 started. We're going to do that. Is somebody coming down to the baritur? Oh, okay. I'm just here. No. Yeah, I guess so, or the reporter is up who we usually ask for. Probably have four robber player. That's very sweet. Yeah, they're not very sweet. Oh, no, I'm not the reporter of the bill. That's who. Yeah. Okay. Um, I think it was robber player. Okay. Um, and there weren't any issues with it. And Carol Ross said we could call her if we needed to. Okay, so we'll just go to nine 10 then. All right. So um, we don't have any nine 10. Yeah, we did. We had that. I think we do. Yeah. And what about we were real? Did you get did you get the one I sent you on Wednesday, right? Yeah, that's a person. I suppose it's like our folder. I have. Oh, by motion, I thought it was. Yeah, it is. No, this is a longer dinner. Yeah, the one I sent you on Wednesday. I have the initial here. This is much nicer. This is much much prettier. Oh, thank you. I have something about it. You know, that doesn't sound. Thank you. Thank you. Oh, okay. Thank you. Okay. So we're going to have additional language from ACLU. I don't know the pressures. Yes. They would see you stay out submitted some additional language. Do who did it submit to get out. Can we talk about it? Is that the court decision? No, I don't know. Here we go. Yeah. Yeah, we got that. All right. So let's first look at the language from the Public Utilities Commission. If you want to look through that with us. Yeah. Catherine folks, I'm great favorite with the public utility commission. And we're proposing a small change for a small addition to 910, which really has to do with our electronic document filing system. We're one of the first agencies, probably the only agency that has an electronic document filing system at this time. In the future, obviously, most agencies will move to a digital filing format. What's happened is we've gotten a request to turn over all our records that are currently in our electronic document filing system, tens of thousands of records, as you might imagine, in paper copy all of them because the individual does not want to use the electronic document filing system. And we've offered to help him, offered to set up a console, and he does not want to do that. There may be a lawsuit. We've refused to do it so far. There may be a lawsuit. We don't know. But in the meantime, we thought this is a problem that could be clarified rather easily by just putting in this addition to 910, which basically says, you know, if you have an electronic document filing system, some people need to use that in order to see the documents. That's all we're trying to do. Anybody have, Chris? I would just be sensitive to the idea that while it's common to have a computer, not everybody does. And I wonder if what you would think about the idea, I think you sort of alluded to that. Providing a console. Yeah, I'm fine with that. If you can't get it from home, you could come to the computer. We have that already set up, but yeah, that would be fine if you wanted to put extra language on that. Does that make sense? I'm sorry, I'm going to have to, yeah, I'm sorry. I don't understand what you're talking about. I will. I just came in late. Yeah, I'm happy to talk to you. We just decided to get going here. I guess I would ask for Helena, except in the case, is this underlined what you're thinking of? This is the actual comment. Except in the case of a quasi-judicial agency, why would we agency? You don't have to limit it to us at this time. Yeah, it's fine. Except that if the agency maintains public records on, I would just cross talk that. We already say that you don't have to. If you don't have them in the format that the person wants, you don't have to. You don't have to create any of those records. So did you hear this a little? Yes, so the only change to any proposal would just be the agency. It doesn't have to be quasi. But also that we would require some opportunity for people to come use a curable already. To view the records electronically at the office. At the office. Just some, I think there needs to be an access. Yeah, there are people, if you'd be kicked out of there, well, the library could only get 15 minutes on libraries. And that's it. We've been here for hours, bro. Thank you, folks. Well, yours is better than we know that. All right. Does anybody else in the room have any problems with that, just with that section? Yeah. I think I would want to discuss that with Secretary of State. Is that off the top of my head of thinking, especially as it's expanded to all agencies, it could really infringe on the ability of folks who don't have access, or who for whatever reason, you need to look at things on paper rather than on screen, the ability to monitor what their communities are doing. So I'm not saying that we're necessarily pro-testing, but I would want to talk it over with them. All right. Thank you. Anybody else have issues with this section? Gwen? Just questioning. Gwen Zachary of the LCT just how this would apply because agencies would also include all municipalities, large and small in different types. So just figuring out how this, if they do have things in electronic form and how that would impact their records and their obligations with dealing with exemptions and those sorts of things. So I just need to run it by our principle. What if we just made it maybe fulfilled by allowing, I guess, yeah. Maybe fulfilled. Well, this is why we limited it to quasi-judicial, but... Right, no, no. But if we say maybe fulfilled by allowing, so then somebody says, well, to you, it says I want it in paper. And you say, no, no, I'm fulfilling it. Yeah, that's fine. All right, I'll try. But the shall maybe starts to get to Jenny's point of view. Yeah. If it's maybe, at least, I don't know. Right now the person gets to choose paper and they wish, you know, it's actually, I believe, that's so. Our records aren't in paper at all. So we don't even have to, we'd have to hire someone to go through and print them all out. That's the problem for us. We don't have paper. We want it turned over. We just don't have it anymore. And I wonder if somebody like Colchester, who had heard from Colchester in South Burlington, they're putting all of their records online and they would have the same problem when somebody came in and said, I don't want them all on paper. Because the town clerks. Brian? No, I'm just trying to thread the needle. I guess many does help someone, of course. All right, so we will put that in as a suggestion, in a suggested graph. And Helena, would you like to join us and go through the suggestions that have been given to us by the, or would you rather have the ACLU walk us through there? I think I can sit together. I just want to make sure that it's been the talk on this last section about the shell to May and I want to make sure everyone's on the same page about what you want to do. Can we just talk about that a little bit longer? I think May and cross off the quasi-judicial and if they're going to do it electronically, they have to get some access at their office to be able to look at them. I think the issue is just a little more complicated. So just in terms of where the lay of the land is now under the Public Records Act, a person is entitled to a hard copy of an electronic document. And because I missed the beginning of the testimony and I apologize, I don't know if the issue is that we have it sort of on the web and internally they don't have hard copies. No internally in Word or whatever they use and it is the issue that someone is demanding the hard copies because if this goes to May, then that won't solve their problem, right? If it says we may be fulfilled by allowing online public access, then I think that would solve the problem. But if they didn't want to fulfill it that way, it would happen. Right. In our case, we would always be fulfilled that way but other agencies, they don't want to do it that way. For us, we don't even have the paper. Like I was saying, we have to. I guess what you're trying to get at is does the agency have the ability basically to say it's our choice to fulfill it that way and we are telling you the requester, nope, you can't get a paper copy. Yes. Yes. And so by changing Shall to May, all you're trying to say is that an agency that posts it