Vermont's governor and secretary of state say they disagree with Attorney General T.J. Donovan's recent decision to charge those who take photographs of public records while inspecting them.
Donovan's new policy came in response to the Vermont Supreme Court's ruling last month that, while government agencies can charge members of the public for copies of records, they cannot charge for merely viewing the records. According to Donovan, those who use their own personal devices, such as a smartphone, to take photos of the records while reviewing them are essentially requesting copies.
But Gov. Phil Scott and Secretary of State Jim Condos say they understand the Supreme Court's decision quite differently.
"I don't agree with the position that the Attorney General's Office has taken on this," said Condos, who, like Donovan, is a Democrat. "I don't think it's right to charge a member of the public for taking a picture of a public record with their device."
According to Rebecca Kelley, a spokesperson for the Republican governor, Scott believes the Supreme Court's ruling means "we cannot charge for inspections." She added, "If copies are obtained during that inspection without the use of staff resources and no actual expenses are incurred, we would not charge in that scenario either."
Kelley said the governor would work with Secretary of Administration Susanne Young to make clear to state agencies and departments within the executive branch that they should follow Scott's interpretation of the Supreme Court decision, not Donovan's. The governor issued a verbal directive to that effect Tuesday morning during a meeting with his cabinet, according to Kelley.
Vermont courts, meanwhile, will continue to abide by a June 2015 directive allowing members of the public to "photograph court documents using a telephone or other photographic device" without charge, according to state court administrator Patricia Gabel. The courts were unaffected by the recent ruling, Gabel said, because it applied only to executive branch policy, not the courts' own rules.
The debate over Donovan's policy, which is likely to land in the legislature in January, has major implications for those who seek information about the government. While the state's Public Records Act promises access to many official documents, state and local officials frequently charge hundreds — and sometimes thousands — of dollars for the time it takes government lawyers to redact sensitive information. Such expensive costs can prompt members of the public and the press to withdraw records requests — or opt against making them in the first place.
That could have happened when, in 2017, Burlington resident Reed Doyle requested access to body camera footage after allegedly witnessing police officers use excessive force on a group of young people of color. The Burlington Police Department first denied Doyle's request and then, on appeal, said it would charge $220 for the staff time it would take to redact portions of the footage.
The ACLU of Vermont sued the cops on Doyle's behalf, arguing that he should be able to view the tape for free. Washington Superior Court Judge Mary Miles Teachout disagreed and ruled against Doyle, but the Supreme Court reversed her decision in September. (The Vermont Press Association, of which Seven Days is a member, filed a brief in support of Doyle's position.)
Writing for a 3-2 majority, Chief Justice Paul Reiber argued that the legislature clearly distinguished between copying and inspecting documents when it wrote the Public Records Act. "By its plain language, this provision authorizes charges only for requests for copies of public records, not for requests for inspections."
Donovan's office responded to that opinion with the new policy, which prohibits the use of personal devices to capture images of records while viewing them. "Any requester who elects to inspect public records shall not make electronic copies or photographs of the inspected records unless the requester is willing to pay applicable charges," reads the policy, which was first reported on by VTDigger.org. "This prohibition includes, but is not limited to, the use of scanning devices, thumb drives, cameras, or cell phones during inspection."
In an interview Monday with Seven Days, Donovan argued that he has the authority to charge for a copy of a record — even if his office isn't the one providing the copy.
"If you want to inspect records, have at it," he said. "But if you want to copy them, per the Supreme Court's ruling, there will be a charge assessed based on the staff time and other type of resources expended to get those records ready for inspection."
Noting that the Supreme Court had ruled that government agencies could charge only for "requests for copies of public records," Seven Days asked how taking a photo with a phone constituted making such a request.
"I don't think you have to expressly make a request to make a copy," Donovan responded. "If you make a copy, then those reimbursable costs now can be applied." He added, "If this fight is going to be over the word 'request,' then I guess we do need clarity from the legislature on this."
Donovan said he had not developed a specific proposal for the legislature but indicated that he would like to get out of the business of complying with public records requests altogether. He suggested that the legislature could create a public records ombudsman charged with handling such requests in a uniform fashion across state government. Most of the requests his office receives come from businesses and law firms, not the public or the press, he said — taking vital resources away from his office's primary mission.
"I think we need to have a discussion about whether or not you want Vermont's law firm, the Attorney General's Office, to do the legal work for private entities for no charge," Donovan said.