In Montpelier last week, the Douglas administration was trying to explain away an apparent flip-flop on an issue that one might think was close to the governor's heart: open meetings and access to public records. The governor, after all, was Secretary of State for a good number of years during which he ardently supported the rights of citizens and the press to gain easy access to government meetings and records. Â The right of the people to know the truth about government actions, as the governor and most Vermonters know, is one of the most fundamental principles of a free society.
It was odd, then, that at a Senate Judiciary Committee hearing on March 17, Assistant Attorney General Bill Reynolds spoke against access to public records on behalf of the governor. Specifically, Reynolds said the governor opposed a bill, S.45, that would hold government responsible for wrongly denying access to public records or public meetings. The bill would simply change the word "may" to "shall" in terms of who should pay legal costs when the court rules for the plaintiff.
The one-word change has become an issue because in recent years the courts have rarely awarded legal costs to the plaintiff -- even when the denial was a flagrant violation of the state's laws. The obvious outcome of such legal subjectivity is that small media operations, or individual citizens, rarely press for the information because of the likely out-of-pocket expense.
This is no small matter. If a community board, or a state agency, decides to stonewall a public records request knowing that the person requesting the information is unlikely to take the government body to court, then the reality of open government is in name only -- not in practice. Go a step further and it's not difficult to imagine a public body stalling a request for public documents concerning a controversial issue, or closing a public meeting, with the full knowledge that court action would take weeks to resolve the issue and by then the issue may either be moot or not as consequential. Or consider the possibility of a public body denying a request for public records, Â stalling for weeks, waiting for legal action to be initiated, only to finally satisfy the request a few days before court action knowing full well the court is unlikely to award legal fees to the plaintiff.
In each instance, the intent of open government laws is subverted by the willingness of the public body to deny access simply because they know they will suffer no punitive consequence. That is bad government, and it undermines the integrity of the state's laws.
Current law clearly states that plaintiffs "may" recover legal expenses if the judge rules in their favor. But when the laws aren't enforced, abuse spreads.
An appropriate analogy is the enforcement of speeding laws: If the police never fined drivers for speeding, the driving public would learn there was no consequence to speeding and the laws would lose their effectiveness. When speeding tickets are handed out like popcorn at a movie, drivers obey the law.
Nor would the proposed change put an onerous burden on state agencies or community boards. The consequence is to pay the legal expenses of the litigating party only when the courts find that the governing body acted wrongly and disobeyed the laws of the state. It's obvious that the request for public information or open access to meetings can be solved long before legal bills add up. In reality, a quick call to the Secretary of State and the Vermont League of Cities and Towns should yield a reasonable answer within the day or following day on most issues -- all at no expense.
It is only in matters of flagrant violations on controversial issues that court suits are filed and legal fees are an issue.
Why, then, would Douglas send word to oppose S.45? Why contradict his proclamation just days before during Â National Sunshine Week that democracy required Â "an informed citizenry and an open and accessible government?"
No need to speculate. Last Thursday at the final Judical Committee hearing, Douglas sent word that he hadn't flip-flopped and that he wasn't really against enforcing the state's open meeting and public access laws. The governor wanted to be cautious, his spokespersons said, but they were sure both sides could work something out.
Glad to hear it, but we're not quite sure why anyone needs to improve upon the simplicity of changing "may" to "shall." Then again, clarifying the rules and exemptions under the law is another matter and should be a separate initiative taken up by the government affairs committee.