online doesn't have to fulfill it that way. That's right. That's your intent. But they may do it in that and by doing it that way they will fulfill it. A request. Okay. If they do it. So I think that I want to work with the language a little bit more to make it super clear that despite the fact that it says in current law that the part of the requester is no matter what entitled to paper records that this is an accession to that. Yep. That's what we're trying to put in is an accession. So I think the language, yeah. It's all, I can work with them. Okay, great. And I do think that as we go more and more to electronic records and I must admit I like paper, but if somebody comes in with a request and somebody has requested of them all their electronic files, I mean. Yeah, obviously we can print out, you know, a case but tens of thousands of cases that's a whole, we have to hire a company to do that at this point. Yeah. It would be quite an undertaking. It's several thousands of dollars. We'd have to do an RP. It's just an incredible burden on us. But one or two cases, sure. We can still be able to pay easily. That's not a big deal. You okay? Yes. I am. Okay. All right. Well, we'll leave that to work on the language to get us where we think we need to go and then we talk to your boss guy over there. All right. And did we decide that Chloe's going to walk us through this or Helena? I'm happy to do it and then maybe Helena could speak if I mangle the statutory findings here. For the record, I'm Chloe White. They steal you a Vermont. So these are just a few language suggestions for improving Public Records Act. I want to speak particularly the first one. And I've shown where things in yellow are and underlined are what would be changed. I want to highlight first the no fees for inspection and a fee waiver for public interest and antigens. Right now, as you've heard, there is a court case that said that under the so superior court, so not Supreme Court, said that under the law right now there should be no fees for inspection. But some agencies still charge for inspection. Some municipalities still charge for inspection. Some don't. It's uneven. If you are indigent in Vermont and you go to an agency that charges for inspection, there is no way, you have unequal access to public records because there is no way for you to get to a record because we don't have a waiver for antigens. There are other states that have records, that have waivers for both public interest. So this is in the public interest likely to contribute significantly to public understanding the operations or activities the government is not primarily in the commercial interest of the requester. That's from Federal Freedom of Information Act or the requester is indigent and that can be defined as 100% of federal poverty level, 200% of federal poverty line. So we'd like to see both these. We'd like to see no fees for inspection and we'd like to see a fee waiver for public interest and antigens. But either way, right now because the inconsistent application of that court case, in some instances people who are poor can't access public records because they'll get charged for inspection and there's no exemption for antigens to get public records. So that's why we feel these are both very important. This is, it provides a way, inspection also, it's kind of a give and take. You don't provide fees for inspection and then the person has to go to the agency to the municipality to look at things. Both of you have to sacrifice something. So this is where we would, these are our, those are two big suggestions. So regarding these sorts of fees here. On the next page, we, in the next two pages, we talk about waivers of fees. We think that after a denial of, so right now an agency head can reverse a denial by, you know, that's your second step after you get denied the first time by the agency you appeal to agency head. We feel that after you've been, after that denial is reversed, that your fees should be waived. That any fees then should be waived. Now that might be, you know, that might not be palpable and you understand that. But I think even more importantly is that after you win your court case, I think, we think that fees for obtaining records should be waived. You won the court case, you had to go through court, but you're still getting charged for, for these records that you had to fight for. We think that, we think that should be changed. Finally these last two. I put them at the end on purpose because I know that these are probably less palatable. Every other New England State for Public Records Act has penalties for willful or bad faith denials and breaking their Public Records Act. And they can range from $500 to $2,000. So this would bring, right now Vermont just says if the court finds that the circumstances were surrounding the withholding race questions about whether people acted appropriately then they refer to DHR. This would bring us in line with other New England States. And so if in the court finds that an officer, or employer, or other official of a public body or public agency has violated any provision of the sub-chapter willful or in bad faith, the court shall impose against such person a civil penalty of not less than $250 and not more than $2,000. You know, this just brings us in line with every other state in New England that has Public Records Act. Finally, this exemption review and sunset is from Florida. They do this every five years. The exemption shall be repealed unless there is a review and they act to reenact the exemption. Legislature must take affirmative steps to reenact an exemption and must review it to ensure that it is still timely, that it's still needed. I realize that both of these prove a little harder to swallow than perhaps others, so that's why they're at the end. But we think these are important to ensure after any new exemptions that right now an exemption could be justified. In five years maybe the need is gone for one reason or another. And perhaps it's not, but it gives us a reason to refresh our Public Records Act. So those are our proposals. I'm happy to take questions. I know that we're getting to end of session. I know that these are larger steps than others, but we would love to see any improvements to the Public Records Act we can get. I like some of these questions. It is interesting that you thought that the two last ones would be the hardest to digest in my David E.C.S. The last one too. The last one is easy as the other one. It's also that for me one of the questions is in, and I've always had a question in, is in no fee for inspecting, which I understand there should be. But sometimes the preparation to allow somebody to inspect takes hours and hours to redact doesn't, so, and in a, I'm thinking of it in a town, for example, if you had a, if somebody wanted some records, you would first have to make a copy of the record, and then you'd have to redact on the copy because you couldn't redact it on the original thing. So it might take somebody 10 hours to do it. So that, in my mind, that's more confidential. All right. Well, I understand that. Yeah, I mean, you copy, paste the document, you black it out, and you show it on the console, which we're showing here. Well, it's electronic. Right, it's electronic. And I understand that, and I know it's been a source of much to do. And honestly, if you're not interested, I understand, but I would also ask that you don't include any fees for inspections and leave it, leave it. Our preference between those two would be leave it as is. Yeah. No. Any questions for Claudia? Okay. Thank you. I do have an awkward question. You said there was a court that said that there was not to be fees for inspection. Was that Vermont court? Yes. That was by Judge Crawford. Do you remember what year? 2011. 