Vermont's public records law is perhaps the only state law that has no means of enforcement. None. If a public agency -- on the state, county, or local level -- breaks the law, it's up to citizens to go to court and enforce it. Yet even if citizens take the trouble to do that, and win, they still lose. They'll be out the cost of filing the complaint ($262.50) and attorney's fees if they hired an attorney to handle their case (hundreds to thousands of dollars).
It's no wonder few public records challenges are filed. If police say you can't get documents related to someone's arrest (which the law says you're entitled to), would you put up the money -- your own money -- to have the law enforced?
That's why the ACLU, the Vermont Press Association, Common Cause, the Vermont State Employees Association, and other open government advocates are urging the legislature to make sure citizens who win public records cases get reimbursed for their costs and fees.
The law currently says prevailing plaintiffs "may" get reimbursed. Judges rarely (we believe three times in 35 years) decide that public records enforcers deserve financial help. So we want "may" changed to "shall."
Mandatory awarding of fees and costs for successful plaintiffs is the system used to enforce federal civil rights laws. People who are willing to go to court to fight for something of benefit not just to them but to others, and to uphold an important principle, deserve help. Nineteen states have such laws.
The Vermont Legislature has seen fit to grant mandatory costs and fees to prevailing plaintiffs from financial institutions whose name is misrepresented during mortgage broker cold-calls to landlords whose tenants damage rental property.
If "cost-neutral enforcement" is considered appropriate for landlords, financial institutions, and condominium associations, it ought to be available to Vermonters who must go to court to find out what their government is doing.
Read more about discussions at the legislature regarding public records, open meetings, and other issues at our latest legislative e-update.