Shumlin Public Records Proposal Under Microscope    

Beth Robinson, left at table, gubernatorial legal counsel, explains H. 73 to the House Government Operations Committee.

Testimony began in earnest this past week on H. 73, Gov. Peter Shumlin's "open government" proposal to improve access to public records.  

The leading witness Thursday before the House Government Operations Committee was the governor's legal counsel, Beth Robinson. Although the bill has technically been sponsored by the committee's chair, Rep. Donna Sweaney, D-Windsor, it was drafted by the governor's office to reflect its approach to openness.

The bill would, among other things, create a government transparency office that would provide a non-binding alternative to challenging a public records request that is denied. The bill also creates a "presumption" that plaintiffs will get costs and fees if they have to go to court (and they win) after having first gotten a favorable decision from the government transparency office.

We're skeptical of the effectiveness of another administrative layer added to the process of obtaining a public record. In other states that have such systems, results are mixed. And we don't think a "presumption" that prevailing plaintiffs get fees and costs goes far enough. We want to make sure they get reimbursed if they win in court. There are other parts of the bill we have concerns about -- and there are some positive features (like making the state archivist's office a resource for questions about public records requests). Read the ACLU testimony to the committee.

Secretary of State Jim Condos also feels the bill doesn't go far enough. Condos told the committee that he's not sure a government transparency office will work the way it's intended. Rather than introduce another layer of administrative review of public records requests, he'd like to see an ombudsman who could provide information and assistance regarding public records requests. He'd also like to see citizens who win public records cases in court get their costs and fees reimbursed.

Testimony was also heard from Abigail Winters, general counsel for the Vermont State Employees Association (the VSEA is particularly opposed to the imposition of new fees for inspecting public records), and from Steve Jeffrey, executive director of the Vermont League of Cities and Towns (which is generally opposed to the governor's proposal).

One more thing. The current public records law has more than 230 exemptions. H. 73 would create a committee to study the exemptions and recommend changes. While such review may be a good idea, we think there is one exemption to the public records law that desperately needs to be changed now. That's the police records exemption. It's poorly written, vague, and has led to unwarranted secrecy about law enforcement activities. There's a simple fix -- substitute the federal Freedom of Information Act (FOIA) police records exemption. It's clear, precise, and is used by numerous states in addition to the federal government. There's also a lot of case law around it -- unlike Vermont's police records exemption, which has never (in its 35-year history) been taken up by the Vermont Supreme Court for clarification.

We have an open government resource page on our Web site. It contains links to Vermont's current public records, open meeting, and campaign finance disclosure laws. It also has links to the police records exemption in current Vermont law, the federal FOIA law, and many other documents.  

Several news stories and an editorial about H. 73 and public records access appeared in the Vermont press this week. Here are links:

• Public Records Debate Deepens: Transparency and Privacy Figure Into Statehouse Debate, Feb. 6, 2011, Sunday Rutland Herald/Times Argus

• Accountability is a Simple Issue, editorial, Feb. 6, 2011, Burlington Free Press. 

• Reforming Vermont's Public Records Access Proves Difficult, Feb. 4, 2011, Burlington Free Press

• Vermont Eyes Office to Enforce Public Records Law, Feb. 4, 2011, Brattleboro Reformer (Associated Press)

• Changes Recommended for Public Records Law, Jan. 25, 2011, Vermont Public Radio.

Five years ago, the legislature reluctantly agreed to the creation of a state-run database of all prescription drug records ("Schedule II" or higher) from Vermont pharmacies.

The system was controversial when first announced. Privacy concerns were raised -- particularly when police told legislators that since they have the authority to walk into any pharmacy in the state and, without a warrant, look at anyone's prescription drug records, they expected to have the same access to the comprehensive computerized database.

Legislators insisted the database was for medical purposes, not law enforcement purposes. Agreement was reached that police would have access only in emergencies, when the health commissioner personally contacted the public safety commissioner personally and relayed data. Otherwise, police would need a warrant from a court for access, as required for all criminal investigations.

This year, though, law enforcement officials are back and want a different deal. They want to be able to access the database without a warrant, gaining information on people they think may be abusing or selling prescription drugs. Warrants, these officials told House and Senate committees, are too difficult and time-consuming for investigators to obtain.

The request violates a previous agreement. It also comes at a bad time. The state is building an all-encompassing e-medical patient records system. Major privacy and security concerns have been raised. A huge hurdle to building the system might arise if people became wary that police may someday want to access patients' e-medical records, as police now want to access prescription e-drug records. That negative perception could lead many to opt out of the e-medical records system, diminishing the benefits the state, health providers, and patients hope to achieve.

It is to be hoped the prospects for expanded, unwarranted police access to private medical records are not high.

Read: 

• Act 205 of the 2006 session, which created the Vermont Prescription Monitoring System (VPMS).

• ACLU letter to the House Human Services Committee regarding police access to VPMS data.

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Sheryl Rapee Adams