 Good evening. My name is Jim Kondo. So I'm the Vermont Secretary of State in my 30 plus years as Public servant 18 years on the South Burlington City Council eight years in the state Senate and now 12 years as Secretary of State I've always believed that transparency is the way to develop trust with the people of Vermont and Show that we have openness and transparency throughout Government transparency isn't just a word It's enshrined in our Constitution. It is the law of the land The public has a right to know the public has a right to attend and the public has a right to participate Vermont's transparency laws and they combine both the open meeting law and the public records law Play an important role in ensuring that Vermonters have access to meetings and or records that they are entitled to Ordinarily every other year Chris and I would travel the state holding what we call the transparency tour Unfortunately for the last two-plus years as most of you know the COVID pandemic Forced us to change our way of work Thankfully channel 17 and town meeting TV came to the rescue. I want to thank them personally for hosting us today So now a couple of months past the March town meetings Which saw the election of many new faces the local office We're bringing the training virtually to you as we have done in previous years I am joined today by my trusted deputy secretary of state and transparency guru Chris Winters Who has served in the Secretary of State's office for over 25 years? Welcome Chris. Thank you, Mr. Secretary and hello viewers Thanks for joining us today Trust in government is at an all-time low And divisiveness in the civic process is at an all-time high at least for what I've seen in my lifetime operating openly and Transparenly is the only way to rebuild the fractured relationship between we the people and our government institutions I know firsthand from serving as the chair of my local school board in Berlin and From the many Vermonters and local officials who we've given assistance to on these often complex issues The law can be complex And in my experience most state and local officials are well-meaning public servants They're doing their best to serve their communities Many of you want the tools to comply with the law and that's exactly what this training is designed to do To give you the tools to know the ins and outs of the open meeting law You'll hear us refer to it as the OML and the Public Records Act the PRA Thanks for being with us today and for your interest in government Transparency without further ado, we're gonna get started on today's training and we'll be answering some questions viewers submitted in advance So take it away Jim. Thank you You know, I think the first thing Chris that we should talk about is why are we here? We're here because the public does have a right to know Open meeting and public records laws protect our direct access to the Decisions that affect us by our government agencies and understanding these laws makes everyone a better citizen in government The ultimate boss is the public the Vermont Constitution States chapter 1 article 6 that all power being originally inherent in and consequently derived from the people Therefore all officers of government whether legislative or executive are their trustees and servants and are at all times in a legal way accountable to them And it's it's important to remember this comes straight from the Constitution That's where we get all of these right to know laws and I will add at this point that the open meeting law Statutes and the public records Access statutes both refer back to this passage that comes out of the Constitution. So now we're going to talk about open meetings Who must comply? So the public bodies of the state and its municipalities Which are the state municipal boards councils and commissions any committees and subcommittees of these bodies? Not included would be individual official Individual officials Councils established by the governor to exclusively provide policy advice The judicial branch which has its own set of rules the public service board, which acts as a judiciary board and nonprofits generally one of the questions we often get about nonprofits is whether the Nonprofit if it gets a hundred percent or seventy five percent or fifty percent of its funding from the the state Should or local government should they follow the open meeting law? That all depends it depends on what their charter says for instance vpr and vpt Their charter says that they must follow because of their funding they must follow the open meeting law Whereas some it's silent and in those cases. It's not necessarily true So when does the open meeting law? Apply any time a quorum holds a meeting That's a quorum of the the public body So a quorum is a majority of the entire public body if you have a five-member board Then it's a three-member is the majority is the quorum if it's a seven-member It's four if it's a nine-member it would be five And then a meeting is any gathering of the quorum of the public body for the purpose of discussing business or taking action the business of the public body is that which the public bodies government functions and Include any matter over which the public body has supervision control Jurisdiction or advisory power at this point I would just like to add that if if you have a Picnic or barbecue at someone's house And all all five members of your board are there It's not a violation that they're all there It would only be a violation if they start talking about board business Yeah, and I'll just add Jim. I can remember from my days on the school board Three of us who are on the school board were also Had kids playing sports. So we were out on the playground, you know watching our kids play baseball There's three of us there. That's a quorum of the board It's not a problem until we start talking about well Yeah, hey, I wonder if the board could get involved in resurfacing the field Suddenly we're talking about board business Among a quorum of the board and suddenly we've just triggered the open meeting law So you have to be really conscious and careful about that when you trigger the open meeting law that triggers the requirements For notice and public participation So just be wary of that when you're at a barbecue or you're at a baseball game, whatever it might be pay attention to the open meeting law so The next question that we're going to bring up is the advanced public notice that's required So there are three types of meetings you have regular meetings special meetings and emergency meetings in the regular meeting That that's the meeting that