administration over access to executive branch documents. The original draft included a public records advisory committee that could issue advisory opinions on access issues, and a study committee that would look at exemptions to the state’s public records law. That was all stripped out. The final bill recognized rights of appeal to agency heads when access to a record was denied; defined public records as “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business”; and designated standards for the type of paper certain official documents (such as marriage or civil union certificates) must be printed on.
- Access to death certificates (H. 112 and S. 319). These bills were efforts to restrict public access to the “cause of death” information on death certificates. Supporters said sealing the records would respect the privacy of the dead as well as of living family members. A similar bill was introduced in 1989, and the ACLU opposed it then, as we did with these bills this year. Our position is that privacy rights don’t extend beyond the grave, and that the public’s right of access to death records outweighs a family’s right to have information in the records sealed.
- Limiting access to police internal investigations (H. 190). This bill would have put records of police internal investigations off-limits to lawyers and others unless a court order was obtained to force their release. Law enforcement advocates have tried before to get this bill passed, but -- as in previous years -- they failed again this year. The ACLU lobbied against the bill. We receive a fair number of complaints about police misconduct. It’s frustrating when there’s an internal investigation and it’s hard to find out what actions, if any, were taken. In many states police are licensed, as are other professionals such as teachers, lawyers, and plumbers. That’s not true in Vermont. Vermont officers are certified when they graduate from courses at the Vermont Police Academy, but there isn’t the ongoing oversight by an independent agency that professional boards offer. We think that’s a serious gap that is actually harmful to police -- it reduces public confidence in law enforcement. This bill wasn’t about licensing, admittedly, but it displayed an attitude that the public doesn’t have a right to know about possible police misconduct.
- Child abuse or neglect registry (H. 635). This bill, sponsored by two committee chairs in the House, received extensive committee time in the House, and the Senate largely concurred with its provisions. H. 635 sets up a bifurcated system to investigate and respond to claims of abuse or neglect against children and vulnerable adults. There have been persistent complaints that the Department of Children and Families has not always provided due process to those accused of abuse or neglect. For its part, the department says it has responsibilities to investigate all claims and “substantiate” those it feels are valid. Reforms were made last year to the state’s abuse and neglect laws. This bill allows departmental intervention in cases that may not reach the level of substantiation. This would avoid placement of the accused on the department’s registry of abusers. There are likely to be important ramifications of the whole package of changes made to the registry law this year and last. For one, schools will now have access to the registry. Many schools will likely begin checking employees (prospective and possibly current) against the registry. Questions of due process in any substantiations are sure to arise.
We ’ll now move to other bills outside of the privacy/public access sphere. They span a range of issues.
Campaign finance reform (S. 278). Following the governor’s veto last year of a campaign finance reform bill, and the Legislature’s inability to override the veto, efforts were renewed for another campaign finance reform bill. Some thought the same bill as last year’s would quickly emerge (with some minor modifications) and be sent to the governor early in the session as a veto “dare.” But that didn’t happen. The Senate Government Operations Committee moved quickly with a bill, but the House Government Operations Committee took a number of weeks to take more testimony and make changes to the Senate’s work. The bill then passed the House, despite threats of another gubernatorial veto and another lawsuit. The ACLU stressed throughout the process that the courts allow contribution limits if it can be shown the limits will fight identified political corruption, or if the limits are in line with limits the court has previously approved. The governor carried through on his veto threat, and in a repeat of last year, the Senate succeeded but the House failed (by the same one-vote margin) to override the governor’s veto. Vermont will revert to the pre-1997 campaign finance law provisions.
Election of president by popular vote (S. 270). This bill is part of a national effort to assure that the presidential candidate with the highest popular vote total wins. It’s a creative solution to the way the Electoral College vote has, in several elections in the nation’s history, not reflected the national popular vote. Interestingly, Vermont was one of several states that, prior to the Civil War, sought to change the Electoral College voting system because the system was felt to favor the South. The ACLU supports reforming the Electoral College system, which this bill has the effect of doing without having to amend the Constitution. The governor has indicated he may veto the bill, however, which would mean three gubernatorial vetoes of significant election law initiatives (the other bill, in addition to campaign finance reform, was the instant run-off voting bill, S. 108).
Whistleblower protection (S. 201). This bill affirms that state workers can criticize actions of their bosses under certain circumstances, without fear of reprisal. It was an important win for state employees, who in the past have worried that they could not speak or testify to legislators or others about situations they felt needed attention.
Hate crime protections for police (S. 301). Hate crime laws were originally developed to help fight long-held prejudice against certain groups of people where the prejudice had subjected them to an inferior status in society. These groups are sometimes called “protected classes,” with status based on race, religion, ethnicity, nationality, age, gender, sexual orientation, disability, or gender identity. S. 301 would have extended this protection to law enforcement officers and firefighters -- making Vermont perhaps the only state in the country to offer hate-crime protection to members of an occupational group. The majority of the Senate Judiciary Committee backed off on the idea, and instead transformed the bill into a prohibition on the throwing of bodily fluids at officers.
Marijuana law reform (S. 238). This bill could have become one of the high-profile issues of the session. A dust-up between the governor and a local prosecutor had finally resulted in the Legislature’s recognizing the need to look at the state’s drug laws -- at least some of them. The Senate approved a bill that would have prescribed diversion for first-time offenses for possession of small amounts of marijuana. The House balked, and the bill remained bottled up in the House Judiciary Committee for the rest of the session. Nonetheless, the significance of S. 238 shouldn’t be underestimated. The bill represents the first rational conversation about street drugs that’s taken place in the Statehouse in years. The ACLU supports drug decriminalization. Drug abuse is a medical more than a legal problem. Abusers need rehabilitation, not jail time. It is to be hoped that further conversation on drug law reform will come through the state’s nascent Sentencing Commission.
Education finance. The House passed language to undo last year’s “double-vote” school budget approval process, but the Senate refused to go along. There were efforts to return to a system of locally based school taxation (the so-called “LEAF” plan), but it was so clearly unconstitutional that it didn’t move out of committee. Another plan to shift school funding from the property tax to the income tax similarly didn’t emerge from committee.
Same-sex marriage. The Vermont Commission on Family Recognition and Protection issued its report in late April on same-sex marriage. The general message was Vermont appears ready to make the transition from civil unions to marriage for gay and lesbian couples. The timing of the release of the report, however, ensured it could not be used to spearhead a same-sex marriage bill through the Legislature this year. This is a fight for another session.
Tasers. To much fanfare last fall, the Attorney General’s Office announced it was reviewing the police use of stun guns (usually called “Tasers” after the name of their chief manufacturer). The expectation was that state guidelines for use, maybe even legislation, would result. Neither occurred. Instead, the attorney general said Brattleboro police had “blown it” when they used Tasers on protestors last summer (a conclusion an independent investigator for Brattleboro had already reached). Police were urged to use the weapons judiciously, and to adopt policies and provide training before giving them to officers. It remains to be seen if the AG’s report will help curtail police abuse of these weapons. So far, it’s been lawsuits that have successfully conveyed the message that police should use Tasers only in extreme situations, where deadly force would otherwise be justified.
The full text of any bill or resolution can be found at http://www.leg.state.vt.us/
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