Big Win for Open Government in Vermont Legislature: Attorney Fees Now Mandated for Prevailing Plaintiffs in Public Records Lawsuits
The key provision of the public records reform bill, H. 73, adds an enforcement mechanism lacking since the state’s original public records law was passed in 1976. Citizens or organizations that have to go to court to force the release of a public document, and win, will now have their attorney’s fees and costs reimbursed. The bill was signed into law earlier in 2011 by Governor Shumlin.
Up to now, judges have had the discretion to order reimbursements but they’ve rarely done so.
There is a “safe harbor” escape for public agencies if, after getting sued, they change their mind and provide the requested records. Fees and costs “may” then be awarded at the court’s discretion. Even in such cases, however, a plaintiff is no worse off than s/he was under the old law.
The new law also contains a “redaction” provision. The intent of the change is to emphasize for public agencies that the existence of some confidential information in a record doesn’t mean the entire record can be withheld. The custodian of the record is encouraged to redact the confidential parts rather than refuse disclosure of the entire document.
Legislators avoided immediate action on the 240-plus exemptions that have been written into the law over the last 35 years. There have been complaints that the numerous exemptions weaken the law to the point that it’s viewed as a paper tiger and therefore ineffective.
A legislative review committee was established to review the exemptions with an eye towards weeding out the unnecessary ones and whittling down the ones that remain. The committee held its first meeting on July 27, 2011.
Also not included in the bill was a provision that would have explicitly subjected private contractors such as Corrections Corporation of America, which holds Vermont prisoners in out-of-state facilities, to the requirements of Vermont’s public records law. Currently such a requirement is written into many, but not all, state contracts.
Opponents of such a provision argued successfully that some contractors should be exempt from public records requirements. Legislators said they would take up the issue in a later session.
Prison Legal News editor Paul Wright testified before a state house legislative committee on the need for attorney’s fees to prevailing parties in public records cases, and on PLN’s experiences with public records laws and requests around the country. For example, PLN is suing Prison Health Services in Vermont after PHS refused to release records related to a prisoner’s death pursuant to a public records request.
Prison Legal News and the Vermont ACLU were part of a coalition of open government and media advocates that pushed for the change in the state’s public records law. While campaigning for office, Secretary of State Jim Condos met with PLN and Human Rights Defense Center staff to discuss the importance of public records laws and government transparency.
Allen Gilbert is the executive director of the Vermont ACLU.
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