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Judge: State Can't Charge Union to Inspect Public Records

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A Vermont Superior Court judge has ruled that state officials were wrong to charge the Vermont State Employees Association more than $1300 to inspect public records.

Washington Superior Court Judge Geoffrey Crawford issued the Friday ruling. The VSEA — the union that represents state workers — praised Crawford's ruling.

“This decision affirms the fundamental right of all Vermonters to freely access and examine the actions of our government officials," said VSEA Associate General Counsel Abigail Winters. "This will prevent public officials from trying to use exorbitant inspection fees as a means of dissuading the public from examining their documents.”

Attorney General Bill Sorrell said his office has not yet determined whether it will appeal.

"We're still digesting the decision and need to talk to some folks before deciding on what we'll do," Sorrell told Seven Days.

Last year, VSEA asked officials at the Agency of Natural Resources if they could inspect records related to the firing of a wildlife scientist. They also asked officials at the Department of Human Resources to inspect emails and other documents related to the decision to purchase and install computer software that tracks employees' Internet use. In their requests, VSEA asked only to inspect the records, not for the state to produce copies.

Prior to allowing VSEA to review the documents, ANR wanted to charge VSEA $462.60 while DHR wanted VSEA to cough up more than $800 to view the records they had produced. The state claimed the charges reflected the cost of employee time to pull together the emails and other records associated with VSEA's request.

VSEA protested the charges, claiming that state statute does not allow for state agencies to charge someone to simply inspect public records.

The state countered that in today's era of electronic record-keeping it requires staff time to sift through electronic correspondence and documents and print those records out for inspection. In short, they should be allowed to charge reasonable costs to produce the records — even for inspection.

Crawford said he understands the challenges that today's record-keeping may impose on public officials, but he said the statutory language is clear. 

"The State thus invites the court to interpret away the statutory distinction between inspections and requests for copies and allow it to charge staff time for inspections. It would be reasonable, perhaps, to impose a charge for an electronic search and the printing-out of email documents. Except in municipal land records, the days when the job of searching and copying could be largely turned over to the requestor standing at the file cabinet disappeared about the same time as leaded gasoline," wrote Crawford. "Any request now requires considerable staff-time to conduct an electronic search of some kind. Doe this mean that any request now justifies a bill from the agency? The bills in these cases are not enormous; nor are they unreasonable in the amount for the work involved. But they are not minor either and for many Public Records requestors a charge of $500 or $800 would deter inquiry."

Crawford noted that while the state's public records law allows for agencies to recoup the costs of producing copies of records, that standard does not hold true when it comes to producing records for inspection. And, when the law was updated in 1996 and cost-recovery provisions were expanded to allow for public officials to recoup the costs associated with public records requests, the legislature left intact the tenet that officials could not charge to inspect public records.

"Unless the statute is amended further, the burden of inspection is part of the cost of government to be borne by the polity at large and not imposed upon individuals or organizations seeking information," wrote Crawford. "This is not an unreasonable legislative decision. An individual — aggrieved, or a gadfly, or a visionary — is likely to be in a poor position to pay for the cost of her inquiries. But as taxpayers and members of the community, we all benefit from these inquiries because government (like the rest of us) behaves best in an open, public setting.

"The cost-recovery procedures proposed by the State would hamper such openness," concluded Crawford.

Download Crawford's ruling: Download PRRcrawford

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