2011. Yeah, 2011. Said that there shouldn't be fees for inspection, so doesn't that sort of mean that fees for inspection are against the law, or was it not a changing dynamic? For the record, Planet Gardener, a superior court decision is not binding, even within the same county. It's not binding. It would be a binding interpretation if it was Vermont Supreme Court decision. And then obviously whatever you did as legislators on the topic would be the law of the land. That would be another way. Okay. Thank you so much. Thank you. So does anybody else have language that they want to offer before we then start looking at what we actually have? Yes. My name's Rama Schneider. I'm from Williamstown, Vermont. And I'll talk really quickly here. My interest here is with the other portion of 910, and that's of the open meeting definitions. I have two things. One of them has to do with the clarification as to whether or not negotiations actually fall under the open meeting law or not. And at this very moment, according to the Vermont Supreme Court, they don't, through a rally, what I consider a twisted decision. Having said that, and the other part is, I'm an absolute advocate for open governments. I feel that it's very important for good governance. For my bona fides, I've been on school board now for more than nine years. I've been on the Williamstown School Board. Now on the Payne Mountain School District School Board. I've been on the Orange North and the Central Vermont Supervisory Union Boards. I've been on one, two, three, four different negotiating committees. And I've chaired the Merger Study Committee that turned Williamstown and Northfield into the Payne Mountain School District. And I've chaired the Williamstown School District and the Orange North Supervisory Union as well as a couple of the negotiating committees. And plus I have a lot of personal interest in this that I have hounded the Secretary of State's office and attorneys in all about issues to do with the open meeting law. And I just say that in the sense, I'm not just, you know, I didn't just make up stuff. This is an issue that I have really, you know, felt important and I studied it. The negotiations, I'm not sure the clarification. There's a proposed new language in there as far as how to define the open meeting law. Actually, if I may go to my phone here and which one is it. So in the proposal where it says definitions and one, business of the public body means the public body's governmental functions including any matter over which the public body has supervision, control, jurisdiction or advisory power, does that mean negotiations with our staff or not? When I read it, it says yes. I don't know how they get it, well no, I know how they get around to it but between the Vermont Labor Relations Board and the Vermont Supreme Court, apparently negotiations fall under a totally different set of rules. Strictly the staff negotiations. So it's a negotiating committee from the Central Vermont Supervisory Union negotiating council point of view. We're still a public body but when we go to negotiate we can't go as a public body into the negotiations because the Supreme Court has said that's not part of an open meeting. It doesn't fall under the open meeting law and it was either in February, I believe it was in the middle of February they came out with the decision I'd have to go back and look for the exact date. There's two decisions that came out side by side that they decided on that one. This leads to the rather foolish concept that we show up for negotiations, I have to call a meeting to order and then we recess the meeting to go have negotiations come back and it's all about school board business. Every bit of negotiations is about discussing and making decisions on school board business. So I just personally, I'm not personally, I know I'm not the only one but I would like to see some clarification. Something that states specifically, staff negotiations are or are not a part of an open meeting. I don't know the court cases but I think the law is pretty clear. It says that you go into executive session for contracts, labor relations agreements with employees for arbitration and mediation. You go into executive session that means it's not open. First off, they said that it doesn't, because if we go into executive session that means we're meeting under the open meeting law. Listen, I'm not the Supreme Court. Is the Supreme Court said that? Yes. But they're meeting. But you go in, you have to... We recess. We don't go... Then you go into executive session and then you come out of executive session. We have to recess right now to actually leave the meeting to do the negotiations. We shouldn't have a motion to enter executive session. No, we can't. We can't. Why can't you? Because it's not part of the open meeting law and if I do that, the staff contract negotiating team is going to go for an unfair labor practice a suit against us. Sure. That's just... Take that as fact. I feel the Supreme Court really doesn't know what they're talking about. That's why I'm asking for the... If they say... When you get to the... If you go back and look at the Supreme Court decision, I don't know which one you're looking at. Yeah, that's... Every union knows it's different. Yeah, that's the one that made the decision and then they tacked on a second one on that and said, well, we don't have to decide this because we decided the other one. Yes. Okay. All right. So we get that. Okay. Thank you. And just for further clarification, we don't have to go into executive session. The board needs to find a purpose and we need to decide on a vote. Right. Okay. So that's... I just really... Frankly, I would prefer if you kept negotiations part of the open meeting law, but if you do or don't, even with the new language that's being proposed here, if that got through, I would be suggesting to my district that we go back through a court case again to test this because it would have to come out with a whole new interpretation because the wording gets changed on what's in open, what is the business of the board. The other part has to do with... I believe it's item number four on the open meeting. It's about if a quorum of a board attends another public body's warned meeting that they don't have to also issue a warning. Although the bit about the... If you just get together for social events, that makes a lot of sense to me. But when we go to... As a board member, if you go as a quorum to another body, you're usually going there to conduct some sort of business either to listen and possibly to discuss and exchange ideas with another board. I think... And there's nothing wrong with putting out a warning. Anybody can type up a warning 48 hours ahead of doing something. And in this case, a warning just simply says we'll be at a such-and-such meeting such-and-such place. What if a select board didn't give you that much warned while I guess they have to warn? I just wonder if there's... I mean, it would be... If you're invited to testify at a select board, for instance, you'd be on their public meeting. If you go as an individual... Right. Well, I mean, if it just said, like, we won't hear from the school board. So it would be an agenda item that they notice. We're not going to get to a perfect situation on all this, so it's always a matter. And you mentioned timing, which is an important one. We have 24 hours' notice to give for a special meeting, which really isn't anything special. It's just something outside of the normal scheduling. So if it were to come up like that within 24 hours, I personally do not feel it would fall under the definition of an emergency meeting, but by the letter of the law saying, well, we got to be there tonight would be an emergency meeting. That's by the letter of the law. So I think that can be approached, but I just think that it should have to be warned even if you're going to another warned meeting because my assumption is you're going there as a group for a purpose. And the only purpose behind going as a quorum of a board is something about the business of that board. Thank you. That's all I have to say. I think somebody about this Supreme Court case, because I didn't know that, and it sounds very clearly says that they may go into executive. I read the decision when it came out of February 23rd. If possible, I'd like time to it's a long opinion. It's complicated. I want to digest it and give you a good work product instead of trying to remember off the cuff exactly all pieces of analysis. I know it's holding, but forget all the nuances of how they got there. I just lost these pretty clear to me. I can tell you it was subject prior to the Vermont Supreme Court decision to Vermont Labor Relations Board decision and that there, the reason it made it