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Vermont Supreme Court Orders Release of Record Sought by Seven Days


Vermont Supreme Court justices during oral arguments in the case - DEREK BROUWER
  • Derek Brouwer
  • Vermont Supreme Court justices during oral arguments in the case
The Vermont Supreme Court on Friday unanimously affirmed a lower court's ruling that the Burlington School District can release to Seven Days a separation agreement between the district and a former school administrator.

The ruling, while narrow, also endorsed the district's unusual decision last year to sue the newspaper rather than respond to its public records request.

The case began in 2018 after the newspaper sought details of former Burlington Tech interim director Adam Provost's departure in January of that year for unspecified medical reasons. Provost had been on administrative leave for months before he resigned.

A Seven Days reporter asked the school district to provide any separation agreement involving Provost. The district believed the document was public under state law but said that Provost promised to sue unless certain details were withheld.

So the district drew up the legal equivalent of a football punt. Instead of responding to the newspaper's records request, it filed a lawsuit asking a judge to decide what it was obligated to release. The filing, known as a request for declaratory judgment, named Provost and Seven Days as defendants.

The move led to costly, drawn-out litigation for the newspaper over what news editor Matthew Roy characterized as a routine request. "We filed a records request, which we do all the time as the usual course of business," he said Friday. "This was just an inquisitive reporter doing her job."

A Superior Court judge ordered the records released in October 2018 after Provost missed a filing deadline. Provost appealed to the Supreme Court, which heard oral arguments in May.
Justices on Friday upheld the lower court's decision on the same technical grounds, writing that Provost "failed to articulate any agreement, or make any proffer, in the proceedings before the civil division explaining why the [Public Records Act] prohibited disclosure of an unredacted copy of the Resignation Agreement."

The court also opined that the school district's legal maneuver was "entirely appropriate" under the circumstance where it was caught between public records law and threatened litigation by a former employee.

"I think we're pleased with the result in this particular case, but if that became a common tactic, it would not bode well for the news media," Seven Days attorney Thomas Little said.

Seven Days previously filed a counterclaim in the lower court seeking to have the school district pay the newspaper's legal fees, which totaled more than $7,500. Judge Helen Toor denied that claim.
At oral arguments, Justice Beth Robinson asked Little if he thought the risk of having to pay a records requester's costs might deter public agencies from using the courts as a way to circumvent their responsibilities under state records law.

"I think it would have a custodian [of records] think twice before going down that path," Little said.

But Seven Days did not press its demand for attorney's fees to the high court, so justices chose not to address the issue, they wrote.

Little said he had not yet determined whether his client could continue to pursue attorney's fees with the lower court.

Attorneys for both the Burlington School District and Provost declined comment Friday.

Read the order here: