 Okay, this is Tuesday, January 25th. This is Senate government operations, and today we're going to be listening. We're going to be hearing about the issue of when records become public if they might end up in the juvenile court where they will become confidential. So there's some tension around that, and this was brought to us by the Attorney General's Office. Since we deal with public records, we'll deal with the part of it and we deal with law enforcement. We'll deal with the part of it up to where they enter a court system, and then judiciary will look at that. But before we start, I want to say that I've had some notes lately about participation and how people are not able to participate and watching on YouTube is not necessarily participation. But I would say that we have four groups of people. We have the committee and our staff, and we're the ones that actually are taking the testimony and making the decisions and dealing with the bills. Then we have people that we've asked to come in as witnesses for us, and today we have a number of those people with us. Then we have people who might be observers, but in the room just as they would be in the committee rooms if we were in the State House, but aren't necessarily participating, they're observing, but in the virtual room. Then we have that whole group out there that has the ability to watch it on YouTube. Whether they do or not is their choice, but I've had complaints that they're not actually able to participate, but I think the assumption is that if somebody wanted to participate in a conversation, then they would contact the chair and the committee staff person and be invited to come as a witness. I just wanted to make that clear that I think this has opened it up to a lot more people being able to see how we do business, but not necessarily just participate. So the other thing I would remind people is that we don't use the chat function except for Gail, who can use it with somebody refers to a report or something. She can use it to post the link. I have had a suggestion that those links should be put on the committee documents for the day afterwards so that people because once the session is over, the chat disappears. So Gail, if you do post links on the chat, if you would then put them in as part of our documents for the day's hearing. So any questions about any of that committee? Okay. So let's start. We heard some testimony last week. We did not hear from Sheriff Anderson. We didn't hear from Marshall Paul, but he's upstairs. He's in house judiciary upstairs. We'll wait for him to run down the stairs to get here. But Sheriff Anderson, would you like to start us off here on the how what we heard the other day is that law enforcement has different approaches to giving out records and how do we give out a record that could end up in juvenile court where it is then, or family court actually it's called now, where it is actually confidential if it's already been released. So would you want to tell us about how you handle that and where you think we should go with this? Thank you Madam Chair for the record, Mark Anderson, Wyndham County Sheriff. Records requests are one of those things that are incredibly technical. I have learned in my short time as Sheriff. And to the points I've actually since become educated on the issue that Department of Public Safety was dealing with. Ironically, I ran into a very similar situation the day after your last hearing and was able to apply some of the knowledge and what I would consider overlaps or gaps in our current state of law. I agree with Finisher Sherling's position that there's obvious issues here. And I also spoke with Mike Donahue and understand his perspective. I don't know if I can forecast a way forward, though I think identifying ways that we, or places where records are released might be a possible point to look at. Because right now my public records are evaluated under the public records law, as well as under the when it comes to criminal violations, whether in the juvenile or criminal court, as well as under requirements set by the judiciary's administrative rules. So for example, we've been instructed by our state's attorney not to broadcast and press releases of blood alcohol content for a DUI because it could unfairly prejudice a jury. So we have about four or five different documents we need to review when making a consideration under any public records request. And the difference of all of our partner agencies, such as the Department of Motor Vehicles, it could be the Attorney General's Office with regards to diversion documents and a variety of other places. It's just that this is a very wide open hole about information. I think it's appropriate that we, a possible way that we deal with this is that in consideration of age, we could say that public records requests can be denied for people under the age of the youthful offender statute just broadly until it's handled through a process. We could have an administrative process that could review these and ask that it would not be a burden, a cost shared by an agency that holds the records, but potentially like a magistrate could make an evaluation on what should or should not be released in a certain timeframe. But I don't have the answer, Madam Chair. So could you just deny all requests for anybody under whatever the age, I mean, it's an increasing age now. We understand that, but could you just deny them on that basis? And then if it ends up going to criminal court, then it's a public document anyway. And at that point you could release and if it goes to family, then it's just not releasable. Right. Certainly that's one avenue. Not to say that maybe even an extension of the timeframe for which we submit a public record or have to respond to a public records request. For example, most court processes are gonna occur within six weeks. There's times where that could be extended, but generally speaking, let's say it's gonna be eight weeks. If I have the opportunity to delay my response from the typical three days, three business days to say three months, then that would give me the ability to follow up with with a requester of public records. If I have question as to whether something should or should not be because they're gonna potentially be going into a youthful offender program or diversion. You couldn't just deny it. We could deny it, but the recourse of the requester would be to file suit in the civil court and whoever loses that suit is responsible for the attorney's fees. So I could potentially under current establishment of public records law, I could be responsible to pay thousands of dollars of fees simply because I'm trying to protect the identity of a juvenile. Yeah, I was thinking of if we actually changed the law so that law enforcement didn't release until the determination of whether it went to criminal or family, then you would be in compliance with the law. So there wouldn't be. Anyway, Brian, did you have a? I do. Senator Calmore, I mean. Thank you. And it's kind of off topic, but when you mentioned it, Sheriff, I kind of went, oh, I didn't realize that. So is it just the policy of your department not to release the results of the BAC or is that a statewide policy? So I'll say it's a policy of my department in action, not necessarily in writing. We've just instructed deputies not to do that. That was recommended by the Wyndham County State's attorney. My understanding is that many state's attorneys agree with the reading of the administrative rules from the Supreme Court. So I would not be surprised if that were broadly applied. I can't speak for other agencies though. Because I have seen on printed reports where someone's blood alcohol content will be disclosed and I like in it, although I realize it's not exactly the same as someone's speed. In other words, if someone's on the interstate and they're going 96 miles an hour and that's released and a press release, does that also not influence a jury later on to say, well, Jesus, God was going 96, he must be guilty. I think it's a, my opinion is it's a strict reading of the administrative rules by the state's attorney's office and their obligation is to notify agencies of things that could potentially prejudice. And I think the keyword is potentially. So while we've agreed not to release the information at our state's attorney's request, I've also asked her what happens if we do it. And her response to me was, well, you, that's your prerogative. So do you release the speed at which a vehicle was traveling? I'd have to get back to you on that, Senator. Okay. Just so Senator Callum or perhaps Jay Pepper could just answer that one question right now about whether other states attorneys do that. So for the record, James Pepper from the department of state's attorneys and sheriffs. So I am the public records officer for the entire department, all 14 states attorneys. And they're, so you're dealing with somewhat conflicting areas of the law. The exemption for, and I should just say the exemption for adult court is that we will not release records that could potentially interfere with enforcement proceedings, including the prosecution. And that's based on one VSA 317-5A sub one. However, there is an exemption to the exemption, which says that all records related to the initial arrest shall be public. So there is some conflict there. And that's where the state's attorneys when they file charges certainly aren't gonna release records that might prejudice a jury or might spoil a case and have to get it transferred to a different venue. But all records related to the initial arrest are public and that's more of a law enforcement question. And there's a little bit of play in the joints there as to what records actually have to be released and which ones will could interfere with enforcement proceedings. And it's really kind of a case by case analysis but we try through our department to add some consistency to the 14 offices by having all records requests run through the department and through the public records office. Okay, thank you. Thank you. Thanks. So I believe that what we're dealing with here is the law enforcement part of it. So I don't, where are we? If ever do you have any more words of wisdom for us? Well, it's the law enforcement aspect of this when a criminal case or I mean a juvenile case is probable and that's the problem is that you don't know how long an investigation might take. You don't know how long whether the state's attorney is gonna refer to diversion which would then initiate a confidential process. And so, right, Sheriff Anderson is right that there's this potential gap here and there's a number of ways to fix the problem. And it's not even fixing the problem. It's offering more clarity to the people, the custodians of these records when they get these requests. And Sheriff Anderson threw out a few possible examples of ways to exempt this. I think it's important to remember though that the facts of the case could interfere with the proceedings, true. But what I think is most important to remain confidential for juveniles in particular is not necessarily every detail of the case but the name of the individual and the information that could interfere with the law enforcement proceedings. But some basic information about the case could be released for the case that led to the letter from the Attorney General's office to this committee. There was some information about the crash that could have been easily released. It's when you start releasing the names of the individuals that you start seeing these collateral consequences and long-term consequences of that information. So I don't have a solution for you but I think that there are ways to proceed that would alleviate some of the media's concern about knowing what's going on in Vermont and being able to report on that but also them protecting youth from these long-term implications of being involved in these incidents. Committee, do you have any? I guess I am looking at this very simplistically and it seems to me that a solution is just in the public to make an exemption for all arrest records for anybody who is under a certain age that the name and certain information be exempt from public records. And I don't know if you have to put in a qualifier there that unless it goes to criminal court but it certainly when there's a question of whether it might go to diversion or family court that why wouldn't we just make that an exemption to the public records law? Anthony, Senator Polina? I agree with what you said. I was gonna say what's the problem that we're trying to solve because people are saying, well, we don't have a solution. It does seem kind of simple that we would simply say that, keep it out of the public record until such time as it goes to criminal court. I mean, it sounds, I don't know, it seems like I would guess that I understand why the media and others want this information but I think as a community we have a shared desire to shield kids from damaging information that may not prove to be guilty. Senator Clarkson and then Senator Caldmore but didn't Commissioner Shirling say the other day that many law enforcement just say juvenile name withheld and then don't release a lot of what the information is that could be potentially damaging. But anyway, Senator Clarkson and then Senator Caldmore. I would agree with you. I don't, I'm not sure that there's a problem bigger than you've identified. I mean, I think it should be not shared until there's action that requires it to be shared. To be a public record, I think it needs to be protected until a point where it doesn't need to be protected or where it's required not to be protected. Senator Caldmore. I'm trying to recall Madam Chair whether there was a carve out for the 10 big crimes or not. I think there was, but I'm not positive. You mean a carve out about them going to juvenile or criminal court or in terms of the record? Releasing the name and the age of the alleged perpetrator. I guess you'd have to say at this point if someone was a, I don't know, trick or crime or accused of five murders. I thought we said that there was a list of 10 and that those would always be released. But it was the other ones that we were more concerned with perhaps staining somebody's reputation later on. But I could be, I seem to recall that as well. I don't remember the list, but there's a list of 10 or 12 things. Yeah. Well, there are the big 12, but- Yeah, pepper sent them to us. Yes, and I would be somewhat concerned about carving those out in terms of the juvenile just because there are some of them that are for example, lewd and lascivious with a child could be two youngsters. I mean, two kids within a certain age span and that's lewd and lascivious. And do we really want to, and then the definition of lewd is so bad that it says to be lewd. So, I mean, I would be concerned about carving those out until it's decided if they're really horrendous crimes, they're probably gonna go to the criminal court. If they're extenuating circumstances, they might go to family court. What do you, pepper? Well, everyone is correct. The youth between the age of 14 and 22 that commit the big 12 criminal court has original jurisdiction. So they're filed in criminal court. So they are public. Okay. And so I don't think you need to do a special carve out for that because that's under the jurisdiction statutes of the juvenile court. They explain the kind of various ways that cases get cited or who has jurisdiction. But really, I think this comes down. The question that really, I think the committee needs to struggle with is what if there's a delay between the incident and the charging decision and what happens during that delay? It could be months where law enforcement is investigating what's going on and there's intense public interest in an incident and how much of the record should be disclosed at that point prior to charges being filed or delinquency petitions being filed in family court. So, Senator Collomer. Yeah, and I think James is spot on there. I guess what I'm wondering about Madam Chair, when you say we wouldn't release, are we talking about just the name or the age or the town in which this person resides? And in other words, we have to decide how much of the information should be withheld and how much should be made public. And of course, the other thing is, and I realized that this committee will have absolutely no way to prevent this, but on social media within, be honest, within 24 hours, everybody knows who it is anyway. Yeah, you're right about that. So, Sheriff Anderson, did you? Yes, thank you. Senator Collomer, just to follow up, I looked at a couple of our past press releases and we do indicate the speed. So there's discrepancy in terms of what numbers we do and do not report, but I have not been given any instruction not to report speed. So we've continued with that practice. To the point, I do want to encourage the committee not to look at this as a law enforcement specific issue while we are certainly in the limelight in most of these things, especially an investigation of significant community interests. Part of the concern I have with this is what role does the Judicial Bureau