through this far to the Vermont Supreme Court, there's some strong feelings on the issue, I think on both sides. That's fair to say. Any questions on that? Okay. Now let's just look at the whole bill and see where we are. So Madam Chair, if the committee is going to consider the amendments by ACLU, we're considering everything right now. Then we have some comments on opposition to those. Would you be happy to? Yeah, because we, just to make it clear to everybody that we're hearing this today. It's Friday. We have this on the schedule for next week on, I do have it here sometimes. I don't know what I've done with it, but I do know I have it here sometimes. There it is. Next week we have this on the schedule for Tuesday, I mean Wednesday, I guess it's number 910. Yes. No, I guess we're all waiting for Mike to do it in today. But if we don't get it out next week, then nothing. Because once we get it out, it has to go back to the house and they have to decide what they want to do with it. That was set for us. And then, whether there's a conference committee or whatever. So we need to allow time for that. Okay. Madam Chair, members of the committee, Joshua Diamond, Deputy Attorney General. I'd like to start by giving some factual context to why we oppose not all, but many of the proposals by ACLU. And I think, Madam Chair, you kind of touched on some of this, which is the practical reality of how an agency is, in particular, the one that I work for, has to deal with these public records requests. I think there was an inference made at the last hearing, or two hearings ago on this bill, that these very broad public records requests are the exception, not the rule. And I'm not saying everyone is. Often we can respond to a request within the 30 minutes that's contemplated by the statute. Somebody wants a contract or some other readily available information, a budget document from our office. We can produce that. But often the request can be broad and I want to just give some examples to illustrate that point. And these are all examples that have happened within the last year and a quarter since I've come to the Attorney General's office. There was a request from an entity for all communications from nine assistant attorneys general to 30 miscellaneous organizations and individuals including various public officials such as Senator Sanders, various lobbyists, organizations such as the Democratic Attorney General's Association. In order to even just identify what documents would have been responsive to that request, my office had to hire an IT professional to survey all of the various emails and other records. The initial search indicated over 13,500 responsive emails given the breadth of that request. Now when you were able to take away the duplicates, people who had been CC'd, there were still 1,129 email chains that had to be produced responsive to that request. And then because we're a law firm, as many you can appreciate if you've ever done work with law firms, we have an obligation to keep our communications confidential if they involve an attorney client communication or if it represents work product on an ongoing case, there are recognized privileges that have to be addressed and it took over 250 hours of staff time to go through those documents to assess what were the appropriate documents that could be produced or redacted. And so if the mere inspection was a loophole, if you will, to the ability to charge for that time, instead of doing the public's work, the state's work of defending the state or to pursue those who would harm our environment or protecting consumers or protecting the civil rights of Vermonters, we're taking attorney time away from those core functions to address the public records request. Another example that we received within the last year was a request for all records pertaining to the investigation of a particular defendant that was part of a criminal prosecution and in this case this involved claims of tax evasion. So there were literally thousands of canceled checks bank records, not just from this person but from other people where someone had to go through and identify what those records were and had we had to produce those we would have had to go through and do that redaction process. And again, it would have been a very time consuming process. Other types of similar requests was one with which a request for the entire investigative file of a woman who was part of a cold case, someone who has presumably been killed but we don't know that for certain and that request had 15 bankers boxes of records that had to be inventory just to provide an estimate of what the charge would be to tell someone if you wanted to produce these records and figure out what's privileged or not, it took an attorney 25 hours to do that. So I say that within the context of the request that there shouldn't be a charge for figuring out what documents may be responsive and certainly for someone who wants to inspect as opposed to get a copy that there should be a pass and we assert respectfully one that the case law that's referenced in the trial court decision may not reflect the current status of the law from the Supreme Court's perspective. But two from a pragmatic concern while we firmly believe that open government is essential to a functioning democracy and public records are an important part, there's got to be a balance and the balance where does that fall? Should it be on the taxpayer? Because if you can imagine it wouldn't take much for a requester really to shut down an agency by using broad requests and force folks to take away from their core mission and deal with these requests. So I would respectfully ask that this committee not change the current status of the law as it pertains to inspection and fee waivers. Now with regards to those who may be indigent and those who there may be a public interest I think agencies already have that discretion to do so and even though I think the law allows for the ability to charge after 30 minutes of time our office frequently does not do that and provides additional time without charge as when the interests are so justified. With regards to the request for penalties I have not done the research as to what the fellow New England states do it does seem to me that typically when a penalty is assessed that's the state acting in a way to enforce the laws the penalty comes back to the general fund as a mechanism of enforcement this would depart from that standard practice by giving members of the public the ability to assess the penalty against the state and the question I think for such a departure is there a compelling need I would assert anecdotally that the robust attorney's fees that are available for folks the shall the change from made a shall creates quite an incentive for public agencies to comport with the public records laws I think ACLU testified a couple of hearings ago about a $30,000 attorney's fees bill associated with their challenge over some public records held by the agency of ed so I think agencies are very sensitive I think towns are very sensitive and are trying to do the right thing because the frankly the threat of attorney's fees is a pretty heavy hammer that they've got to deal with from a financial liability perspective with regards to the sunset it's an interesting policy question and my office does not have an opinion on that issue so if somebody is I mean it is a deterrent I'm sure attorney's fees but if somebody really active in bad faith shouldn't there be some penalty for them or at least a ding on their personnel record or a I mean because they're that person is affecting not only the is competing the ability to get the records they're also then if they acted in bad faith and it ended up in a court hearing the $30,000 that you had to pay what is taxpayer money that's coming out of they acted in bad faith I mean I think you get it the same place respectfully the person themselves doesn't well I'm not I haven't seen the particular language I don't know if they're making the person individually liable for that penalty it says officer, employer, other official and so the question is whether acting in one's official capacity if it's not a malicious intentional act if it's willful then there's a distinction between those terms one could argue it