you adopt a resolution at the beginning of your board when your body is first organizing itself and you have a Resolution that says we're going to meet every Monday night at 7 p.m You know throughout the year At the at the city hall or town hall That sets the the regular meeting Gen not agenda, but a meeting notice at that point a special meeting would only require 24 hours notice and you have to Clearly state what the time the place the purpose and the agenda would be it should be Published posted in a newspaper or radio station serving that area any person who is specifically asked to be noticed of Any special meetings usually that's the press And all members of the public body And and that last line about all members of the public body is important because there have been over the years a few occasions where you will see a A public body wants to have a special meeting But they exclude members of the body that don't hold their same Thought process Then the last one is emergency meetings and emergency meetings is not that on Monday night You forgot to do something and you need to call people back for it You could call a special meeting for that and announce it 24 hours in advance an emergency meeting is really An act of unforeseen occurrences or conditions that require immediate attention and I'll give you a great example Back in 2011 Tropical storm Irene went through Vermont and There were select boards and city councils all over the state that were holding Emergency meetings trying to figure out how to deal with a road that was closed a bridge that was wiped out And those kinds of things so they would hold their meeting at the location To try to resolve that that that get the get the situation moving You do you are required to provide some public notice as soon as you possibly can before the meeting But it's not mandatory that you do it 24 hours or 48 hours So yes, you often say Jim It's the public has a right to know a right to attend and a right to participate So that's why advanced notice is so important so they know what's gonna be on the agenda whether they want to be there Whether it's something that they want to participate in That's why advanced public notice of regular meetings of special meetings and of emergency meetings if possible Is so important to the open meeting law? So the next item or topic that we're going to discuss is the agendas So when does an agenda have to be posted? It has to be posted at least 48 hours ahead of time for a regular meeting and 24 hours ahead of time for a special meeting where does it have to be posted if a town has a Website, then they must post it on the website that the public body maintains or designates and It's and any I'm sorry I lost my place here So municipal public bodies only Internear the town clerk's office as well as in two other designated public places and those two other designated places Should be the same each time they shouldn't change from one agenda to another So what else is necessary any you address? You must address any specific topics that will be discussed and any potential actions that the board might take Any addition or deletion must be the first act of business of the meeting So when you start your meeting The first act should be are there any additions or deletions to this agenda? And then any other adjustment that's necessary for instance if you need to delay You know there's a another body coming in like say the solid waste district is coming in to present their budget But they're half an hour late. You can delay it. That's okay to delay that to a time certain Later on in the agenda It it really is important on on agendas that the public has the ability to know So if you just say the board's gonna meet to discuss an ordinance What does that mean? The public doesn't know if you're gonna do a dog ordinance a dog leash ordinance That is enough just to add those words So that the public knows exactly what what it is that you're gonna do You don't have to get in detail but enough detail that the public knows what's going on So it's pretty interesting that the law still says The board has to publish an agenda on a website if one exists this you know the open meeting law Has evolved over time, but it doesn't evolve very quickly Hopefully every public body out there now has a website and so that that's I guess one silver lining of The COVID-19 pandemic has been that I think boards have gotten a lot better at Notifying the public electronically updating their websites getting information out so that people can attend But that law does have to catch up So every couple of years we do go into the legislature and and try to modernize these laws and we'll touch on a few things that changed specifically for COVID a little bit later on in the presentation and coming right up so so We're gonna talk next about minutes of the meeting so The minutes of a meeting The statutes don't require a lot of information, but it does require specific Information to make sure that everything is known what you need to know about minutes is that is the history of your board So you need to make sure those minutes have a give you a provide a true indication of the business of that meeting Covering all the topics and motions that arise at a minimum What members are present who the active participants are the motions proposals resolutions that were proposed and any Disposition vote results and noting if any individual votes were by role This is this is kind of important because what happens is that people will You have to have the minutes ready so that you could someone can go back 10 years 15 years 20 years and look at those minutes and determine did you did you actually take this action? At that time It's important Information and I can't I can't say it enough When so the underlying statute the current statute itself permanent statute Says that they have to have the minutes ready no later than five days after the meeting. That's not Business days. That's five calendar days after the meeting And where and we're going to get into there's been an extension for COVID But I'll get into that in a second But where they must be made available for inspection and for copying upon request And they must be posted to your website even if it's draft minutes. You should post it on your website And then update it when once you have the corrected copy for the for the public Again Very rarely is there a town that doesn't have a website these days and I think that's what Chris was just referring to So it's it's it's important. Remember. Those are the underlying statute next up is the temporary open meeting law amendments in response to