play in this? What role does the Department of Motor Vehicles play in this? Yeah. And I can say, okay, well, I do not have a public record to this, but they could say, well, here's all the information anyways. We know that the person who got the ticket for driving over the center line based on law enforcement's press release that says a juvenile's name withheld, we know that that ticket was issued while the Judicial Bureau could release that information as well, which then just ties everything back together when we are trying to shield views from having this history hang over them. But Pepper and Chris, Eric, correct me if I'm wrong here and Tucker, but if we made an exemption, if we made that the public, the record involving a juvenile with the name so that the only thing that would be released would be the nature of the crime or whatever it was, and juvenile name withheld. If we made an exemption, wouldn't that also apply to the Traffic Bureau? I mean, if it's exempt, it's exempt, right? Tucker, is that right? If you were to amend one VSA section 317C5 to make it so that the initial record was related to the arrest of a person and the charges were exempt when they related to a juvenile, that would be applicable to all public agencies in the state. Right, is that your understanding, Pepper and Commissioner? Yes, I mean, we're all reading from the same statutes, yeah. My only question, and good to see you all again. Thank you, good to see you. For the record, I'm Deputy Commissioner, Christopher Herrick from the Department of Public Safety. Would that, and I would be up to you, would we also be talking about non-criminal records such as crash reports? I would think that anything that could end up going to juvenile or family court would be, whether it's civil or criminal, but that's a decision we have to make and hear from people. And I know Pat Gable is with us, but and Pat, I think that the courts have their own rules around confidentiality and the release of records. So we don't wanna get into that necessarily just because I know that judiciary is going to be looking at this also. Yeah, I would say in our public access to court records rules, we include as exempt from being accessible any categories that the legislature identifies. And so the way our rules are different is our rules are different from the Title I public records law. But if you put in substantive law that certain information is confidential, then we incorporate that into our rules. And so I think if you wanted to include, for example, if you're worried about the Judicial Bureau, which is not a criminal court, but you wanted Juvidal's names to nonetheless be withheld, then you could adopt a substantive statute about that. And then our rules would incorporate that. And then we would under our rules we would then keep that confidential. What we like to do is we really like to understand the public policy. I think I might have testified to this before. We're following what the legislature does and trying to have our rules be consistent with the public policies that the legislature follows. There are certain procedural aspects of our rules that are unique. But if you identify that the names of Juvidal's as a matter of public policy should be confidential and not subject to a public access request, then we will follow that. Sarah Colomar. Thank you, Madam Chair. Not that this is either necessarily the answer or an aid to get to the answer, but how is Vermont stacking up versus other states in this regard? Does anyone know? If I got pulled over and I was 16 years old in Massachusetts after killing somebody in an accident, would my name get reported? If I was in Texas, would it get reported? Shame on you. I know this question came up last time. I mean, I don't know what other states are doing, so I can't answer you directly, but I can tell you that the problem that we're trying to solve is an interplay between two state statutes that we have. The 5119 and the Juvenile statutes and the 317 and the public record statutes. So it is, and our public record law is modeled on the federal law, federal FOIA law. So I mean, it's kind of a unique situation. So I don't know what other states are doing, but I can tell you that the problem that was originally raised about what to do with these records is a creation of the interplay between two of our state statutes that might not be similar to other states. Okay. Tucker? The last time that you all got together to discuss this, I did write down that you were curious about what is happening in other states, and I started to do research into that. Vermont is among the seven most protective states in the country. However, it's not a one-to-one comparison for the reasons that the state's attorney just pointed to. The Public Records Act in Vermont doesn't deal with custodian ship directly. And in a lot of these other states, the custodian of records who is responsible for responding to a request may be designated under an individual statute. So in these other states that are equally as protective as Vermont, you may have, for example, the court being the central custodian or repository for the records that you're concerned with. The issue that is before you is that you have two separate potential custodians of records that have to abide by two separate statutes. And that is where the tension is coming up. So as you're considering your solutions moving forward, you've already brought up potentially exempting under the generally applicable statute, the initial arrest records. You may also want to point to who is going to be the custodian of the records as they go to proceedings. And that would alleviate the burden on the arresting and charging agency. They would be able to apply the exemption and say we don't release records that apply to this age group or to these details about individuals who are arrested in this age group. And then custody of those records would transfer to another public agency, potentially the courts, where the determination is made as to where the case will be brought. And then there is a clear path for access to the records. And then in the Vermont public access to court records rules, we do identify custodians of records that are in the court's possession. And as we get to digital records, they're mostly me, unfortunately. Does that make sense? What Tucker said is to exempt, if you exempt the initial arrest, except for, I guess the, I don't know how much you would release, does it make sense then to transfer that custodianship to the courts? So the courts, once something comes into the court in any way, we become custodians of those records in terms of the court files. And so my question for Tucker would be, do you mean, for example, if someone wanted to request access to the record, that rather going to law enforcement, for example, they would come to the court? Is that what your suggestion is? Yes, my suggestion is to state clearly that the court in this case would be the official custodian of those records. So if a law enforcement agency had the initial arrest and charging records, it would be transferred to the court and the courts would determine what to do with them from that point on. And really the statute would just be alleviating the burden on the public agencies that are subject to the Public Records Act because a statute could expressly state that they are not the custodians of these records. Senator Rahman and Senator Clarkson. I'm just wondering if that creates like a rite of action or a culpability, let's say the family was really upset that another agency released the name or information, are they then able to sue that agency because they released the records when they shouldn't have? I'm just curious what it means to be a custodian versus to unlawfully now or just against protocol, release the records if one actor did that. Tucker? I do recall that there is either a rite of action or a penalty associated with the unauthorized release of confidential information. And I wish that I could recall offhand what that statute is so that we could pull it up. But this discussion came up in some of the research that was done by the Public Records Study Committee back in the day. And you'll notice that it is inconsistent in the exemptions because many of them were adopted prior to that study, but many exemptions are now tagged with the duty clause, shall keep confidential to make it clear that the public agency has no choice and they are bound by confidentiality. And it likely points back to the statute related to the unauthorized release of confidential information, which might even apply to the