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Special Report: Vermont

Tom Kearney Laments Vermont’s Woeful Public Records Law

Vermont is the bluest of the blue states. In the 2008 election, just four of Vermont’s 247 communities voted for McCain-Palin. Radio hosts let you say George Bush was president, but you can’t say he was elected president. Both houses of the Legislature are ted by Democrats. The governor’s a Republican, but not a rabid one; he’s a “do no harm” kind of guy.

What’s more, politically active Vermonters have trouble believing all of America’s not like them. Two towns have voted to arrest Bush if he ever sets foot in the community. The state’s only congressman took huge flak because he thought an impeachment trial would be a waste of energy. The congressman’s a Democrat, and so is one of the two U.S. senators; the other senator is a socialist. Literally.

So, you might think, those adamant Vermonters sure must want to keep track of what their government is up to. The right-to-know law must be as transparent as glass, right? Wrong.

How it got so messed up is a mystery, but there’s no question it’s messed up. The man who wrote the law, a former attorney general and state senator, put 27 exemptions in the law for the usual stuff – personnel matters, land acquisition, legal strategy in a lawsuit, that kind of stuff.

Now, a couple of decades leader, there are 206 exemptions, by count of the Legislature’s top legal guy. And they’re not easy to find; they’re scattered throughout the statutes, and aren’t cross-referenced to the public-records law. Nobody can say how all 206 exemptions got there, or whether they still make sense – if they ever did. They got into law without any clear analysis of their worth. Many “magically appeared” in conference committees, when House and Senate ironed out differing versions of the same bill, says a state senator.

“The current state of records management in Vermont is poor,” says the Legislative Council’s report, issued in 2007. “The myriad statutes governing recordkeeping are not always known by agency staff.” The law doesn’t take computers into account. Who knows what’s an allowable charge for making a copy? And so on. These issues “ultimately undermine the policy goals for managing public records… that “public records and general and archival records in particular need to be systematically managed to preserve their legal, historic and informational value, to provide ready access to vital information, and to promote the efficient and economical operation of government.”

That’s quite an indictment, and it came from the Legislature’s top lawyer. He proposed in that report two years ago that a single agency collect and manage all the state’s public records, that public access be guaranteed, that appeals be both quick and cheap, and that a group be formed to look at those 206 exemptions and see if any of them should survive.

Hip-hip, said the Legislature, and it voted to form a review committee and get started on reorganizing records management.

But the Legislature has ADD; it’s easily distracted by competing issues. That great start toward rectifying the pervasive public-records problem has now been trampled by the economic crisis.

So, we are still where we were, and likely to remain there until the Legislature comes up for air – or somebody in authority can insert a breathing tube. Part of the problem is that Vermont’s so small, people do business on a handshake. Someone you’ve never met will fix your leaky pipe, and when you try to write them a check, they say no, we’ll just send you a bill. Farmstands sell their produce on the honor system. People trust one another.

All that is delightful, but there’s no consensus on where trust should end and verification begin. For instance, the state’s chief utility regulator had a Christmas party, and invited the head of the state’s only nuclear plant to drop by for some eggnog. He did. Confronted by a reporter, the regulator dissembled for a while, then conceded that the nuclear guy was on the guest list, but, you know, that doesn’t mean anything. The nuclear critics went bonkers, but the governor sided with the utility guy. It’s too small a state, people run into one another all the time, you can have a relationship and still be professional, nobody worries about that stuff. Same with closed-door meetings. If the press doesn’t protest, nobody will. It’s just the Vermont way.

But professionalism is creeping into state politics, and novel theories are popping up for keeping things secret. The state Supreme Court has acknowledged executive privilege, but the governor’s people wanted more. They claimed “deliberative process privilege” as legal grounds for refusing to disclose how and why policies were being written on major environmental issues. The Legislature got into that fight, and blasted the governor – Republican – for his penchant for secrecy.

Of course, the Legislature won’t disclose e-mails from constituents, and erases those e-mails after 90 days. You can’t sue and get them eventually, because they’re gone. In some ways, this cracker-barrel approach to politics is quaint, charming and refreshing. Problem is, it’s wide-open for abuse, and despite agreement that public means public, there’s no champion for the public’s right to know here in the Peoples Republic of Vermont.

On the other hand, we make great maple syrup.

Tom Kearney, a native Vermonter, is managing editor of the Stowe Reporter.