COVID and these will last until January 15th of 2023 unless the act legislature takes an action at that time but fully remote meetings are permissible now For this calendar year with no physical location required the public body must provide remote part of it must then provide remote public participation options including by telephone info that it allows the public to directly access and and participate Electronically must be posted and included in their agendas and municipal legislative bodies and school boards must Audio or video record fully remote meetings unless unusual circumstance make that impossible Keep in mind electronic postings may replace certain municipal postings minutes currently or during this calendar year are required the Posting of those minutes is are extended to 10 days and If if you're we still encourage five calendar days But if you are short staff because of COVID you can have up to 10 days to post those minutes It's just I think it's worth noting Jim back in in March of 2020 when suddenly all of state government was shut down Suddenly we were all worried about the unknowns of COVID-19 You and I were going to the legislature. We had boards school boards select boards all sorts of commissions coming to us saying We have this requirement to meet in person and we don't want to meet in person right now How can we comply with the open meeting law? So we went into the legislature We worked with the Senate government operations committee in the house government operations committee to make some changes to say For this short period of time under this state of emergency which turned out to be a long period of time Not just a short period of time We would eliminate the physical location requirement boards could meet remotely We put in some safeguards in there saying they had to at least have a telephone dial-in option And if possible and a zoom dial in a zoom option so that people could meet on video And it was a steep learning curve, but we've all pretty much figured it out now two plus years later So the next section that we're going to talk about is actually hybrid meetings And that's kind of I'm going to talk about the underlying statute which says any meeting can be a hybrid meeting You don't you're not required to do a meeting by zoom, but if you do do a meeting by zoom Then then you still have to follow some of the open meeting law provisions. So a Hybrid meeting can be Any meeting that that where some members of the board or of the public appear remotely by electronic means That's phone or video video would be zoom teams any of those software Applications where every meeting must must have this is the underlying law Every meeting must have a physical location for the public to attend and to participate And at least one board or staff member must be physically present at that location to make sure to ensure that the the the public is Able to hear and to be heard The choice of a conference call system and or again the software service is a is totally up to the board They can decide which which meets their needs And you can make sure that you but you must make sure that everyone can hear and be heard throughout the meeting and identify Who is speaking? Why do we recommend hybrid meetings? So? COVID has taught us a few things and As a result we highly recommend we've all you know our work environments have all gone to Hybrid work environments where some people are working three days a week or two days a week four days a week instead of five I shouldn't say work remote work And and that This is another aspect of that because of COVID that we have added these hybrid meetings We strongly recommend because what we're finding in talking with folks around the state Is that hybrid meetings allow more people to participate in their local governments All right, it's a it's a more efficient way of meeting sometimes like if you don't want to sit through Two hours of discussion about a topic. You're not interested in You can stay home. You can make dinner whatever you're doing Have that on in the background and when the topic that's interesting to you comes up Then you can pop in you can listen You can perhaps raise your hand and participate in that part of the meeting I've also heard it's more efficient for the the municipalities themselves Maybe they need the road foreman to come testify on something that he's an expert in But then he doesn't have to drive in Sit through a couple hours of a meeting get paid for it most likely He can just come in when he's needed the board can call him in And then he can testify when he needs to I guess it's also important to remember that this Remote meeting piece was there was always there underlying in the open meeting law It allowed for board members to participate typically by phone. There wasn't a lot of video meetings going on Before covet with select boards and school boards. They could participate by phone as long as they had that physical location We talked about but the physical location piece was what was waived for covet So continuing on on the hybrid meeting area So what else do we look at? So we recommend for instance that you plan ahead that you explore the technological solutions that are available to you Make sure that you have one that works for you for your town for your board Establish the protocols that you're going to use To manage the discussion across multiple locations your meeting materials You have to have access the public has has a right to have access to the meeting materials Whether it's documents that are being handed out or whatever So make sure that you're able to deal with that and then Someone needs to be ready to Be the troubleshooter if there's a run If there's a problem and and I think it's best to at least set it up and try it Before you actually go public with it Just to see if you can make sure that it works well Second would be advertised you need to include the remote access info It is widely as Spreaded as widely as possible through your community And and through the designated physical location on the agenda Consider additional ways of getting the word out to your community It could be posting it on your website But you need to provide information for the public to be able to access the method that you're using for hybrid Third would be adhering to the open meeting law Board members attending remotely Must identify themselves when they're the meeting is convened and if a quorum is remote Then they the non unanimous votes must be done by roll call So if you have a five-member board and three members are are remote and only two members are Physically in in in the meeting space