individual officer who releases the information. But again, I can't recall offhand. Senator Clarkson? So I sort of like the idea. I mean, the two custodians at the moment are the courts in the Office of Public Records. Who are the, because we have a whole chain of custody. I mean, the chain of custody and it can't get immediately to the court. So you have a chain of custody with the officer and then the department and then you get it to the courts, but that takes, you know, maybe hours or days. So there's a chain of custody all along the way until it resides in its final place of custody, right? I mean, it's, so you have to have rules for the whole chain. Well, I might have misunderstood Tucker, but I thought that he was saying that if you, if we choose to exempt from public record requests, right, the initial arrest record of a juvenile, that it would then immediately become lodged with the court. Or that they would then become the custodian because they're the ones that are gonna decide whether it goes to juvenile or criminal. Did I misunderstand that so that there is, it would immediately become, so Mark arrests somebody tonight and the paper calls him and says, who was that? He says that the court is now the custodian because it was a juvenile. I said, am I making this simple? I understood it differently, which is that if you decide that's not a public record, then if someone calls the arresting officer and says, what's this person's name, that the arresting officer would cite the statute that says that's confidential and that it doesn't come into the court until the prosecutor, for example, files it. And at that point, it is a record that becomes part of our system. And once we're all digital, I would become the custodian of that. And so then the reporter would call me up, I'm interested in the record and then we would look and say, oh, we can't release that particular record because it's exempt under the law because you identified that as a confidential record. So I think, and Tucker can correct me because this is his idea, but I think what happens is until it gets into court, it's really not accessible by law. So the arresting officer no longer has a responsibility to disclose it because right now maybe there is a responsibility of some kind. And so that means that in the so-called chain of custody that you're talking about, anybody along the way can just cite the statute because it doesn't really become effective until it becomes a part of a court proceeding. So I don't know, Tucker, is that the way it works in other states? I'm not familiar with that law. That is the way it would work out and what I proposed as an option for the committee to consider, it would be exempt while it is in the custody of the public agency that's subject to the Public Records Act until the point that the court proceedings begin and then the statute dealing with those court proceedings would say that the court becomes the custodian of those records. So just to play this out if you are the arresting agency, the arrest is made, you have your records, a request comes in at that point, you respond and cite the exemption and you would continue to be responsible to respond and cite the exemptions up until the point that the proceedings begin and the court takes possession of the records. At that point, if a request continues to come in to the arresting agency, their response would be that they are not the custodian of the records and that the request should be submitted to the courts. Oh, yeah, I get it now. Mark, Sheriff Anderson. Tucker, thank you for that explanation. I think that clarified a lot for me. Thinking of that solution with a potential edge case scenario let's say that I have a group of teenage children who partake in something that's of questionable legality and we are not sure if charges can stand. We send it for review to our state's attorney's office and ultimately we're notified that they're not going to press charges. Would that notification then indicate that the exemption no longer exists? The exemption would continue to apply while it is in your possession. The piece about custody would not come into play if it's not referred to the courts. Great. Just want to clarify a little bit. The way it works now and would work then and Tucker can correct me if I'm wrong. If we have the record and there's a request we have to acknowledge the record but we're citing the exemption and not releasing it but we still have to have collected it and if there's an appeal in a suit it goes to a judge. So the record still needs to be produced in that case but we would cite the exemption. We currently do that now for a number of cases. Is that right Tucker? That sounded right but I was having audio problems. Okay. So. But I think, because I think Chris commissioner if I am not wrong here I think currently there's less likely for a suit if the statute is clear that one of the reasons we have the suits I believe is because of unclear language and also unclear intent of what the intent of the legislature was. And in this case I think the intent is to protect those people whose lives could be irreparably damaged by just having something come out. And that isn't to say that there are victims if there were victims lives haven't been damaged but if it goes to criminal court that will come out anyway. So. I can't speak to the motives of why somebody files a lawsuit challenging the exemption but I will say that it's probably the case that with any new legislation there will be some challenge to it to see what the guard rails are on it. You're right, I'm sure. Senator Colomar. Thank you Madam Chair. I'm just trying to understand what the commissioner said. I think I got it but I just want to double check. So something happens that rises to the level of an arrest whatever that may be. The facts of the case are that such and such a thing happened on such and such a date at such and such a place at a certain time but you would not necessarily go beyond those facts when you issued a press release if we continue along and so it would just be that a juvenile and I still kind of want to get Madam Chair to the part where are we mentioning age because that doesn't necessarily identify anybody. Do we mention where it happened because that doesn't necessarily identify anyone? So in other words, it could say a 16 year old from Braintree was involved in a fatal accident and the rest of the facts as Commissioner Herrick mentioned are still in place. It happened at such and such a time on this road and here's the results of it. Is that what I'm understanding? In my world, we wouldn't say a 16 year old from Braintree. We would say there was a fatal accident on Route 23 at four o'clock on Wednesday unidentified juvenile was involved. Let's just say for argument's sake that the police report stated that so and so and so and so the parents were called to the scene for whatever reason. That information would also in this circumstance be exempt because it would point to identification. Right. I... Yes, Senator Clarkson. Yeah, I think anything that identifies a juvenile or their parents would be protected. Well, Senator Colomer is right that within half an hour of it happening that the neighbors will have it on their Facebook and it'll probably... Not necessarily. But in lots of cases, believe me. But we can't control that. What we can control is our public agencies and how they respond to protecting juveniles. That's all we can control. Right. Senator Colomer. I guess my point, Madam Chair was if you take Chittenden County as an example there's thousands of 16-year-olds from Chittenden County. I don't think by disclosing someone's age you've necessarily made it an identifiable sort of fact. I mean, you could just say, for that matter you could just say an unidentified juvenile from somewhere in Vermont. You know what I'm saying? Right. I don't understand why there's reluctance to at least mention an age. In Chittenden County, that might be true. If you're talking about Wind Hall, there aren't very many 16-year-olds. And so if you said a 16-year-old from Wind Hall it probably, people would start guessing who it was. If you said an unidentified juvenile and didn't say where they were from. So a juvenile. Just a juvenile. Yeah. Well, I think you say an unidentified juvenile. Well, but the juvenile is identified to the police. It's just, it's unidentified to the public. Yes. So you could just say a juvenile. But I think a juvenile who's 16 and redding it could be the only 16-year-old in redding. Yeah. Okay. I understand. I think that that's why when you have, it's like if