may fall back to the employer to be responsible for that fee at the end of the day further research would be needed to kind of nail that down I just want to let you know about a provision in existing law and I don't know if based on what you said you might want to look at it or tweak it I think I should provide this to you this is my little copy of the whole public records acts it's just from start to finish I can get you guys copies the existing law says whenever the court orders the production of any public agency records improperly withheld from the complainant and assesses against the agency reasonable attorney's fees and other litigation costs so when the public agency is lost okay and it says goes on to say and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether the agency personnel acted arbitrarily or capriciously with respect to the withholding the Department of Human Resources is applicable to that employee shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who is primarily do you see there's some contingencies there you've lost attorney's fees have been assessed the court makes a finding and has then you know so there's some gates along the way before you get there but there's then it goes on to say Department of Human Resources consideration of the evidence submitted shall submit finding recommendations to the administrative authority shall take the corrective action that the department recommends so and that what you've done is what ACLU has done is crossed all that off and just said says that if the court finds then they are fine and then one last small minute item subsection H of the current bill our office is in spirit on the same page about having a designated person being responsible so that members of the public know where to go to we would just ask that the reference to and I don't have it in front of me I think it's 3VSA 218 that that be stricken so that we have the flexibility to have different people someone who's going to be in charge of records management may be different from the person who would be responsible for your office has made that recommendation but this shall be accountable for the request so it's hard for me to imagine why this is a problem like if they're not it doesn't say they have to go and make the photocopies they just have to be basically one person and we're fine with that and understand that but the person who does we would like the flexibility to have someone who's responsible for records management be different than the person who would be ultimately responsible for the production of records responsive to a public records request what would there be a person in the agent's office because when you talk about before you talk about that there are 18 different places that we need to have one person who is accountable so that people know where to go to hold that person accountable I think we can live with them that rubric or construct you just don't want to insist that it's the the same person it makes sense to be the person who the person who does the records management is also accountable for the records request thank you for your time and consideration where are we I guess we have to figure out this supreme court thing and how and maybe when I think about it and I haven't read it or anything but maybe it's the way we have the business as a public body that has to be in the public except for the things that fall under the executive except for records except for yeah referring to the the executive the ability I don't know I was surprised to hear that I've always thought for snow mountains it says I don't get word there you know the decision again I don't want to go that much into a 20 page decision that's complicated it has by member correctly multiple looks how the law relates to other laws so they looked at a variety of statues and they were looking specifically at school board negotiations with the collective bargaining so a group of what three on each side and the holding was that group of six that was not a meeting of a public body it didn't fall within the definition of meeting but there was multiple elements analysis so I can write you a summary or come back in and just it's fresher and re-read alright so that's one issue that we have to deal with then there is the page 2d the if you're going to with a quorum of a public body it's going to a meeting of another public body should they also warn that they're going to be there that's the issue right and then and then we have the issue of serial communications to address are there more in here that we all agree the process needs promptly and but it can extend to three days promptly can extend to three days no I didn't agree with that so you want to change it on page 5 I don't know what I would change it to it promptly doesn't sound like three days well it means immediately but not more than you can have three days to respond and then we have the issue that the AG's office brought up about who's accountable I still when I read that I don't think it means maybe what deputy attorney general thought I can still see that one person would be the go to person in that agency or wherever that doesn't mean that person actually has to do the work it just means they're responsible for making the work and stuff I don't disagree with that interpretation I'm just thinking about maybe a picture if you got you know three people doing the actual public record search but you got one person who's ultimately responsible I agree with that but it's this person who would like to have some flexibility being different from the person who's responsible for records management that's all so that we have the flexibility to say the person who's going to be ultimately responsible for public records request doesn't necessarily have to be the same person who's the chief liaison with archives and dealing with records retention issues and figuring out what are significant documents that would be archived and wouldn't be destroyed after a difficult Are there any other issues in here? I'll tell you Before some of the ACLU ideas Yeah, and the UC language Alright Are there any of them that we can resolve today? Let's look at the last one here Likewise Helena, if you want to join us Sure Is there a way of resolving that allows them to have a little more flexibility? I think the you know I'm a little, if you want to go along with the idea, I'm a little concerned that if it still says a records officer that itself could cause confusion or amused in Title III and so if you want to just give the flexibility and the idea that it'd be a central point person I would suggest striking records officer designated by head of state agency pursuant to striking all that and just say a person designated by the head of the state agency or department So strike, sorry, strike records officer and strike pursuant to 3VSA 318 assuming you want to go and just say person designated by that agency the agency shall designate a person the onus is on the agency get rid of the passive voice the head of a state agent or a shell designate a person to be accountable for the oversight of and you had suggested for the oversight of oversight of instead of the processing does that sound okay? thank you for your consideration done, one, done alright, super I like the sunsetting idea we have sunsetting records I mean reports now we probably might get to the final over to sunsetting commissions we sunset lots of things and it just means you have to go back and review them just for new ones not the existing 250 we might get to that point at some point to say maybe they should all be sunsetting but no, we don't want to spend another three years doing that Lord okay does anybody have any comments on that no I have a just a clarifying question so the list in title one is all exemptions in the Vermont statutes annotated sometimes there's rule making authority that includes creating an exemption like fleshing out the contours of an exemption in rule would you want that to be subject to the five year look back or just ones in statute just for simplicity I think in statute start with the ones in statute at some point and you know this happens with reports and laws enacted that says not withstanding the five year but I was wondering if you thought there might be potentially an exception if the