Then you would have any any non Unanimous decisions must be by roll call so that you know who voted for what And then the last point that I would make here is reflect Consider what's working what isn't and what new options may exist Technology changes all the time it changes every day Consult with your local boards and your community members and and actually you can consult with experts To help you guide you in the right direction And jib I think this is a good time to give a shout out to the community access tv Folks across the state who really helped to keep public meetings Accessible to the public. They've installed the equipment in some instances and gotten really good At providing that two-way street for the public to participate remotely Thanks to them. We still had a lot of information About our public meetings even though we had the you know the fear of gathering in In tight spaces and and I'm glad you brought that up chris because I think you know like for instance here chris and I are tonight At channel 17 in burlington And this will be available across the state And and I think it's it's it's important that you work with your public access tv Stations locally because you can you can actually Uh Provide a better access for your public participation So the next item on the agenda here is tonight is executive session When can a board meet in private? So it's what first of all, what is executive session? It's a portion of the meeting that is closed to the public Um, and when's it appropriate? It's only appropriate if the business considered fits into one of 15 statutory categories and only if the public body Moves to enter executive session from an open session And indicates its reason for doing so and only for talk not for action No formal or binding action may be taken while you're in executive session with one exception And that's real estate options other than that everything you have to come out of executive session back into open session And have a motion that is recorded Uh, whether it's by writing or or on video But have a recorded portion of that motion and a vote that comes out as a result So this is something that we get often is is what the requirements are And I and I will say that the the statutes do you have the statute citation? I do for executive sessions Yeah one vsa 313 So one vsa 313 is where the executive session portion is and it lists the the 15 statutory categories They're very explicit and and if it's something that's beyond what's in one of those 15 categories You cannot use appropriate Executive session and one of the things that we get often is Boards often will contact us and say well It was an embarrassing topic and I really didn't want to discuss it in the in the public unless it fits one of those categories Tough you've got to you've got to present it in in the public session So it executive session is an important facet of of the meetings And again, I want to go back to the process. So you cannot have an agenda that says Sixth your normal meeting date or time is 7 p.m And you say okay, we're going to have executive session at 6 30 and then we're going to go into an open session at 7 You have to be an open session an open public meeting Before you can go into executive session So you would have to actually say our meeting will start our public meeting will start at 6 30 We will immediately go into executive session and come out to go back into the public portion of the meeting Yeah, we get a lot of calls about executive session. It's that exemption or that exception to transparency So public bodies need to be really careful about it because the public is going to think they don't know what's going on in executive session So you really need to be careful to follow the statute to explain why you're going into executive session And then only to make take action once you come out of executive session So next up is the public participation And again, as chris and I have both said from the very beginning members of the public have a right to attend to participate and to enforce the law essentially By notifying the body and appealing any decisions they make So you can you have the right to attend which means that they have the right to an agenda in advance They must be notified Directly of any upcoming special meetings and disability accommodations pursuant to vermont's anti-discrimination Statutes must be followed the participation part A reasonable opportunity to express opinions on matters considered subject to reasonable rules That's an important piece. So Someone might say well, I don't want to talk. I don't want to have that person Speak to us because they're they're they don't agree with us Tough you again. You have to provide an opportunity for people to be able to participate in those meetings And and I think the enforce the law is easy It's really about if the public body if someone feels that the public body Is not following the law then they have a right to enforce that law Yeah, just to go back to that reasonable opportunity to participate and then there's a piece of the law that says subject to reasonable rules The public body chair can set rules to maintain order To be able to let the public body get through its business So it means the public doesn't have a right to disrupt the meeting The public doesn't have a right to go on and on and on about whatever they want to go on and on about So this is a part of maintaining order subject to reasonable Rules so the public does have a right to attend and participate But there are some limits to that in order to maintain order and to allow the public body to get its business done And often you'll see Boards that allow the public to have you know three minutes to speak That's designed to maintain Decorum to allow people the opportunity to speak that would be considered a reasonable rule And and you can stop someone if they are going over At that point so it's it's you know, it's a balance I know when I was the city council chair in South Burlington, we often would let people go over a minute or two We would let them know that that their time is coming And and but you know, you want to allow the public to participate in those meetings Um Why do we comply with the open meeting law? The reason we comply with the open meeting law is that meetings held without respecting The details of the law may actually be illegal And if such if the court were to determine that They could void any decisions that were made in those meetings Most importantly illegal meetings offend our notions of openness accountability and democracy In vermont the people rule sometimes directly sometimes