you have, when you have hospital reports of, what do you call those unanticipated incidents? That's not what you call them, that the wrong leg is removed. All right. It has to be aggregate reporting because everybody knows who that happened to. So it has to be aggregated. So what if we designed such a draft of a potential bill? And then asked for people to comment on it. If we could, then we would have some language for people to respond to. Does that make sense? Yes. No. Okay. So what do we have in there? Anthony has a question. Oh, Anthony. I'm sorry. I just, I want to be clear. I mean, I think what you just said is fine, but what's the role of the judiciary committee in this? I thought I didn't know whether we were writing a bill or a judiciary is writing a bill. I'm just curious what that, what's happening there. Well, we may not, judiciary may not, since we're looking only at the pre-court. Not enforcement, right. They're, well, we're looking at pre-court. So we're looking at the judicial bureau or the traffic bureau and DMV and law enforcement. The judiciary committee may or may not do look at this. I think that when Pat Gable was testifying before she had some other issues. And I think the commissioner did also around just public records and the court system in general and that we needed to have some further conversation about that, but that doesn't necessarily mean that we shouldn't go forward with this. Does that make sense? Yeah, no, yes, it's fine. And I just have a quick question for Tucker. Tucker. The courts that are the same are subject to the open, the information act just like the other agencies are. They're not subject to the open records. No, and I think that Pat has given a wonderfully concise explanation as to why, but the court has constitutional authority to adopt its own rules relating to the administration of its records and it has exercised that authority in adopting the access to court records rules. I don't know if you wanna expand on that. Yes, and I think I might have mentioned it last time, which is that from a constitutional point of view, the Supreme Court has that authority and what the rules do is divide the records up between administrative records and case records. And in the administrative records section of our rules, we essentially adopt by reference the public records rules in title one with some exceptions, but in general, because administrative records in the judiciary are not terribly different from administrative records anywhere else. So even though it's a constitutional authority, again, we're trying to follow the public policy that's set by the legislature for the state. Then there are case records in that we are completely unique and therefore the case records are adopted by the court often in reference to other states, how are they handling case records? And in our rules regarding case records, we have a reference back to statutes adopted by the legislature that specifically identify information that should be confidential. And so we have references like that both and I think it's rule five and rule six. And one of my jobs under the new rules is every year I have to do an inventory of the changes that the legislature makes and what is and isn't confidential. So, and I would just add the judicial bureau is a part of the judiciary and therefore the court access to court records rules also apply to records in the judicial bureau. Oh, I see, Marshall has joined us. Marshall, I don't, did you just join us? Yes, Senator, I just joined you. I'm sorry for the delay. No, no, no, that's for the House judiciary. We understand you are upstairs. So what we've been talking about here, committee, I'm gonna just try and bring Marshall up to speed here and then he can comment on where he think what we're thinking about. We are consider, we're gonna have Tucker do up a draft of what could be a bill or could be part of another bill that would make any initial arrest record of a juvenile exempt from public records request. And then it would also, as soon as there was a, as soon as the record or the charge or whatever got to the court system, then the court would become the custodian of the records. So if Sheriff Anderson arrests somebody, he is under the obligation to keep it confidential. And then once it goes to court and he is continually tested about releasing the record, then he says, I'm no longer the custodian, you have to go to the court. That's what we're considering. So I can jump in right at that point and say to me, that sounds very consistent with, you know, our sort of a consistent implementation, procedural implementation of our existing law on the confidentiality of juvenile records. To me listening to the first day of testimony, and I apologize that I was not able to listen to the testimony earlier today, but listening to that first day of testimony about this issue, it struck me that the issue was probably not with the juvenile confidentiality laws, so much as coming up with a procedure to make them, to implement them in a way that made sense and that worked. So to me, that sounds perfect. That was in fact, similar to what I was going to propose, though the added, the piece of that that's added to what I was going to propose is making the court the custodian of the records once the case moves to the court, which is even better. I just hadn't thought of that. So I support that as a plan. I think that it's important to make sure that we, that whatever happens, and it seems not, I'm not saying this as criticism of the proposal, I'm saying this just sort of by way of further explaining my support for that proposal, is that, you know, the really what's important is that until such a time as someone has decided, you know, typically a judge has decided that a case belongs in the criminal docket with the full publicity that's attended to that status, that as long as the case is still presumptively a juvenile case, that we be keeping those records, both of arrests and of court confidential. And there's actually a lot of good research about how the confidentiality of juvenile court records is particularly important compared to adult court records, which are obviously presumptively public. And it's been tied a lot, you know, one of my favorite actually, one of my favorite studies of this came out of I believe Ohio, and it was a matched pairs study between kids in one Ohio County that were being prosecuted as adults in criminal court publicly with, you know, arrest records and newspaper articles and everything else. And compared to another County in Ohio where everyone was being treated totally confidentially because in Ohio, there are much more county-based system so they can even have those kinds of distinctions county to county. And it's one of the few longitudinal studies of delinquency prosecutions and the different ways in which delinquency prosecutions affect kids in the long-term. And one of the records that I thought, or one of the points of data that they looked at that I thought was kind of a brilliant way to look at this is they looked at five and 10 years down the road, how many of these kids were filing tax returns because that was public information and it was information that they could get their hands on and it's sort of an indicator if you're filing a tax return that you are at least to some degree a pretty functional member of society. And they actually found real, you know, huge disparity between the kids who were treated confidentially in the juvenile court and the kids who were treated publicly in the criminal court in terms of how many of them went on five and 10 years down the line to be tax-paying members of the community. And so, you know, my only point by bringing that up is to say that I think that some people look at this issue of confidentiality and, you know, media reports that identify children as being sort of not that important, not that critical. But when you look at what it really means to not just sort of the process for these kids but to their eventual outcomes, you know, looking down the line, it's really, really important. It is, you know, that's a factor that will make a difference for a number of kids in terms of whether they're able to really get past that adolescent, you know, maladaptive behavior that causes kids to engage in juvenile offenses or whether they go on to, you know, really develop that maladaptive behavior into what we would consider to be, you know, adult criminogenic risk and adult criminality. So I say that again, not to suggest that anything needs to change from the proposal that Senator White just outlined, but really