exemption just tracks what's in federal law sometimes that's why an exemption is created oh I guess we can't sunset I mean you could still look at it and say yep the federal law is still there but just check that it's still there if it started out for that reason I wanted to I think that just as a heads up the only way to properly keep track of this would be that every bill that creates an exemption would then section after it was created would have another section that repealed it and then that next section that repealed it would take effect in five years time in terms of our statute books that would probably be the only way we could really sorry I'm starting to think about the mechanics of this from a codification perspective right yeah yeah I want to I'll check in with my colleagues on this too because it's just a whole codification but conceptually disagree with that so for every exemption created there would be a following or subsequent section that would repeal it within five years that would repeal it and the repealing section would have a delayed effective date of five years that would be the sunset and that would be so one of the reasons I suggested is that you know that's how you keep track of part of how everyone keeps track of what's going on in statute and also if there's a subsequent amendment to it that's more technical sorry I'm getting into logistical issues but okay but I think it can be done yeah it can making everybody crazy we also had the idea of something around no issues of substance shall be discussed where are you I was I think that was Don something about under what is not meant you know under emails around agendas and stuff it was tricky because the construction is all in the negative so you asked me to work with Mike I sent him some language last Friday saying you know is this what you're trying to get at he wanted to be here today but he had he couldn't he said he's available next week and so what I had sent to him was it would be in page one so 3a says what a meeting is this is generally this is what a meeting is and then b is that safe harbor exception however you want to characterize it for scheduling a meeting organizing agenda or distributing materials and I think the fear was okay while you're at it doing those things he wants a affirmative statement this is not a license to stray into more substantive topics so I had suggested to him where it says provided that you fill in and then create two provisos subdivision one and two provided that no other business of the public body is discussed or no substantive business and he thought that's going in the right direction but I want something even more explicit no other businesses discussed comma including and then examples and so he was going to work on some language to send to you but it's not it seems like an artful way to address it and then the other subdivision would be the rest of what falls and then provided that subdivision language of existing law the only problem I ever see was starting to make a list which starts with the word including it's not on that list it's not included no that's not it was but not but once you which is why we don't need it exactly unless the yeah I would not be sure that you start saying including then and that's what you're going to read but we didn't talk about that we talked about this other maybe the simple stated provided no other I think that's what we want to say I actually think that's good enough okay can we talk about D and A2? D or C you're right I think that the way I read this it's pretty clear as long as the public body does not take action on this business the school board about parking lot who's going to pay for the parking lot and who's going to maintain it if it's the school board meeting and the select board attends it three people happen to go but you don't take any action you just it's already warned as a public meeting by the school board with that on the agenda it says we're going to talk with the select board about parking lot and you don't take any action I mean the school board might take action but the select board can't take action until they have a war meeting well and if you do warn it they could take action which kind of would concern me they could take action at that meeting if you both warn it yeah and if I mean the time that makes me think of it is on the parks and rec commission sometimes city council would have us there and the chair would typically go and sometimes a few of us would also go you know and so if two of us went to support the chair they were getting questions from the council and maybe we would weigh in it's not, to me it is about do you make decisions or not yeah the open meeting defines an open public body as being discussion of the business of the public body too, not just action and I do remember when this was over in the house and I gave some testimony about a couple other items that were related to this over in the house and one of the issues that I believe gentlemen from the newspaper was bringing up was the fact that people get cheated out of the discussion behind the decisions if we allow the discussion and action to be kind of separated and this can be kind of frustrating for people like for instance when you see a school board or a select board go into an executive session improperly and then they come back later and they just reaffirm the decision and if people are warned at that time to go to that meeting they never hear the discussion that went into the decision so that's I think part of why there was some concern about that and I get that but I think that if the school board were going to discuss with the select board the parking lot Rob would represent I've had that exact scenario where I was on a select board and we went to the school board to talk about buses whether we're going to continue doing the maintenance or not but we had the discussion the school board made their decision as to how they wanted to deal with it and we went back and the following selected meeting we had the discussion and made an action motion so people knew that the select board was going to be there with the school board because we were on the school board's agenda yes do both bodies warn? I don't believe we did because our intent was just to listen and not take any action and to be honest I'm not sure if we were going to have the form not because we did but I think that we felt that because we were on the school board's agenda that the one language had to be met I have to feel okay with this so now really the issues the PUC language we for inspection changing that and the suggestion here for the CLU and and serial communications we have not and that does not mean the Cheerios talking to the Wheaties I don't know if everybody got the email from the Secretary of State's office that I forwarded about whether I asked whether this had more clout if it was here rather than in just the current law as interpreted by the Secretary of State page three section two that's the Serial Communications so I asked him if because the way he interprets the law now is that this is illegal and he said it does have more clout because it has the backing of statute instead of just his interpretation of what he thought we meant and and then sent an article had been in the Times Argus that very morning about decisions being made in that manner so as I recall Senator Pearson brought up a good example of a road block if you will with City Council how many members are 12, 13 whatever it is and one of the members wants to introduce an amendment but needs to kind of get a feel for how much support I'm maybe not saying it but the only way to become aware of how much support that person might have would be to talk to people or at least show them before the other meeting and I don't know how you get around that certainly that would fly in the face of well it would if you got if you had 12 members if you got to the 7th member it wouldn't if you got to the 6th member that's the it's avoiding trying to win your right it's avoiding a quorum by doing that and it is I mean you probably shouldn't be doing it now I don't know how you guys operate but we shouldn't be doing it in my select board by going to everybody and saying I want you to support me on this will you talk about it by the red truck sort of