Editor’s note: This commentary is by Vermont Attorney General TJ Donovan.
Should Vermont taxpayer-funded government lawyers do free legal work for private law firms and companies? Or should the state be reimbursed for that work? Those are some of the questions that need to be asked after the recent Vermont Supreme Court decision, Doyle v. City of Burlington Police Department.
The Vermont Attorney General’s Office is the State of Vermont’s lawyer. We receive a public records request roughly every three days. And to be as transparent as possible we post those requests, related correspondence, and our responses to our website. Most of the requests for records possessed by the Attorney General’s Office are from private law firms and companies. Everyone has the right to request public records. This is good for government transparency and for democracy.
As Vermont’s lawyer, we believe our clients, including offices of the state, have a right to be represented. This means every document requested is scrutinized, reviewed, and vetted by lawyers to make sure we are not revealing confidential or privileged information, making sure we are complying with court orders and the Public Records Act and other statutes, and not jeopardizing investigations or our clients’ rights. This is a lawyer’s ethical duty. This is legal work. This takes time – taxpayer-funded time. This is the very “staff time” that the court said was reimbursable. This is not about simply snapping a photo. Or possibly allowing outside lawyers and companies to bring portable scanners into the Attorney General’s Office to copy documents for free.
This is also time that my team could be spending on protecting consumers, addressing the opioid epidemic, advocating for civil rights, and ensuring that we have access to clean water and clean air. There is a cost to Vermonters associated with diverting attorney time and resources from my office’s mission. More to the point, should we provide free legal work to law firms and companies that may take an adverse position to the policies of our state? They may be collecting documents in anticipation of litigation against the state. I believe that’s their right, but I also believe we should be reimbursed for our costs. It takes a minute to make a request, but it may take hours to comply with that request.
The Public Records Act provides transparency and openness about documents and other records held by government. Anyone can request to copy or inspect a record. To inspect is free. The law does allow the government to be reimbursed (after 30 minutes) for the cost of gathering, preparing, analyzing, and redacting the document in anticipation of copying. For my office, the primary cost is not for the photocopy — it is for the staff time needed to locate the record, perform the analysis, and redact things like student names, personal information, information protected by the attorney client privilege, or confidential information.
The Doyle decision did not resolve all the questions about our Public Records Act, but it attempted to clarify when the state could be reimbursed. The court divided public records requests into two columns: inspection and copying. According to the court, these columns do not intersect. A requester who wishes to make copies is in the copying column and is subject to a request of reimbursement from the government. To “copy,” the court stated, is to take something that the requestor could “keep and review whenever or wherever” they choose.
Gov. Phil Scott and Secretary of State Jim Condos have interpreted that to mean government can’t charge a requester who takes a photo with their phone of those records or someone who uses a portable scanner, because there is no cost to the state. What they fail to acknowledge is the enormous cost to Vermont taxpayers in preparing those documents — documents that may be potentially used in litigation against the state. Again, that’s the requestor’s right and I believe they are entitled to the documents. I just think the state, and the taxpayer, should be reimbursed for that work — exactly what’s allowed under the Doyle decision.
This is about advocating for a system that promotes transparency while balancing access to records with legitimate legal protections afforded to our clients and members of the public while protecting the Vermont taxpayer.
My hope is that the Legislature will take up this issue during the next legislative session. These are policy questions that need to be resolved and until they are, I will continue to promote transparency, advocate for the rule of law, and protect the Vermont taxpayer.