more to explain my support for it. Thank you. And we're sorry we didn't let you propose it because we would have loved that, but. Oh no, you did, you came up with a better proposal than I had, so. No, well, it was Tucker, it was Tucker. Well, he came up with a better proposal than I had. Can I just suggest that we also make it clear that there, I was just thinking about this, that there can be no adjectives in front of the word juvenile. It can't say a female juvenile or a black juvenile or an Hispanic juvenile. It has to be juvenile. And I don't know how, I don't know that we can say that in legislation, exactly Tucker, but I think that we need to make that clear. And I agree with that. And I'm not sure how to legislate that, but I, especially in some of our smaller counties, there's certain adjectives that just the adjective alone is really identifying. Particularly if you strung a couple of them together, if it was a black child from the town that I lived in up until last year, Waterville, Vermont, which has only got 600 people in it, that would identify the person right there. And so I think that's important to just to, and that's, in all of the work that we do, we have to be more careful about how we present disaggregated data in Vermont than they do in other states, because we see that pretty commonly where there's, such a small population that any, even if we're not identifying a child by name, any status or indicator can actually be very much identifying. Anybody else? So if we were to get this written up, Tucker, do you think that you can? I promised Mike Donahue that we would not do this on a Tuesday again, because the Tuesday is when all the weeklies are under their time constraint for publication. So next Thursday maybe. Okay. And I would say that let's send this out to the media, the state's attorneys, the sheriff's association, who else shall we send it to to get input and then we'll take testimony on it and try and maybe wrap it up. They seal you? Yes, Senator Callum. I couldn't, Brian and Anthony are so close together and Anthony, you're sitting on this side of your screen and Brian's on this side of the screen. So when your hand comes up, I'm not sure which one it is. I think that was Senator Callumar. Thank you. We spend all day together, Madam Chair. That's why Senator Cunha and I are so close. I guess I'm always trying to capture all of the law enforcement folks. And I never know whether that means the police chief's association, the sheriff's association, you know, the troopers, I mean, there's so many associations. But I think they all should be contacted. Yeah, I think the state's attorneys definitely should. The sheriff's association, police chiefs, the police association, because that's members, that's not the chiefs. And then DPS, VSP, I guess that's kind of it for the law enforcement agencies. And then we have, I would think we should contact the media and maybe ACLU and we'll get a list together and make sure. Commissioner. If you send it to me and probably to Pepper, we can get it to all the law enforcement agencies. Wonderful, thank you. Okay, great. Senator Polina was next. Oops. Senator Polina was next. No, I'm good. I was going to mention the ACLU and the media as well. I'm fine. Thanks. Thanks. Senator Clarkson. Thanks. Yeah, I think Key is, I think you've covered it all, but I have an additional thought and it just has evaporated. So there we are. What can I say? I just think it's important for local, you know, local police who, who, you know, particularly from small communities, it would be great to have one person who represents that crowd way in. I think that the police chief's association and the police association are probably the people who would represent them. No, and I appreciate, Marshall, your study, the longitudinal study. I wish we could afford to do more longitudinal studies in this state every time we enact something that would have really profound data like that because we know intuitively that juvenile arrests have huge impact on people's lives and whether you keep it confidential or not. We know the outcomes are just varied by a bunch of different factors, but that's great to have that study. And if you ever felt like sending that link to that study to Gail, we'd appreciate it. I can certainly do that. And I'll say, you know, it's not just Vermont. Those longitudinal studies are very difficult, complex and expensive. And so honestly, that study, that Ohio study, which was called, gosh, I'm blanking on the name of it, but it was essentially a simplified by saying a study. It's one giant data set from which many studies have come. And it really is the gold standard in juvenile justice because it's pretty much the only large longitudinal study that compares similarly situated juveniles who went through a juvenile court to the same population of juveniles going through an adult court. And as far as I'm aware, it's the only study like it in the country and it's used extensively. Pathways to Desistence was what the data set was called. And then there's been a bunch of studies that have used that data set. Took me a minute to remember the name. Sorry, what was it called pathways to? Desistence. Sort of the opposite of recidivism is desistence. You desist from criminal behavior. Oh, yeah, it's not used often. No. So Marshall does, oh, I'm sorry, Senator Rom. If you wanna stay on that line of questioning. No, no, no, go ahead, please. I just couldn't recall if we've heard from the DMV and I feel like they're coming up a lot as the entity that can like this question. In some cases, they released, I just wanted to flag that. Yeah, actually, that's a great idea. We need to hear from them. And I just, Marshall does legal aid ever represent youth because I know that one of the issues they have is how criminal records affect so many of their clients. You know, my experience is that legal aid is not representing youth in criminal court. We're in delinquency court, but they certainly, we've worked very closely with legal aid. They represent youth in school related stuff. So actually that's, I primarily my interface with legal aid is when I have kids who are charged with stuff that's gonna also result in school discipline or expulsion or suspension and they'll represent the kid on the school side and I'll represent them on the court side. But they very well might have some input into this. And in particular, you know, I would say, well, I'll leave it to legal aid to pick up who's. Okay. All right, well, we'll notify them and see and we'll get, I'm not sure who at DMV, if it would be Wanda or Mike Smith, maybe, but we'll definitely notify them. Pepper? I would go with Mike Smith. We've been speaking with him in our juvenile justice stakeholder meeting about a related issue. Okay. Senator Clarkson. So the other two, you know, just as we're thinking broadly about this, Ohio has me thinking broadly, which is unusual. Diversion, it strikes me that diversion should also probably weigh in on this because they do a lot of, you know, redirecting people's lives in many ways at its best. Well, we can hear from diversion, but I'm not sure that if the once it goes to diversion, it's confidential. And so if we're keeping it confidential before that. Right, but they may have some experience with, anyway, it just struck me that diversion would be an additional voice in this, but maybe not, it strikes me that they are rolling with me. We could ask them if they want to get involved. I don't want us to go too far into the programs that are offered and how they're offered, but to keep it relatively narrow, that's my thought here. I don't know, so that we're talking about initial arrest records. Yeah. DMV definitely has to be here, so. Right. Okay, anything else, committee? I think that's a good talk. Thank you, Tucker. Before you move too far along, I just want to make sure that I have the important policy decisions down as we start moving forward on this. And the first that I want to peg down is whether you intend to have an exemption for all records related to the arrest or because it was part of a lot of your discussion, whether this is going to apply to specific information within those records. And there's an important distinction in the Public Records Act between those two. What do you think, committee? I think that there definitely will be pressure to say there was an accident with an unidentified juvenile, or with a, yeah, with a juvenile, but that's about it. I don't know that we can keep the entire record exempt, but what do you think, committee? I keep Senator Collomer. I really didn't