In Montpelier last Thursday, Gov. Peter Shumlin waffled on an earlier pledge to put more teeth into the state’s open records and open meetings laws. Beth Robinson, Shumlin’s legal counsel, told members of the Vermont Press Association that the governor’s initial intent had been to join the press corps in its effort to draft a new law that, among other things, changes a judge’s imposition of legal fees (if wrongfully denied) from “may” to “shall,” but now he is considering language that says, in effect: “a judge shall impose legal fees, unless…” followed by a host of exceptions that include such fuzzy notions as “good intent” and a list of excuses for what boils down to public officials not knowing the law.
That’s disappointing.
We respect that the governor is trying to cover all bases with this cautious compromise, but adding such conditions to what should be a simple premise is precisely why existing laws are so weak today.
When the current laws on these issues were written, there were 27 exemptions for all the common stuff: personnel issues, contract negotiations, land acquisitions, legal strategy in a lawsuit, and others. But that list grew and grew until today, a few decades later, we have an unwieldy list of 206 exemptions scattered throughout state statutes.
The result is that Vermont is rated among the worst in the nation for its lack of openness and transparency in government. It is so egregious that it became the campaign issue in the secretary of state race, and candidate Shumlin also pledged a more open and transparent state government.
That pledge won’t come true if Shumlin opts for language that allows judges to intuit whether a public official’s intent was “good” or, what, evil? Surely, few judges will rule that a public official’s wrongful denial was anything other than ignorance. But it is precisely that kind of thinking that has led to the blatant abuse of the laws’ intent.
Too often we see governing bodies conducting illegal executive sessions and denying records that should be open to the public with the knowledge that even if sued and found in the wrong, they’ll suffer little monetary consequence. That’s because they are betting that those denied will probably not go through the trouble of hiring an attorney, pressing a suit, and then facing the prospect of judges who have all too often ruled in favor of those seeking the information but then deny payment of legal fees. In fact, judges have granted legal fees to those filing suits in just three cases over the past 30 years.
Changing the law to read that judges “shall” award attorney’s fees is enormously important because it will reduce potential abuse before it happens. It does that by putting the burden of payment (if the denial is inappropriate) on the governing body — not on the citizen, organization or media outlet that is seeking openness on the public’s behalf. It effectively puts the shoe on the other foot.
Think of it: If a town selectman or a agency head inappropriately denies access to a meeting or records, they put the public tax dollar at risk. The result is predictable: Because governing bodies would be responsible for paying all court fees if they are wrong, they will be sure to check the legal status of their action before making a mistake.
Nor does it mean more suits will be filed. On the contrary, it’s logical that because fewer denials are likely, fewer conflicts will arise. And even in cases that have a legitimate difference of opinion, there’s a better chance of coming to agreement sooner than later. When being right means not having to pay legal expenses, and being wrong means paying legal expenses for both — both sides have good reason to be sure they are right or settle as soon as they realize their legal footing is shaky.
The governor does no favors to anyone by saying he’ll embrace change only to have a new law so weak that it perpetuates the current problems. Rather, the governor was right when he said he favored open government “because we have nothing to hide,” and because “openness discourages abuses from happening.”
To that end, he should stick with “shall,” and forget adding conditional clauses that do more to confuse than enlighten.