City manager charges fee to see public records

We just want this information so the community can move forward in good faith and with clear understanding. So it is not in the city’s best interest to not adhere to these requests in good faith. I don’t understand it.
— Jeremy Holm

VERGENNES — At least three residents who have made Freedom of Information Act (FOIA) requests for information — including emails, texts and other communications among Vergennes city officials related to the July 16 city council meeting after which Mayor Jeff Fritz and three councilors resigned — have not been happy with the response from City Manager Daniel Hofman. 
Hofman, however, insists he is following the law while providing materials and charging for his time in doing so.
At the heart of the disagreement lie a statute that does allow municipalities to charge hourly fees for providing copies and materials to be taken away, and a 2019 Vermont Supreme Court Case, Doyle v. the City of Burlington. 
In that case, related to body-camera footage from Burlington police officers, the court ruled that municipalities cannot charge for materials that are simply going to be inspected in the city office.
Former Addison Northwest School District Board Chairwoman Sue Rakowski, along with Jeremy Holm and Sarah Stroup, shared with the Independent documents they obtained and their correspondence with Hofman and in some cases with the city council and Secretary of State Jim Condos about the issue. 
In a Monday letter to the council, Rakowski outlined the issue. She made an initial FOIA request for documents the day after the July 16 meeting, in which Hofman revealed texts from Fritz in which the former mayor appeared to threaten Deputy Mayor Lynn Donnelly and Councilor David Austin. Fritz later told the Independent the language was “banter” and not to be taken seriously. 
In her letter Rakowski said many residents were “disturbed” by what they had seen in the meeting and wanted to learn more, and she therefore filed her request through the city website. She said she was pleased with a prompt response from Hofman, but surprised by a $130 invoice. 
She wrote, in part:
“1) City Manager Hofman was not up front about fees that would apply to my request, nor did he email to clarify whether my request was for copies or for inspection of the documents. As I mentioned, I submitted the request via the website contact form, which only allows for a short message.
“2) The invoice charged for City Manager Hofman’s time at $.57 per minute, which is the uniform rate for senior-level staff time when fees are assessed…
“3) My completed public record request is missing substantial amounts of requested information including email attachments and records that have been referred to during public meetings. Additionally, City Manager Hofman claims that he cannot produce communications between or among alderpersons.
“4) City Manager Hofman claimed that another public record request was ‘voluminous’ and ‘unusual’ and subsequently assessed fees and waiting periods that are against the spirit of the law and severely limit access to public records. The request was neither voluminous nor unusual; in fact it was carefully itemized and specific.
“5) City Manager Hofman wrongly insists on charging fees for inspection of records. One request, which has been appealed to the City Council, was denied by the City Manager for refusal to pay fees that were unlawfully assessed. There is considerable disagreement about when it is permissible to charge for staff time to provide copies of public records under 1VSA 316(c)* and the Vermont court cases interpreting it. In any case, Vermont statute does not authorize agencies to charge fees for inspection of public records.
“Even when a copy must be made in order to redact information, the Vermont Supreme Court has confirmed that inspection of public records must be allowed without charge (Doyle v City of Burlington Police Department (2019)).”
Hofman said he disagrees that the Doyle precedent applies in this case, and that there is no way he can provide materials for inspection without considerable time and effort. 
“Doyle is referring to a very specific case regarding body camera footage. This is completely different. If I have a document that has a specific word and the document needs to be redacted, how can I have somebody look over my shoulder in that scenario? Doyle is a completely different scenario. I’ve already been told by lawyers it doesn’t apply,” Hofman said.

The case being appealed to the city council is that of Holm. It was to be discussed at the Tuesday council meeting that was canceled due to Monday’s three council resignations that left the council without a quorum. 
Holm on Monday said he was not happy to be charged to inspect records, nor to be denied a chance to state his case. 
“The city manager denied my request. I applied for a hearing, which they never gave me. They have until this afternoon (Monday) by law to fulfill that meeting, as far as I understand,” Holm said, adding, “You have to pay for copies, but not inspection.”
Hofman was asked if those, such as Holm, could simply view records on screens at city hall, something Holm proposed. But Hofman said city offices lack a public computer, and his and other staff computers cannot be viewed due to sensitive information they contain, such as personnel files.
“I have stuff that pops up on my computer all day that’s sensitive. Other places are different that have public computers,” Hofman said.
Holm argued that it was in the city’s interest to be transparent to demonstrate there was not a preplanned coup, as many citizens say they suspect given the events of the July 16 council meeting. 
“We just want this information so the community can move forward in good faith and with clear understanding. So it is not in the city’s best interest to not adhere to these requests in good faith. I don’t understand it,” Holm said.
Hofman said he is reluctant to give preferential treatment to any citizens. 
“I charge everyone that needs items redacted or inspected, the same way I charge these guys. If I did not charge them, what type of precedent does that set? This is the law. I’m following the law,” he said.
Still, in a response to Rakowski, Condos seemed to come down on the side of transparency and not charging, while at the same time stating he did not know all the facts on the ground in Vergennes: 
“Yes, inspection of public records under the PRA (Public Records Act) is free. The Vermont Supreme Court has confirmed this in Doyle v. City of Burlington Police Department (2019). Fees for staff time may generally only be charged when copies are requested, and then only in certain situations.
“Generally speaking: The requester gets to choose whether to inspect or request a copy. In Doyle above, the Supreme Court rejected the argument that fees are appropriate when the custodian must produce a second, redacted version of a document in response to a request to inspect.”

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