Make It Transparent, Hold It Accountable

Access to information is an important issue for GMD, so this is a piece I asked Allen Gilbert to do for these pages. I hope you can make it to the conference.

By Allen Gilbert, executive director, ACLU-VT

The right to hold government accountable is guaranteed in the First Amendment to the U.S. Constitution (the right “to petition the Government for a redress of grievances”) and more specifically in Article 6 in the Vermont Constitution (“That all power being originally inherent in and consequently derived from the people, therefore,  all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”)

It’s this right that underlies Vermont’s public records and open meetings laws. Government is accountable to the people at all times.

Questions are being raised, however, whether Vermont’s laws are able to provide citizens with the access they need to exercise this right. Officials routinely deny requests for records that many feel should be open. Public bodies meet in closed sessions without giving adequate reason for closing out the public.

The only recourse to address violations is through litigation, which is expensive. Newspapers, which once brought most open records and public meetings cases, aren’t going to court nearly as often because of diminished resources. Even if a plaintiff prevails in court, judges may, but are not required to, award fees and costs. Few do.

Public records, open meetings, and a related issue — campaign finance disclosure — are the topics of a conference, “Transparency and Accountability in Government,” this Thursday, Nov. 18 at Saint Michael’s College in Colchester. It’s sponsored by the American Civil Liberties Union of Vermont, in collaboration with the Vermont Press Association and the New England First Amendment Coalition.

The morning session, “Government is a Public Enterprise,” will focus on access to public records and open meetings. The opening presentation will be by Greg Sullivan, counsel to the New Hampshire Union Leader and a member of the board of directors of the New England First Amendment Coalition. A follow-up discussion panel will include Paul Gillies, attorney and former deputy secretary of state; Jim Barlow, senior staff attorney at the Vermont League of Cities and Towns; Mike Donoghue of the Vermont Press Association; and Anne Galloway of VtDigger.org.

The afternoon session will examine “Vermont’s Campaign Finance Disclosure Laws: Why Do They Get Failing Grades?” Lead-off presenter is ACLU-VT Staff Attorney Dan Barrett; discussion panelists include Secretary of State Deborah Markowitz, Sen. Jeanette White, chair of the Senate Government Operations Committee; and Kristin Carlson of WCAX-TV.

There have been a series of high-profile public records cases this year. The cases have ended up in court because government has denied access to materials collected by public officials as they went about their public duties. The cases are:

• Tom Salmon DUI arrest video. State police originally said WCAX-TV could have a police cruiser video showing police stopping and testing state Auditor Tom Salmon (who was running for re-election) for DUI.  Then the Public Safety commissioner, Tom Tremblay, reversed that determination and withheld the video on the grounds it was part of a “police investigation” — even though the investigation had long since ended. Judge Crawford in the Washington Superior Court ordered the video released, on the grounds that the action shown in the video occurred in a place accessible to the public. Since anyone who had been there could have seen what the video captured, the recording was public, the judge reasoned. This was an interesting approach that opens a new potential avenue of access to police records. The Attorney General, who defended the state police action, is considering an appeal.

• ACLU cell phone tracking data lawsuit. The ACLU won this case, despite the fact that technically we lost. We filed our case because we wanted to know two things: 1) Is the attorney general obtaining cell phone data to track people’s whereabouts? 2) If so, is the data obtained by warrant, issued by a judge after review for probable cause? During the litigation, we got the answers to both questions. Yes, the AG is tracking people through data from their cell phones, and no, the AG is not getting a warrant before telling cell phone companies to hand over customer data. What we technically lost on was getting actual copies of the requests for the data, or copies of the data. We didn’t need those, it turned out, to get answers to our questions. We accomplished that in the course of the litigation.

• Hartford Police Department records request. VtDigger.org investigative journalist Anne Galloway wanted to know more about what appeared to be a blatant case of racial profiling by Hartford PD officers. She asked the department for records of the incident. The department refused her request. She appealed that denial, and the ACLU is representing her in court. Last week Judge Katherine Hayes in the Windsor Superior Court ordered relevant records released. The judge set out an interesting standard for determining which records this includes. She said that if the records were obtained or compiled BEFORE police decided not to bring any charges in the case, the records are secret. If the records were obtained or complied AFTER police decided not to bring any charges, the records are public. We’re waiting for an evidentiary hearing in the case so we can see how this is going to work.

• Vermont Police Academy investigation records lawsuit. The Rutland Herald has reported on several incidents in Rutland County involving police officers’ possession of child pornography. One incident involved officers at the Vermont Police Academy in Pittsford. Complaints of officers’ possession of child porn, and a subsequent suicide, became the focus of an investigation undertaken by state police; police forwarded their report to the state Attorney General’s Office for possible prosecution. The AG declined to prosecute, and closed the investigation. The Rutland Herald, and the ACLU, asked for the report. The attorney general denied the requests. The Rutland Herald sued for release but lost in Washington Superior Court. Judge Geoffrey Crawford ruled that even though the investigation was over and no prosecutions were forthcoming, the report was secret. He did not even entertain release of a redacted version, in which individual names would be blacked out. The Herald is considering an appeal to the Vermont Supreme Court.

Why so many public records cases all of a sudden? Well, the state has just concluded an energetic campaign season. Technology has opened new avenues for police in tracking where we go and what we do. And police have been involved in some unusual incidents.

The cases have all raised questions about proper conduct by public officials — the core focus of Article 6 of the Vermont Constitution.

But there’s another reason the cases are in court.

Vermont’s public records law has been in existence 35 years. It has become increasingly complex, with more than 200 exemptions. Yet there is very little case law (clarifying law that arises from court decisions) that helps define how provisions are to be applied. What we’re finally seeing now is litigation to define how the law is supposed to work.

Case law, however, may not be enough. Statutory law — law created by the Legislature — may be necessary to make Vermont government more open and more accountable.

Quite simply, the system is broke. It needs fixing. Citizen trust in government is built on transparency. As Article 6 says, “… all officers of government, whether legislative or executive, are their [the people’s] trustees and servants; and at all times, in a legal way, accountable to them.”

There will be efforts in the upcoming legislative session for change, to increase accountability. The ACLU is behind those efforts.

Absolutely essential to reforms is making mandatory the awarding of fees and costs to plaintiffs who prevail in public records and open meeting cases. Currently, such awards are discretionary on judges’ part, and few awards are granted. That discourages people from pursuing public records requests or fighting to keep the doors of public meetings open.