through their elected or appointed for representatives But always always with the benefit of public scrutiny So I don't need to say anything more about that It speaks for itself The next item is enforcement Um, and there's a lot more to this than what we have here today But but the the way you can enforce the open meeting law is to provide written notice to the public body By an individual or the attorney general Alleging that a specific violation requesting and requesting a specific cure So you can say you can in writing say to the to your select board I believe that you you violated the open meeting law and I would request that you review that action And determine how you're going to cure it The public body must then respond to that Uh violation or that request by acknowledging within 10 calendar days by acknowledging the violation And stating they have an intent to cure Or stating that they did not feel that they violated And and so no cure is necessary Third the public body's cure if it does acknowledge a violation must be within 14 calendar days Uh and and they should ratify or declare any as void any action that was taken at the improper meeting And and adopt specific measures that will prevent future violations And lastly if an aggrieved individual Is still not satisfied they can file suit in superior court within one year after the meeting I think there's a there's a common misconception out there We get these calls and emails all the time Asking the secretary of state himself or the secretary of state's office To go enforce the open meeting law And we have no authority to do that. We have no authority over municipalities We can describe best practices We can point them to the areas of the law and tell them what we think the law says and what they need to do Um and we can do things like this transparency tour to try to educate the public and educate the public bodies But we have no authority over a municipality to tell them what to do That's why that enforcement process is in the law to allow Citizens to enforce it themselves. It's not always the easiest thing to do You have to go to the public body first and you have to go to superior court if you're not happy with that But there is recourse in there And the recourse has gotten easier over the years as secretary condos and I have advocated for changes to the open meeting law So, uh, we've we've come to the end of the open meetings section But we have several questions that came up, uh, that I think they're all about the open meeting law So why don't we take these right now? Um, so lisa from waterberry, uh Had a on the topic of remote and hybrid meetings She says as you know, remote hybrid meetings have been a roller coaster over the past two years With the biggest positive result being increased public participation We absolutely agree with that. It's almost as if school boards or select boards Meetings are now alongside netflix on tv For viewing options. It's nice to see that our local government school board continues to use The hybrid method, uh, but there are some nuances that need to be figured out One common thorn in this format involves executive and deliberative sessions Where the public needs discussion time apart from the public I'm sorry the board the public board needs Discussion time away from the public Some of our local boards have mastered putting the public in a waiting room Or going on to a separate call and then returning to the public meeting zoom To take any action after the closed session and adjourn One of our town boards the drb. This is a very special case When you look at the drb the drb is considered a quasi judicial And a quasi judicial board, uh, and and they have decision-making authority but this According to lisa her board has not figured this out and so far hasn't made it a priority To return to public session even when there's a vote being taken Following their deliberations drb's as a quasi judicial board are allowed if they're going to issue a A Decision in writing after the meeting They do not have to take any action in the public side. They can as long as there's a written Decision Following that meeting at some point. It could be a few days later That is okay for them to do and if but if they were making a verbal decision That would be that would be a problem. That would be a problem at that point Because they need to come back into that open session to let the public Know what decision they took in closed session. They can't take a decision in closed session They have to do it in open sessions. So we have had a couple of examples where Select boards Actually Didn't follow the law exactly as should be for instance We had one town their minutes said that they had a that they They came out of executive session And the motion that they that they approved says Uh, we affirmed the decision we made in executive session That's wrong. You can't do that You cannot make any decisions in executive session except real estate options So any decision that you're making hiring and firing Signing contracts anything like that has to be done in the open meeting And it has to be enough description in the motion so that the public knows what it is you are voting on So that's one we also had an example at one time a few years ago Where a local select board city council had Uh affirmed the decision they made by email That's a no-no It's it you can't make any decisions by email In fact, I would suggest to you that if you're making a decision by email You've probably violated the open meeting law Because you shouldn't be meeting On email without the public having access to that So you you do have to be careful. We urge people any select boards City council school boards anything That is considered a public body to check with their legal council for their their town To make sure that they're following the law correctly. So that was one. Do you have one there? I've got one from terry who's a school board member His question is my question pertains to the board committee meetings and quorum rules Could you please explain a carve out that allows full board members that are not a committee member To participate at a committee meeting without actually being or creating a quorum So let's let's just lay that out. So we understand what we're what we think it means So you've got let's say you've got a Five-member board select board Full board and then so a quorum would be three members But you have a subcommittee of three That that it's a budget subcommittee that deals with setting up the budget to bring to the full board So that quorum is only two, but if you had that three-member Quorum of the select