put some intent language understanding the rationale behind because it's based on that article the practice of that different of pre-deciding as opposed to creating a quorum for an idea is different and the public is cheated more and it just comes out so for example what if our delegation from Madison we all decided we were going to close any bill that does something we would just vote I'll see you decided you better have decided that's the point you're not supposed to decide well it does say reach agreement or take action and it seems to me we do that all the time in a lot of ways the delegation might have a position on a certain issue that's really important like water or nuclear power or whatever it is and we decided we're going to together on a certain issue to leverage something how can I work we can't have a discussion with each other at a meeting what we could because we could go into a committee of the whole and then you could then you have that discussion it's different than being on the floor you could go into the committee of the whole and have the discussion and take testimony and do it that way but I have you been running for election if you run if you wanted to be the secretary of an organization you talk to people well but that's different but that's to come to a conclusion no you're not coming to a conclusion what about if you're trying to run for the head of the secretary anything like that are we really going to pretend that nobody tries to get the votes of the majority to become the president of the council and what is it that you can become the chair of the senate board the meeting goes well people get together fifth was going to be the chair are you kidding no one else showed up at the meeting so you are running you actually want to be chair let's say one wants to be chair you can make sure if it's a five member board you can talk to one other person that's what I mean that is what we're saying I don't think that running the board is the business of a public body yeah I was going to question that too to me it's a different decision than if you allocate $50,000 to buy something that's the business of the body running for and I know it's splitting here and I agree because it does have an effect on the body who's the chair or head of it but I agree with you I don't know how else you would be able to campaign when we talked to one other person it was a five member board and you couldn't ask that person to talk to somebody else right well I'm agreeing with that I mean I just wonder if it's more if it's more productive to say that the public has the right to understand the rationale for the decisions that are made I don't think so and you sit down and say well we all got together and we or we individually all went to look at the red truck or the blue truck but I really liked the blue truck better and so I encouraged the guy at the sales department to come up with the rationale for buying the blue truck and so now we're buying the blue truck what are you going to say when you go to a public meeting to explain your rationale for how you made your decision we do it all the time every time we're on the floor we're debating something basically we don't know how we're going to vote but it's a public dialogue where you hopefully hammer out the issues you present the issues I think generally I'm not aware of it often changing quotes it doesn't this is the quandary the public has a right to expect to understand the deliberation and if there is no deliberation if you're an active official you have the right to organize for your position to prevail I mean I can't neuter somebody because I get a left so how do you get around the fact that and this is particularly true with select boards and school boards and I've seen it happen over and over and over they come in and they make a decision without any real substantive dialogue or it's so choreographed that you know exactly that they've talked about this before and they know exactly what they're going to do and there's no real public dialogue and no how do you avoid that I think that's what he's trying to do here you have the ultimate authority yeah a year later two years later, three years later in our case in our company select board case but that doesn't I mean so the public they can keep making those kinds of decisions for the next year and a half until the next election and then you kick out one of them and then you kick out one of them and then it's hard enough to get people to even run much less or tell them that we're going to vote you out if you do talk to me well we all know the bad behavior that this is trying to address yes the question is how do we eliminate a lot of the work that gets done in every kind of committee there is the question is should that work be being done outside of the public meeting that's the question and what kind of work should be being done outside the public meeting and what should we do so how would this work if you sit on a board with let's say 10 people and the interest or the issue is whether or not to buy the red truck that body could ad hoc decide to create a committee of three or four people to go look at the options available not a corner level that committee is a public body well it's in the public body to go through some work that's fine or even if you remember the public and they'd go down and they'd run numbers and then they would come back and make a report and then everybody gets a shot of hearing to me that works okay but I don't know whether that fits here I would guess under that scenario that if a committee is going somewhere a committee that has people born met or if it's three persons of committee and two of them go they're in violation of this and it's not a work they're shown there again but that isn't any different now this is here this is not any subcommittee is considered a public body I believe and is subject to all of the all of the same things so could I ask Representative Leclerc if they must have talked about this 10 hours oh okay well we don't want to beat that record we're almost there we're talking about this a lot but we were talking about a bit in the other direction if you have like a three-member select board what ends up happening and what ends up happening quite honestly in the real world you know you're running each other in a little local store you know that you're going to buy a new town grader and say the discussions around if you want to buy an extended warranty okay this was a challenge for us as well I know but that's why we do great work and kick it over to you of course let's come back to this let's do everything but this okay but this is the best one this is the one that's going to cause the most angst of anything that we do hmm I don't see how good work I can see what we don't want but I don't see how this plan and I wonder are you ready to go do you want to pass that to Janet? certainly she'll be just fine I need to do it well we have to do the very town charter first we're just going to take us about an hour and a half isn't it well first of all it's very city and I'm very town and we can make this really short yeah we will so those are the issues that we have left to decide on this so since the ACL you list of issues I think that you want to see in the next draft the new exemptions essentially new exemptions how about that then you hadn't decided on the other one well I I don't look at the second to last one had we decided on that I think the leaving the language the way it is so that's a no which one? the one on the penalties because there is a penalty in there when Helena read it it made sense so not accepting that proposal and then on the charging for fees I could see some kind of a waiver for indigent but I'm not sure at this point that we are ready to change the other fee one I mean the court has made the decision and it'll come up again in another case sometime but I could see having a waiver for yeah there so on the top one about not charging for infection that's out that's global I don't think we have time to really vet that the way we should and then this is Chow or May Waves that's Judge Diamond pointed out there already May nothing requires them to charge right now there already authority to waive then there's two grounds provided here so this is only really meaningful