Unpredictable Access To Vermont Public Records Thwarts Civic Engagement

Dec 20, 2016

The public’s right to access government information is firmly enshrined in Vermont law. And while there are successes, citizens also find little consistency or reliability among state agencies who control access to public records. 

And, when problems arise, state law affords them little room for redress. 

Laura Ziegler filed her first public records request because she wanted to weigh in on a proposed rule change about how and when psychiatric patients could be forcibly medicated. 

"I wanted to give informed comment," Ziegler says. "I don’t think it’s enough to say this is wrong and I don’t like it." 

Ziegler recalls that she asked the Vermont State Hospital for its policy manual, but they wouldn’t give it to her. When she went to a legislative meeting about the pending rule change, she told lawmakers what happened. Her story raised eyebrows. With the committee on notice, Ziegler says, the hospital quickly produced the documents they had previously withheld.  

So began Ziegler’s journey of learning how to navigate Vermont’s public records system. 

"The hard part is, there’s bad actors," Ziegler says. "There’s also people who are just doing what someone else tells them to do. And it’s very hard to know what was this person, the commissioner, and what was chief counsel or someone in counsel’s office?" 

"Just trying to access the truth is so overwhelmingly an abuse of your time and resources." — Laura Ziegler, patients' rights citizen activist

Since her first request 18 years ago, anything Ziegler may have learned hasn’t necessarily made accessing public records easier. Through her work as a citizen activist for patients’ rights — especially psychiatric patients and prisoners — Ziegler says she continually gets the run-around: Agencies redacting records that historically have been public. Delaying responses to her requests. Even respondents saying records don’t exist, when she knows they do.  

Ziegler is clear that some individuals have been consistently great about producing records. But overall, she thinks it’s just gotten harder. 

Daniel Bevarly says in that, she's not alone. Bevarly is director of the National Freedom of Information Coalition, based in Missouri. The NFOIC works with 44 state and local chapters around the country to help citizens overcome barriers between them and public records. 

"You would think that in this day of new modern technology that this would be something that ... we would see a gap closing between citizens and their public agencies around public information," Bevarly says. "But instead ... we’re seeing it almost have a reversal effect in terms of broadening the gap between people and their information and their public agencies." 

'We're seeing [technology] almost have a reversal effect in terms of broadening the gap between people and their information and their public agencies." — Daniel Bevarly, National Freedom of Information Coalition director

He thinks that's because the more technology we get, the more data we generate, so there’s more information for public agencies to manage. But “newfangled” technology is hardly all there is to it. 

"There’s a lot of legal challenges, there’s political implications ... privacy issues they have to be sensitive to," Bevarly says. "And at the same time, a lot of the information isn’t necessarily complementary that some people are searching for." 

But the public’s right to search for that information isn’t some sort of perk. It’s recognized internationally as a human right, because it’s so essential to freedom of expression and democratic governance. 

"Clearly the bedrock principle here is accountability, and without transparency, accountability is minimal because reality is whatever they want to spin it as and who’s to say it’s not," Ziegler says. 

She still requests public records, but mostly for other people who are working on patients’ rights issues. The barriers to access she continues to face have worn her out of direct activism. 

"Just trying to access the truth is so overwhelmingly an abuse of your time and resources," she says. 

Other citizens, and journalists from multiple newsrooms interviewed for this story, also cite similar challenges, including: 

  • Some agencies have tried to prevent reporters from photographing records they’re inspecting. 
  • Some charge a fee to prepare records for inspection — when just looking at records is supposed to free. 
  • Estimated fees payable up-front can be high, then appear baseless when records are later provided at no charge. 
  • Responses to requests and appeals often fall far outside the permissible timeframe. 
  • When requests are fulfilled, agencies don’t always notify the requester that some records were withheld. 
  • At least one person other than Ziegler claims an agency falsely or inaccurately certified that certain records didn’t exist — when the requester knew for a fact they did. 

And when faced with such challenges, there’s yet another: Appeals are first made to the head of an agency, and the only next step if questions remain is court — a costly option for the taxpayer-funded agencies, and often prohibitively expensive for both newsrooms and citizens seeking public records. 

Gov. Peter Shumlin’s office didn’t grant an interview for this story. In a written statement, spokesman Scott Coriell defended the current administration’s record: 

“This administration has gone above and beyond what prior administrations have done in regards to transparency and processing public records,” Coriell said. 

Governor-elect Phil Scott says if there is a problem within agencies responding to records requests, fixing it may first require a culture change from the top. 

"I’d like to have citizens making those public records requests have a chance to go through the process with the new administration before trying to fix a problem that, that may not be there under my watch," Scott says. "So I’m hoping they will at least give us an opportunity a chance to prove what we can do." 

They’ll have their work cut out for them. As Shumlin and previous governors before him have seen, technology continues to make public records ever more complex. Meanwhile, the public’s appetite for government accountability also grows. 

Hilary Niles is an independent investigative reporter, data journalism consultant and researcher based in Montpelier.