If any of you have ever baked bread, you know that you are only supposed to knead the dough for so long before it starts to impact the quality of the final product. Some things aren’t meant to be touched, if at all.  Related to this is the old Vermont proverb, “if it ain’t broke, don’t fix it.”  Sometimes a client will come into the office and we’ll decide the best thing to do in a particular situation is nothing at all. And that’s my position on many of the changes being proposed to Vermont’s Open Meeting Law (OML) and Public Records Act (PRA).

If there is something broken about the PRA it is the applicability to both the State and the political subdivisions thereof, also know as municipalities. Not that municipalities shouldn’t be subject to the PRA, it is just that the PRA as it now exists was written around requests to State Government, not Local Government. Here are a couple of obvious examples. Who is the “head of the agency” (this head of agency language is replicated in the newly proposed revisions to the PRA as well) in respect to municipal government under 1 V.S.A. § 318(a)(3) of the PRA? A town manager? An individual selectboard member?  The entire selectboard? How about this, what are intradepartmental and interdepartmental communications in respect to a municipality under1 V.S.A. § 317(a)(17)? How may municipalities in Vermont have departments?

But I digress. The latest proposed changes to the PRA and the OML fly in the face of sound public policy and take us closer to an Orwellian Surveillance State. How you ask?  Well lets look at some of the proposed changes.

New language offered defines a “meeting” in part as “each communication within a series of communications of any kind, directly or through intermediaries, to discuss or take action on any business of the public body, even if the individual communication does not involve a quorum of the public body.”  That effectively means that selectboard members can no longer get together informally, in groups less then a quorum and then discuss the results of that meeting with anyone else, because how are they going to be able to regulate the dissemination of that discussion beyond the initial group? In larger towns and cities where there are regular caucuses held with less then a quorum, intermediaries will no longer be able to discuss the caucus results with anyone outside of the caucus. Remember, selectboard members are civically engaged, volunteer members of the community. You can only imagine the additional chilling effect this will have on the ability to recruit people to run for these types of positions.

One of the proposed changes to the PRA prohibits any type of fee from being charged for copying records, beyond the physical cost of copying providing “that an agency shall not charge or collect a fee for staff time spent searching for a public record or otherwise include this time when calculating fees…” Public records requests can involve sorting through 10s or 100s or 1000s or even 10s of thousands of emails and other types of documents. That takes time. Right now, the schedule set by the Vermont Secretary of State allows for a charge of 57 cents for each minute of senior-level staff time. For those of you not great at math, that’s $34.20 an hour. And that’s also applicable to the State which carries out its duties “in-house.”  What about when a municipality has to hire outside help to comply with a large and/or complex record request?

The pièce de résistance of the proposed changes to the PRA and OML involves the creation of an “Open Government Ombudsman.” Now that sounds fantastic! The Ombudsman is hired by the Ethics Commission that I blogged about here. The same Ethics Commission that is supposed to be overseeing transparency and open government, according to the State Library Website, recently held a “special” public meeting, at a private law firm. In addition, as far as I can tell, as of the date of this publication, the Ethics Commission still does not have a working website (at least not one that I could readily find based on several Google searches).

The new legislation gives the Ombudsman very broad and far reaching powers. In particular, the Ombudsman may “receive and investigate complaints on behalf of persons seeking records under the Public Records Act or compliance with the Open Meeting Law. The Ombudsman shall have authority to compel, by subpoena, the attendance and testimony of witnesses and the production of books and records, and 3 V.S.A. §§ 809a and 809b shall apply to all subpoenas issued under this subdivision.” However, as best as I can tell from the current revisions, there is no forum in which the Ombudsman will actualize these powers. When I say forum, I mean a tribunal such as a court or board or hearing officer, where due process requirements can be satisfied and the matter fairly adjudicated. For example, where are those witnesses going to be testifying?  The Ombudsman is a prosecutor, without a court.

But wait, the new changes state that not only does the Ombudsman investigate matters, he or she will also “adjudicate questions of compliance [with the PRA or OML] by issuing a binding written determination.” (Emphasis mine).  So the Ombudsman is the investigator, prosecutor and judge? Hmmm, where have we seen this before?  But wait there’s a savings clause. The new amendments provide that a “party to an Open Meeting Law or a Public Records Act dispute is entitled to refuse to participate in mediation under subdivision (4) of this section and to refuse to submit to an adjudication under this subdivision.”  Does that mean the whole process is voluntary (and therefore meaningless) or just that the governmental entity cannot be compelled to participate in the adjudication, but still have to deal with the consequences of an adverse adjudication?