understand the distinction that Tucker was trying to make. Okay. If an exemption applies to the record in its entirety, then no information from the record is released whatsoever. It's referred to as a categorical exemption. So if a request comes in for the record and it says specifically in the exemption that these records are exempt, it's withheld. So your thought is that it would be that the record isn't exempt, but any identifying information or potentially damaging information that potential for damaging information in a subsequent trial. That those things be kept so that you wouldn't say that a juvenile had a BAC of point one, two. You would just say, accident, arrest, whatever it was for, and a juvenile involved. Is that where you would go, Senator Collomer? I guess I was under the impression that the alcohol content of the blood was already not part of the arrest record. So I don't know that we need to get involved at that level. I was just not having no identifying characteristics of the juvenile that was charged. Okay. Senator Polina. I agree with Senator Collomer. Thank you. Senator Clarkson. I would agree sort of. I was actually leaning into keeping it all confidential, but actually I think those basic facts would be okay. Senator Ron. We have time to think about it. Senator Ron. Yeah, I would agree. And I was just thinking you can't keep like the make of the car confidential. You know, there's a lot of things that it would be just too challenging. So. Well, the make of the car is very identifying. Right. Well, but how would we tell them not to do that? Will you say on any information that could identify the youth? Right. Oh, so we can cover it. They couldn't identify the car. They could just say a car. An accident which involved a car and a tractor or. Okay. A car and a snowmobile or a car and a whatever. So let's give that information to Tucker that we don't want any identifying information, but we don't want a categorical exemption. Yeah. I don't think so. I will put a few options together for the committee and as we go over them, I'll highlight some issues that come up when you exempt information instead of records because then what happens is the tests that are applied by the public agencies will ultimately determine the scope of what is withheld. So we'll put a pin in that because depending on the request and the event in the context more information could be withheld or less. The last piece is we brought it up earlier. The clause that is sometimes appended here and shall keep confidential. Do you want to impose that duty on these public agencies to keep the information confidential? Or is this exemption going to be subject to a balancing test between the public's interest in the information and the individual's interest in privacy? Confidential, all of it, I think. I would start with shall be confidential and we can change it from there. But Senator Collomer. Thank you, Madam Chair. Tucker, can I ask you who would be in charge of deciding whether it grows to that level? Would it be the same public agency? Talking about this specific, oh, you're talking about the balancing test. It would be the records officer for that agency. The records officer would be the one making the decision in that balancing test. And if you want, I can send you some cases where the Supreme Court has looked at the duty to balance those interests. And when specifically there's an overriding public interest that outweighs individual's interest in privacy. Okay. Okay. Yeah, that's good. Senator Clarkson. So, Tucker, are you finished with your questions for us? Because I have a question for you. Are you done with what you need? Yes, Senator Clarkson. No, you just, and I just, I'm embarrassed to say I didn't know the answer to this. You said in Vermont, after you said we were one of the most protective of juveniles in the country, one of the seven most protective. You also said we had two custodians of public records. And I just was thinking, my God, we have masses of custodians of public records. How can we, you say we only have two? And so I'm curious what the two are because I think of lots of different places that could be custodians. So who are the two? So when we were discussing that, I said two in the specific situation that we were looking at, you're right. You do have many, many, many custodians of public records. And the issue that I was pointing to was actually that the Public Records Act procedures are put on the custodian of records, but our Public Records Act doesn't define who the custodian is. It doesn't define the term custodian. So you have simultaneous custodians for records. In that instance, there are two. In other instances, there are maybe dozens that are all custodians of the same set of records. Right, that's what puzzled me, so. And so your proposal has two custodians of record in these cases. Is that? Until the point that the case is referred to court in which case there is one, which would be the court. Okay. Cuttucker, are you the custodian of our Public Records? I am not. You are all individual custodians likely. I'll put likely as a tag on there. I am the records officer for the Office of Legislative Counsel and occasionally provide legal advice to other agencies. Thank you. That is right, that is right. But we are our own custodians. Those of us who've had FOIA requests have appreciated your wise counsel. Yes, we have. We have. So any more questions or comments here on this? And thank you. Thank you. All right, and we'll hope to hear from next Thursday. We'll hope to hear from Marshall and Pepper and Chris Herrick again and other people on this. We'll make sure that we have a robust discussion so that everybody gets heard. And then, okay. Okay, thank you. Committee, is there anything else that we need to address? Did anybody have any elections issues that they didn't get on the list yet because I'm going to finalize it tonight? That is some list that you've created. Unbelievable. I've got more now. Some of them, I have to say, a couple of the ones that came from the Secretary of State's office, I didn't even understand what they meant. So I'll put them on there and we'll see. They can explain. Yeah. Well, I have to say I'm proud I only gave you one. That's because so many other people had multiple ones and your list was already so long. I only added one. I feel so proud of myself. I am happy though, that we decided not to attribute the suggestions to anybody. That was my first thought. And now I'm very happy that you convinced me not to do that. That was a good idea. Senator Collomer. Thank you, Madam Chair. I appreciate you're getting back to me with respect to the mail I got from Herb Ogden who has asked a lot of questions about the new statute regarding the moving of potential, moving of town meeting day and the mail-out dollars. I don't know whether I even have time to read all the questions, let alone answer all of them. I don't know what to do. You know, I will respond to him. Okay. Thank you. A lot of his questions were, I think that, I'm not sure if he just didn't understand that school districts are a municipality. So if you have five towns, five towns in a school district, that is a municipality and it's separate from the five towns. So he spent, there were a number of questions about so what if town X decides not to send out their ballot and the school district decides to send out their ballot? How come town X doesn't have to? Because they're separate municipalities and I just, I, so the school district acts on its own. It may or may not have any, over the years, what we've done, I think as we've conflated town meeting with school meetings and as a result, people are really confused that, because when Act 46 went into being, whether you agreed with it or not, what a bunch of our towns were saying is we're killing town meeting and I said, no, we might be killing school meeting in the individual town, but we're not killing town meeting, they're different. And if the only reason people go to town meeting is for the school meeting, then we really need to look at what towns are all about. So I think he spent, there were, he had I think about 25 questions on there. And I think that a number of them were related to that, to mixing up towns and schools. So did other members of the committee get that same email? Well, Herb, I've looked, Jeanette, and you and I had been working on that with Jeanette. When he first emailed, and I think I saw his additional emails. No, he just sent. Was it just you and Brian? Well, he sent it to Brian, Brian sent it to me. He, it was in, I remember the whole list of