Freedom of Information Act

A few months ago I attended the first meeting of of the Vermont Ethics Commission and blogged about it here (incidentally if you know how to locate the Commission’s website, please drop me a line, I haven’t been able to find it). During the course of that meeting I engaged in an exchange with the Vermont Secretary of State’s Office about executive officers and state employees getting guidance of a confidential nature from the Commission. The Secretary of State tweeted that “transparency isn’t always the answer…. some exceptions are OK.”

I couldn’t agree more. The question is where the line gets drawn. The fact of the matter is that the Public Records Act (PRA) and its federal counterpart the Freedom of Information Act (FOIA)(incidentally it is a pet peeve of mine when people use FOIA as shorthand for the PRA since they contain different standards are are subject to a different body of case law, interpretation and precedent) are increasingly being weaponized. There are those that might argue that the weaponization is a price we pay for a free society, but I’m not so sure.

Over the past week or so there have been two noteworthy examples where both the PRA and FOIA were turned on their respective heads. The first story, as reported by the New York Times, comes from the Environmental Protection Agency (EPA) where career employees who are speaking out about the alleged harm being wrought by current Administration, are having their emails scrutinized — by political operatives with what appears to be an intent to suppress and intimidate. For example the emails sent by a career EPA employee on his last day of work, were requested under FOIA and within the emails the departing employee rebuked the practices of the Administration and indicated to the recipient list that he knew that they shared his views. So while that employee is now presumably collecting his retirement, his colleagues left behind are now potentially subject to additional scrutiny, for an action that they had no control over.

Here in our little corner of the woods, reported by VT Digger (which reminds me I need to send a contribution to the Digger year end fundraising campaign STAT) things took a interesting turn under the PRA. Evidently an confidential report on public safety communications was released to the press without permission. According to Digger, John Quinn, the Chief Information Officer of Vermont, admonished the Public Safety Broadband Commission stating that “I fully expect a public records request of all commission members and members with access to the report, to turn over any communication between commission members and Stephen Whitaker,” ……“You are all subject to the records law as a commission member.”  While I would’t exactly call this a weaponization of the PRA, it clearly represents a unique utilization of the law, wherein the Executive Branch of government is essentially telling one of its many working parts that the PRA can and will be used “against” it. It will be interesting to see whether the Commission members have state issued email addresses or if they use their own. That of course represents a whole host of other issues that were recently touched on right here.

PRA requests come with real costs – – political, financial, societal etc. This is especially the case at the municipal level in Vermont where resources and expertise are by design not as plentiful as the state and federal government, but the PRA applies just the same. We are obviously going through an unusual period in history where “normal” conventions are no longer the norm. The Vermont Supreme Court has long held that “identity and motive of the requestor cannot be considered when weighing access to public documents.” Shlansky v. City of Burlington, 2010 VT 90, ¶ 11 (citing Finberg v. Murnane, 159 Vt. 431, 437 (1992)). Maybe it is time to reconsider that proposition, maybe not. But the opportunity to weigh in is coming up as according to the Secretary of State’s Office, the legislature is looking at a rewrite of Vermont Open Meetings and Public Records Laws in this upcoming session.  Stay tuned…..