The amendments require the Ombudsman to “establish policies and procedures for receiving, investigating, mediating, and adjudicating Open Meeting Law and Public Records Act complaints and disputes.”  Those policies and procedures should prove to be fascinating.

Looks like there’s still much work to be done.  And it remains to be seen, but the heaviest lifting may yet be by person or persons who point out that the best path to take in this instance would be by declining to go down the garden path at all.

There was old Odd Couple Show courtroom scene where Felix Unger expounded upon the dangers of “assuming.” I’d encourage you to watch it because it provides an important context for the premise of this post.

Most people may have some experience with the term “off the record” as it applies to the media. Presumably that experience is not personal because most people do not speak with the media on a regular basis and on the off chance that they are being interviewed for a story, its likely to be a human interest story and there would be no reason to speak off the record.

Regular consumers of the 24 hour news cycle may have been surprised to read that reporter and author Michael Wolff is alleged to have published excerpts in his new book “Fire and Fury: Inside the Trump White House” from sources who thought that they were speaking “off the record.”

Here’s a good general rule of thumb to live by, when communicating with anyone, in person, on the phone, via email, on social media, direct message, text, etc… presume that anything you say can and will be repeated and maybe even recorded and/or distributed. A brief detour. In respect to recording, approximately 11 states require all parties in a conversation to consent to being recorded and to do so without consent is a potential crime. The rest of the states require only one party to consent to a conversation being recorded. Interestingly, Vermont appears to be the only state that does not have a specific statue one way or another and there is no clear case law on the issue ( State v. Geraw, ruled that clandestine recording in a person’s home is illegal, while State v. Brooks held that it is OK to eavesdrop on a conversation taking place in a parking lot).

Last year the Vermont Legislature, passed what’s been referred to as the so called “Reporter’s Shield Law” or “Journalist’s Privilege.” Among other things, the new law allows reporters to refuse to disclose or be compelled from disclosing the name of a source to any branch of government, in respect to pretty much every type of tribunal. But just because reporters cannot be compelled by the government to reveal a source, does not mean that a reporter is bound by law from disclosing that same source voluntarily, for any reason.

The Associated Press (AP) has set very clear principles in respect to anonymous sources. Here are a few excerpts from those principles (emphasis mine):


“Reporters should proceed with interviews on the assumption they are on the record. If the source wants to set conditions, these should be negotiated at the start of the interview. At the end of the interview, the reporter should try once again to move some or all of the information back on the record.”

“Not everyone understands “off the record” or “on background” to mean the same things. Before any interview in which any degree of anonymity is expected, there should be a discussion in which the ground rules are set explicitly.

The AP Principles define sourcing as follows:

On the record. The information can be used with no caveats, quoting the source by name.

Off the record. The information cannot be used for publication.

Background. The information can be published but only under conditions negotiated with the source. Generally, the sources do not want their names published but will agree to a description of their position. AP reporters should object vigorously when a source wants to brief a group of reporters on background and try to persuade the source to put the briefing on the record. These background briefings have become routine in many venues, especially with government officials.

Deep background. The information can be used but without attribution. The source does not want to be identified in any way, even on condition of anonymity.

In general, information obtained under any of these circumstances can be pursued with other sources to be placed on the record.


These principles are also reflected in in the Society of Professional Journalists “position papers.” Principles and position papers are wonderful, but also nearly meaningless when it comes to legal enforceability (unlike a law, statute, rule, regulation or code which are almost aways enforceable in a professional or legal context).

So much of life is built on trust, but as President Reagan famously stated using a repurposed a Russian proverb “Trust, but verify.”  

When speaking with the media make sure that expectations are agreed to upfront. Make sure the reporter specifically agrees to speak “off the record” and make sure to define what that term means for that reporter. Beware of live or recorded (TV or radio) interviews, where “off the record” is virtually nonexistent and difficult to achieve. Don’t be afraid to tell a reporter that you will get back to her or him and in the meantime take the opportunity to seek advice or discuss the contents of the interview with someone else. If you are really concerned, conduct an interview and agree to its terms only via email. Or ask the reporter if he or she minds if you record your conversation (this is a courtesy and as set forth above, probably not legally required).

Those who regularly interact with the media, have usually developed relationships with reporters and both sides know the rules of engagement and if they fail to follow those rules they do so at their own peril. For everyone else, it doesn’t hurt to make sure that all sides share similar expectations.