board of the subcommittee meeting And then one or two members of the of the full board of the full board that are not on that committee show up That's I think what the question is driving at yeah, and he talks about a carve out that allows that to happen without it creating a quorum I'm not aware of that. Um, I think when those other two or one member Come along they've created a quorum of the full board and if they're discussing anything that's within the full board's purview They've created an open meeting triggered the requirements for an agenda and public notice and public participation For the full board and minutes and a minutes requirement So it can get pretty complicated. So like jim said earlier really you should talk to your legal counsel They're the ones who are going to have to defend you if you have any questions You can also call the league of cities and towns will answer this for municipalities the school boards association For school boards and we're happy to help too if we can you can always give us a call at the secretary of state's office So next is a another school board question It's about the open meeting law and it says how does a disagreement regarding Whether an item qualifies for executive session or not get resolved if the disagreement is resolved and one party continues to disagree Is that member duty or ethically bound not to participate? Or is there a pathway to further challenge the ruling of resolution? Um It's not unusual to have a one or two members of a of a public body In disagreement about going into an executive session I'm not sure I would say it happens often, but it does happen and There is no Way to resolve it except amongst themselves It's the board has to decide whether something and it would be done by by a vote and in fact, um, I think it's uh Is it It's not a majority. It's is it two-thirds. I think it's two-thirds Um, uh, majority has to vote to go into executive session and in that kind of a situation We'd have to look that up on the on the statute because it doesn't come up very often Um, so there is a challenge. There is a way to do that and and a board member Could always go to the attorney general or the state's attorney And and say give me a ruling on this or go to their legal counsel and ask them to Decide whether that was legitimate or not All right, one more question from brian on the topic of remote and hybrid meetings Can you discuss what is or is not allowable regarding the chat feature? Of on online meeting platforms during a meeting for example should private messages between or among participants Be allowed or is it best practice to disable them during meetings and you could this is the old school Uh new school version of passing notes during class Exactly What do you think I you know, I think that's a you're having a conversation among board members if the if the point Is to have trust in what you're doing if the point is for the The things to be transparent and the public has a right to know It's I would say it's a not a good practice to be passing notes Virtually outside of the public's knowledge because you're basically having a conversation Online without the public knowing and forming your decisions about how you're going to vote on a particular issue Or how you're going to deal with a particular issue So I think it's it's important that that be done totally in the open and not by either passing notes physically or virtually And I would go one step further and say that if if a board does Have chat discussions, whether it be on zoom or on text messages on your phones I think you really need to be careful, uh, and and those should be preserved As part of the record Going forward those would be public records and we're we're going to talk about public records right now That's the next section Of this is the second half of the transparency tour We've been talking about open meetings and now we're going to talk about public records I'll I'll lead the way on this one and and Jim will have lots to say as we go through i'm sure The public record statute can be found at one vsa sections 315 through 320. So it's just a few Short sections, but it packs a punch. There's a whole bunch in there First of all, we'll talk about what is a public record? It's any written or recorded information Regardless of physical form or characteristics Produced or acquired in the course of public agency business All government records are public records That's the premise you start from I'll say that again all government records are public records But some public records are exempt from disclosure And who has to comply with the public records act? It's public agencies and that's defined right there in section 315 It public agencies of the state and of its municipalities state and municipal agencies boards departments commissions committees branches instrumentalities and authorities So the first the first test for that is are they a public agency or public body? And the second is any record whether it's digital or paper Or a recording is considered a public record and is subject to the public record law A recording a photograph. I mean there's all kinds of things a map whatever it might be Any written or recorded information Produced or acquired so you don't have to have created it as a public agency You might have acquired it in the course of agency business and again All records are public records you start from that premise And then some are subject to disclosure some are not most are subject to disclosure some are not So who can be asked to inspect or copy a public record? Anyone? Any person can ask to inspect or copy a public record And there's actually a supreme court case Shlansky versus the city of burlington the burlington police department from 2010 That says the identity and motive of the requester cannot be considered when weighing access to public documents So let's think about what that says so I mean we're all well aware that we have individuals who As as I've heard recently have weaponized public records and The important thing to remember is they have the right to have access to those public records Obviously following the law so We have a couple of prolific records requesters and You know we've taken it upon ourselves that we provide the information they're asking for Even though we know that we don't know what they're going to do with it We don't know what they want it for that's not up to us That's right and it can as the records officer for the secretary of state's office. I mean it can be painful It can be time consuming It can drive you a little bit up the wall sometimes But it's a responsibility of