questions and answers that he had had with the town, with the secretary of state. So he had his question and then the secretary of state's answer, his question and the secretary of state's answer. So I'm not sure that there's anything to do with it, because the secretary of state answered all the questions. I think the one thing that is not on the elections list that I am putting on there is having the conversation about school elections and town, because they don't follow the same guidelines. But Jeanette, it's natural that people don't think about it because for many of us who are in supervisory unions or we have been voting Australian ballot for the school budget, for the high school budget for years and it's on the same ballot as all the town stuff. So it is, people don't necessarily separate them. Right, right. But so it's not, it's never presented as a separate thing. So it was when the elementary school was just Woodstock and they did the school part of town meeting and then, but now of course they don't because we're now all even more one district. But so it's easy for people to think, not think about schools being separate municipalities because they isn't a separate vote. Those votes are taken on town meeting with the rest of everything else we vote on. Well, sometimes our union district, our supervisory union was not on the same ballot. Our supervisory union met at a different time and passed a budget and then they assessed the towns. And I only brought it out to not necessarily, I didn't mean to cast any aspersions on Mr. Ogden. I mean, he could hear that he could ask those questions. It was sent to the three Rutland County senators and Elizabeth Joy Sullivan, who's his house rep. But I just wanted to mention my appreciation to the chair for taking it up. Right, well, he emailed us a while ago with a person. This was a separate email. Yeah, and this was, I didn't get them, right. Keisha, did you have a? Yeah, sorry, I didn't bring in this up earlier. This is a separate topic. Tomorrow, when we talk about the DPS modernization plan, I know at one point you had said, you wanna make sure people can testify who are impacted by these kinds of decisions from communities of color. It doesn't have to be tomorrow. I just didn't know if we're putting it on the docket in the future again and inviting a wider circle of people to testify. But I know Mark Hughes would like to say something. And I was gonna ask if possible, Ashley LaPorte has been a major racial justice activist and put in a letter opposing the plan to when the docket was open. So I was gonna see if there are a couple other people in the circle that I let know about the hearings that also wanted to be heard on the issue. My guess is that they won't be heard tomorrow because tomorrow what we need to do is walk through so that we understand what it is, but I would suggest that they listen. Okay. So because then they will have a sense of what's presented to us and the questions that we ask and stuff. So they'll have more clarity on what it is that's being actually presented. And then we definitely will be taking it up because we have an executive order. I don't quite understand the way they work is that if one chamber objects to it by April 15th, then if nobody, if neither chamber object by April 15th, then it just goes into effect. If one chamber objects, then, and my thought is that we would not be either objecting or accepting it exactly the way it is, but that we would be taking testimony and working on it. But the way I understand it is for some reason the governor's office said that in this case, both chambers had to object or it would go into effect. And I think that is not the way executive orders work. So we'll, Senator, Brian. You are spot on, Madam Chair. In the first year of a biennium, the governor is able to introduce executive orders, which if one of the chambers does not approve, it fails. If both do, it becomes, well, it has the effect and force of law. And we have 90 days from the time it was sent to us to act on it. So you are correct. And I believe that's April 15th. So my position is not to just say either yes or no, but to look at the details of it and see if any of it makes sense or if not. And just for your information, I will say that I have introduced a similar bill at least twice. So... We have discussed this in this committee at length, but the elevating to an agency and a way to bring in all these little higgledy, all this vast patchwork of law enforcement on umbrella. I don't think that there's any intention of bringing in all law enforcement under the local or sheriffs. I don't think that, I may be wrong, but I don't think that that is any executive order. I thought this was all... Well, we'll find out. Yeah, we will. And I think that, yeah, it's a huge issue. And one of the problems, I'm just gonna throw this out with the Department of Public Safety is that you probably know that the statutes never mentioned the state police. There's nothing in the statutes about state police. There's just the Department of Public Safety and the state police grew out of that. So there's this association that, in fact, the Department of Public Safety is the state police and that that's what they are. And I think that one of the attempts to make it an agency is to emphasize more the other functions of it, like emergency management and fire and safety and the academy. So I think that that's, but I'm going up to the state house tomorrow morning and I am grabbing my files on law enforcement that are about 13 inches thick at this point. So if anybody wants me to grab theirs, I'll have them sent to you. Sure. Someone's gonna mail me one or something. You can find it. Well, you don't have any files yet. Okay, but are they still, they're gonna mail a, not a file, is that like the book, someone mailing the book? No, that's title 17. Okay. No one's. If there's no- If you put it in my desk, Madam Chair, that would be great. I will, if you want me to, I will go into your drawers and your desk and see what I can find on law enforcement and have Mike send it to you. There might even be some Twizzlers. Oh! Oh! No, they're red. That's true. Madam Chair, I did bring back my law enforcement records. I was so proud of myself, but I did not, I cannot find my title 17, which I may be on the top of our filing cabinets, right by our desks, right by our chair. I'm gonna look for all of them. Anthony. Mine has my name in it too. Anthony, you found yours, didn't you? Yes, I took it home with me. I took it home with me. That was so clever of you. Why? Because you're clothed without it. I know. Brian, John Bloomer volunteered to take yours home, but if I'm gonna send you law enforcement files, I'll stick it in there with that. Thank you. Yeah. Well, I hate to be without my masons. Oh, yes, a disaster. Oh, it is a disaster. So I'm grabbing it. Becca has been using it up to this point, but Bloomer's gonna get her another one that I'm gonna get. I have a copy. If Becca wants to borrow mine, mine's in my desk. Oh, it is. Okay, I'll tell her. Yeah, because I bought one when it was in the house. They're expensive. I know, but I love mine. Yes. Oh, they're very useful. John Bloomer once said, when we're sitting in the chamber, he said, I always hate it when Senator White takes out her masons because he's gonna ask me a question or do something. So anyway, so anything else, committee here that, so I will get the elections list done up tonight. I'll put everything in there that I can think of and I'm sure other things will come up. And I got some more today from senators. So. Well, you did good outreach. And then we'll start looking at it. And I think that we're gonna do elections on Thursday of this week, I believe. And what I'd like to do then on Friday or Thursday is just have a little discussion about how we should organize that list in terms of taking testimony from people. And some people are gonna wanna comment on every one of them. And we might wanna look at things that on the list that are, for example, there was one recommendation, I don't know if it got on there or not yet, was to allow 16 and 17 year olds to vote in state elections. That's a constitutional issue. We can't do that. So we might as well just cross that one off. I wouldn't add it. Well, I'm putting everything on the list. I'm putting everything on it, right? Okay. I'm not going to make any judgments about it, but I think that we could go through and look at things that we really either don't have time to take up or are beyond, like that's beyond us. We can't do it anyway. So, and cross those things off.