if it says only really changes the law that says Chow and so then it would be May so then that means not changing it that's current law they may right now my point is that current law says an agency may charge meaning that they don't have to charge as long as it's not discriminatory or arbitrary in how they charge or don't charge things if we may I mean a defined term in some sense I think you said 200% of poverty is that how there's multiple definitions all throughout the VSA that tries to get at that issue but if you unless you want it to be a Chow there's not really a purpose of including the language because there already is that discretion so we don't have to do that because it's already so we have the waiver of fees the Mike Donahue issue on page one I mean that we have left to decide the serial communications the PUC language around allowing it to we don't have it do you have a PUC handout? yes no I have that but it's not anything do you have one? I don't have a copy thank you if you wouldn't mind going back to it a second I just in thinking about how to write something as clear and what you're really trying to get at so the two subsections I think should be read together right H says standard formats shall be as follows for copies in paper form a photocopy of a paper record or a hard copy print out a big public record maintain an electronic form so that's the standard and then that gets to this right under existing law that if a record is in electronic form you have a right to the hard copy so if you're saying a public agency that has a record electronic form has the option of not allowing not allowing a person to exercise their right to a hard copy but shall provide a place I think it's just this goes back to that whole kind of similar concept we were just talking about just eliminate then the person's right to a hard copy then the agency and you could have a sentence they may provide a hard copy they know they may but then still I think that would just be the cleanest ways and so if you look on the subsection I it says if an agency maintains public records in electronic format non-except public record shall be available for copying it either the standard electronic form or the standard paper format as designated so that's that option that you have under existing law so it sounds like you want to eliminate that option that they got the right to a paper copy if they provided that the agency only has it in electronic form and they provide some kind of a space so if they only have a paper copy we're not insisting that they scan it right this applies to if an agency is available if it's only available electronically they have to give you a term for home space provide you with some kind of access but he did say if it was a case or two and not sort of volumes of stuff that they could print paper but they could still choose that under her language they can do it paper if they wanted to or they could just say all that is electronic to me the construct of saying if it's an electronic you can have the electronic or have paper except we didn't really mean that you guys it's just easier to just strike alright that makes sense to do it that way with the proviso that the person provides a form of access because we do say that they don't have to make a special format so if their format is electronic they shouldn't have to make a paper if their format is paper they shouldn't have to or if it's alphabetical and somebody asks for it by date their format is alphabetical they don't have to create but they don't have to create a new format to provide the information you're frowning and across the Secretary of State if the law says currently if the agency may hand records in an electronic format they have to be available in either the standard electronic or the standard paper so right now you could as a request or choose yeah okay I just realized you moved out from the ACLU without looking at the second page of it oh I thought the waiver in a successful court case I think that's also I don't know that the waiver of fees after denial reversed by a head of agency would make it easier why that would apply I mean if you and they appeal to the head of the agency and they reverse that decision shouldn't impact the fees I don't think I mean I don't understand why it would the last one there's another sort of alright so what the law says about what you can charge for under existing law everyone understands you can only charge after 30 minutes the law says in terms of what you can charge for is um cost of staff time well you can also charge of copies in mailing but gone in staff time that's where the big dollars are staff time associated with complying with a request for a copy of a public record the time directly involved in complying so directly involved with complying there is a superior court decision I'm not aware of any Vermont Supreme Court decision but there was a decision in 2004 in judicial watch case in which the agency tried to say um it was a Governor Dean's documents there's tens of thousands of them and there was a bill that the agency was trying to pass along the requester thousands of dollars for compiling um a bond index which is listing all the records that were going to be withheld or redacted and the court said that time spent compiling that list withholding records is not complying with the request the court really emphasized that we're complying and the only reason I bring that up is I don't know exactly what you can charge for there's so many different activities involved with complying with the request there's the searching I think that's clearly to be allowed to be charged for there's um then there's I think you can charge for reviewing them for relevance and whether they need to be whether the actual redacting which is time consuming or the fact that the public records act says if you redact or withhold you have to identify that and that's very time consuming just whether or not I have to itemize it or not that's a whole other can of worms but um just by using this language any fees it says for searching compiling redacting and production I just want to warn you that by including redacting you're potentially effecting interpretation which I think is unclear right now of whether that can be charged for I'm not saying it can't but just by including that here seems to imply that we think that complying time spent complying with the request includes redacting I don't I don't find this suggested um but what's that favorable you're talking about this one in particular and then the one on the bottom I think the court can other litigation costs incurred and maybe they can include it in that but I would also hesitate to put that in there the next suggestion sorry thank you next I would so really what we've accepted here is the last one that Chloe Bell was going to be the hardest to sell um uh-huh okay so we have that and then we have we've made a decision about the AG's office request that's what we have left to do right and we will do this on Wednesday I thought we took this suggestion the second one on the first page no because it's already they already have the ability to do it they already have the ability to do it correct and um I mean we kind of liked it but they already have the ability to do it so okay so we're going to do this on I think we're doing this on Wednesday on Wednesday and um we will um make a decision after you this is are we going to do the very thing now no we don't have it on here oh it's um I don't know so we'll do this on Wednesday yeah we've got it on Wednesday on Tuesday okay so when you want on that case do you want the um no we have it on Thursday of 245 it's Thursday 245 on the negotiations committee of Caledonia of a Caledonia central supervisor union central application position um do you want do you want copies of the whole opinion no if anybody wants to read the whole opinion sometimes there are attorneys on the committees they like to read the whole thing we we don't have any attorneys on this committee so we're happy to have our attorney is that too late in your process because if you want to react to it in some way do you need something ahead of next Thursday no you figure out if you want I can prepare our summary and send it to us bye yeah we're doing this on Thursday okay thank you