government to do that It's part of transparency and as we like to to say open government is good government Transparency leads to accountability We work in our office as though 630 something thousand vermonters are looking over our shoulders So and we're responsible to them. So that's that's part of being in state government is providing those public records when asked to The next on the slide is um How do I make a request? How can you make a request for public records? You can inspect state records on weekdays During regular business hours Actually for the state it's it's designated is from 9 to 12 and 1 to 4 So you can't come in right at the beginning of the day or right at the end of the day To make a big records request or a big inspection request But between 9 and 12 and 1 and 4 you can come into any state agency and ask to inspect public records Municipal records you can inspect during customary business hours So that's when the office is open to provide services some Municipal offices might in very small towns might have limited hours So you would need to come in when they're open to inspect those public records And we have a few tips here for requesters There is no Requirement to put your request in writing, but it's a good idea You should be specific about what you're asking for it makes it easier on the person you're requesting from It makes it easier for them to provide that to you So it's in your own interest to put in writing what you're asking for And you should list or specifically describe the records you'd like to see no one likes to waste time You don't you if you're making a request you probably don't want to waste The time of the agency or the municipality and they don't want to waste your time They want to provide you with what you want So be clear about what you're looking for Be clear whether you want to just inspect or get a copy Because there's no charge to inspect But if you ask for copies You may be charged and you can request an estimate of what that is before you Before you actually have to make the copies for you And you should date your request and you should include your contact info And how does an agency comply? How does a municipality comply with a request to inspect or copy? It has to be done promptly So again, there's quite a bit of gray area in the open meetings law and in the public record act Promptly wasn't defined until recently and in a recent change that promptly was Clarified slightly it means immediately with little or no delay And unless otherwise provided in the public records act not more than three business days So we get public records requests all the time We know we have to treat them with some degree of Speed and emergency because we've only got three days to do it. So as soon as I get those in I tend to send them out to the appropriate people in our office or do it myself and We know we have only three days to respond to those We have to accept the request in any manner or format. So whether that's an email or a phone call or A letter We do have to accept that request And if necessary we consult with the requester to clarify or narrow. So oftentimes I'll get a request that's kind of broad maybe vague maybe I don't understand exactly what they're looking for. I typically will call the requester and try to have a conversation and say What exactly are you looking for? I can get it for you quicker if I know exactly what you're looking for And I don't have to produce a bunch of records and you don't have to receive a bunch of records. You don't want And if necessary you can request an extension of time. So sometimes Those requests are really hard to Hard to fulfill. The records may be off in a warehouse somewhere It may take some time to search through your records in order to find them So you can always request an extension of time from the requester Next up is making a determination And so the rule is that the public agencies Must produce records for inspection and copying unless the record is exempt Exempt under statute and there are many exemptions in the statute The policy That comes from title one vermont statues annotated section 315 Is that it's in the public interest to enable any person to review and criticize government Decisions even though such examination may cause inconvenience or embarrassment And you heard jim talk about that earlier today, you know trying to go into an executive session Just because something might be inconvenient or embarrassing the same goes for public records It might be inconvenient It might be embarrassing but the public has a right to know and if you've produced that public record And it's not subject to some sort of exemption you have to provide it And the burden of proof the burden is on the state agency the burden favors the public in terms of disclosure The public records act represents a strong policy Favoring access that's from a supreme court decision Here's that here's more from the decision. We construe these exceptions strictly against the custodians of records And resolve any doubts in favor of disclosure So the burden of proof is on the agency seeking to avoid disclosure. So when in doubt we hand it out Um Next up is the enforcement provisions Sorry, did I just hit my slide one more time? Whoop. I go the wrong way. I guess I fell behind there for a minute. I think we're back. I'm trying got a couple Making a determination in white There you go. I'm on the right spot now. Okay Making a determination How do you make a determination about exemptions in uh In law when it comes to public records, there are 40 plus that are listed in the public record act itself and that's in that section there's a five sections 315 to 320 and um section 317 Has 40 plus public records act exemptions And then there are another 200 or so scattered throughout the statute And you can find all of those exemptions On the legislative counsel's website They have a list of the public record act exemptions and also on the attorney general's website And each public agency should know and maintain a compilation of the specific state and federal laws and regs that affect access to records in its custody So hopefully the agency that you're dealing with and looking for a public record knows which exemptions apply to them And then when they do come make a determination, they have to give you that determination in writing if they're not handing something out to you Um next up is why comply why should agencies and municipalities comply with the public records act An agency that denies access to non-exempt public records may face litigation And could be charged the requester's court costs So there's