A move by Democratic Sen. Peter Galbraith in the Senate Government Operations committee early last week sought to bifurcate some of the requirements of H.73, a law passed by the House earlier this session that seeks more transparency in government. Galbraith’s suggestion was to hold state government accountable for newer, and tougher, language that opens government records and public meetings, but exempt local governments. It was a sop to appease the Vermont League of Cities and Towns, but the amendment failed and the committee approved the House version favorably on Friday morning, after a few minor improvements, without weakening what is a significant improvement of Vermont’s open meetings and open records laws.
The significant change being proposed in H.73 states that courts “shall,” not “may,” provide court costs for plaintiffs who win their challenge against a government body that wrongly kept records from public purview or who erroneously closed meetings to the public.
The change is more than mere semantics. Rather, it puts the shoe on the other foot — that is, rather than ignore requests for more openness as too many local governments have in the past because penalties for wrongly denying information were rarely assessed, local governments will now lean toward keeping meetings open and records available when asked. This does not mean that personnel issues or contracts will be discussed in public. There are more than 250 exemptions that legally close meetings or deny public access to information, and those will remain active under this bill.
The problem has been that some government bodies have simply closed meetings or withheld records that were controversial or in a “grey area” because they gambled that the public would not sue to gain access because of the prohibitive legal costs (and often the timeliness of an issue would make the suit moot, even if the plaintiff won.) By changing the word “may” to “shall” the local government might be more open to legal suits, but onlyif the public is wrongly denied access to records or prohibited from attending public meetings.
The result is that government boards will become far more cautious as to what is closed or kept secret — and that’s the first move toward greater transparency in government.
As passed by the House, H.73 simply seeks transparency and openness in government — a premise that should be based on merit, not financial consequences.
Opponents like the VLCT, argue that local governments can’t afford defending themselves from potential suits. But the remedy is simple: don’t close meetings that shouldn’t be closed, and don’t withhold public records without cause. That’s not only the right thing to do for public transparency, it’s also nothing more than following the law.
Moreover, the majority of requests for access to public records or appealing the decision to close a meeting come from local residents, the local media or a local business. All have a vested interest in maintaining good public relations with each other and have no interest in causing undue agitation.
The goal of H.73 is make local and state government more accountable to the people. Vermont’s public record laws are among the weakest in the country — a sorry reputation for a state that prides itself on being open, honest and transparent. As for the allegation by opponents that local government boards and officials can’t be expected to know the open records law, provisions within the law allow plenty of time (20 days) for officials to obtain legal counsel and reverse an incorrect decision and still avoid paying court costs.
Now that the bill is out of Senate Government Operations, we hope the remaining process in the Senate will go smoothly, Senate members will reject any further attempts to weaken this legislation and will send it to the governor, who supports the House version, for his signature.