MONTPELIER, Vt. — Secretary of State Jim Condos on Wednesday gave his first presentation in the fourth biennial statewide Transparency Tour, a 12-stop trip around the state to provide information about public meeting law and public records requests.
“With trust in government at an all-time low, I believe that sunshine is the best disinfectant,” Condos said in a press release announcing the tour. “Vermonters deserve openness and transparency in government. By educating municipal and state employees, elected officials, and engaged citizens on the requirements of government under Vermont’s Open Meeting Laws and the Public Records Act, I hope to help government officials of all stripes better serve Vermonters.”
At the sparsely attended first stop on the tour, Condos broke down the fundamentals of what the public’s right to know means when it comes to public meetings and records. He also explained the rights of public servants who wish to, under select circumstances, hold executive sessions, emergency meetings, or refrain from releasing a document.
One of the basic public meeting rules is that any planned or chance gathering is subject to open meeting laws when a majority (quorum) of group members attend and a policy is discussed. Votes at such meetings must represent the total board majority — not just a majority of those present — to pass.
Condos said a new challenge is that social media allows for more public meetings to happen at an instant, something not possible in decades past.
“This is the part of statute that is difficult, and that is that state statutes do not keep up with technology,” he said.
Vermont statutes do imply that such meetings, electronic or otherwise, still require the same warnings and regulations as in-person meetings.
“A meeting can occur regardless of the physical location, no exceptions,” Condos said. “Often we’ll get a phone call from a town, and somebody in town said the city council is meeting and they say ‘they’re having a work session and it’s not open to the public.’
“There’s no such thing as a work session, there’s no such thing as a retreat. You have to consider those a meeting if there’s a quorum.”
Another issue Selectboards struggle with is finding proper justification for going into executive session. Many reasons offered don’t meet the requirements of law; going behind closed doors requires some tangible detail such as labor relations agreements, civil litigation, and the like.
When it comes to public records law, Condos said citizens need to know what documents and information can be requested, as well as what circumstances allow state officials to deny requests. For example, the state entity or official in possession of records cannot withhold documents based on who is making the request.
“The identity and motive of the requester cannot be considered when weighing access to the public document,” he said.
This rule stems from the 2010 Vermont Supreme Court case Shlansky v. the City of Burlington Police Department. In March, an attorney in the Vermont Attorney General’s office admitted during oral arguments in court that the office decides which public records requests it will honor after investigating requesters’ political leanings using internet searches.
A privilege for outgoing governors is that their records can be kept from public viewing for years after leaving office. For instance, former Gov. Peter Shumlin has his records sealed for six years.
“There’s been some concern with governor Shumlin because of the EB-5 scandal [a federal visa work program which became corrupted] and people want access to these records and it could be six years before they are available,” Condos said.
Condos had records requested from his office regarding his emails and the EB5 scandal. He said he had no problem turning them over.
“I had about 50 emails, and about 30 of them were from the original investors. I just said, ‘Here you go,’ and I know the attorney general’s office wasn’t happy with me.
“They said they are potential attorney-client privilege, and I said it wasn’t my attorney, and I’m not the client, so there’s no attorney-client privilege. And I said there was nothing in any of those emails that had anything to do with me.”
Condos said when it comes to determining which documents may be withheld, public records law favors transparency and the individuals making the request.
“The burden of proof is on the agency seeking to avoid disclosure, not on the person requesting it,” he said. “If you are requesting information, the burden of proof is not on you to explain why you need this or why it’s public.”
One thing made clear in Condos’ presentation is that records request battles are constantly in the news.
The next stop for the statewide Transparency Tour is 6 p.m. Oct. 10 at the Green Mountain Power Energy Innovation Center in Rutland.