a price to pay if you don't comply with the public records act An individual who willfully destroys or discards a public record without authority faces fines And most importantly just like the open meeting law prompt compliance supports our notions of openness accountability And our our very democracy itself The enforcement provisions of the public records act. Um, if you're not satisfied with The response from an agency you may appeal to the head of the agency So if someone comes through me as a records officer I tell them I can't give them something out because of a of a specific exemption In the public records act, they're not happy with that or they think there's more They can appeal to the head of the agency this guy here to my left So they can appeal to the in this case the secretary of state Secretary of state can look over my work decide whether I did something right did something wrong And with five within five business days, he would have to make the records available Or give notice of denial in writing including a statutory basis. So again very clearly in writing Why we're not giving you something and a brief statement of the reasoning and supporting facts and details about appeal rights So anytime I answer someone's public records request I let them know that they can appeal to the head of the agency Anytime they do appeal to the head of the agency jim lets them know you have appeal rights And there there's more that you can do if you're still not happy with the decision So you can file an appeal in court. In fact, it goes to superior court There's a 30 day deadline counted from the date of denial So you can't leave it open forever and then come back and appeal within 30 days You can go to superior court and they're supposed to take those cases up quickly They have an expedited docket for that and determine whether or not the agency might have violated the public records act And again, there are consequences for that if you don't follow the public records act You face you can face fines and costs That's it. I think we've come to the end of the presentation Thank you and jim you want to say a few words as we close it up. This is it's really important the stuff the open meeting law and the public records act This is again, it goes back to the constitution. It says that public Government agencies government boards, whether it's local or state are Accountable and are Accountable to the people and I think that it's it's You know, we have a general counsel that jenny proser her email was on that last slide. Thank you slide but I think also that you know chris all is our records officer and He will answer immediate questions But either one of them there's our emails you can contact us that way or through the phone number Through our website the this will be I think we're going to post this this Video on on our website as well but you know, this is This was so important when I first took office in 2011 that you know chris and myself and And our staff we really pushed the legislature to make some changes We worked with the media in many cases for instance The the whole idea of accountability And the fact that people are intimidated by having to go to court You know, we had the law changed they used to say that the court may provide legal expenses From the from the not for the requester from from the government agency We had that one word change from may to shall So if you lose if a government agency loses their case The court shall provide legal Restitution in essence from from the government agency But again, that's only if you win and Substantially and and it again. This is so important To the trust that we develop with in government And it's something that our office has worked on for for years, and we will continue to work on going forward you know, we have 100,000 square foot warehouse full of Bankers boxes full of records from all different state agencies that we manage And and every every agency is required to have a records officer that understands the law and follows the law And works with our state archives and records management unit to provide Good information and good public records management And anything else chris? Yeah, I think you know ever ever since um, you've been secretary of state gym You started off with that transparency platform You started up the transparency tour. Um, we really missed doing that We were doing that every other year traveling around the state. Um, trying to to to help educate the public and educate public bodies and board members about the right to know like I said earlier, I think They want to do the right thing. They want to comply But it's complicated sometimes so we're here to help we're not we're here to be a helping hand on this not a hammer Um, and it's just really important to trust in government That trust in government really is at an all-time low particularly on the federal level, but also on the state level So transparency is really key to helping the public Trust what we're doing when we're open about that when we're honest about that We have nothing to hide we do it out in the public The public is going to understand what we're up to and hold their government accountable as they should So it's just really important that we get out and talk about the open meeting law the public records act And that the public knows their rights And under both of those laws and I think you know, I'll go back to something chris said earlier We operate at the secretary of state's office as if we have the entire population of the state of vermont 640 some odd thousand people looking over our shoulders with everything we do. So we're careful about What we you know do with our whether it's email or Records that come into us by by mail where we protect those we we save those And we catalog them and and Um, you know, it's just if you do it in the beginning if you you set yourself up So that you're managing your records from the very beginning It makes it much easier down the road Well, thanks everybody for watching tonight. We hope hope we could be helpful and um as jim said you can always call our office Our emails are there. I see jim's emails not there. My email is up there But jenny prasar is a general counsel in our office and she answers municipal questions all day long We think it's important enough She answers these questions about open meetings and public records act that we dedicated a full time position to it She's extremely knowledgeable and helpful and we hope that if you do have any questions that you will give us a call So thanks everybody. Thanks for tuning in. Uh, and we you know, welcome any input. Good night