 So, for those of you who may not come before this committee all the time or ever, we'll introduce ourselves and then we'll get started. I'm Jeanette White from Windham County. I'm Anthony Collina from Washington County. Brian Colla from Rutland County. Allison Clarkson from Windsor County District. And we will be joined by Chris Bray from Addison. So we have two bills. Tucker, would you like to join us? We're going to vote out today before we start this because it's going to take us about three minutes on each. We will be fast. So Tucker, would you like to do 143 and tell us the change you made? Yes, Madam Chair. Good afternoon. Tucker Anderson, Legislative Counsel, Office of Legislative Counsel. After yesterday's discussion of age 143, I drafted an amendment that will change the effective date from July 1st, 2019 to July 1st, 2020. Good because we try not to do retroactive legislation. This one would be particularly troublesome. It would be particularly troublesome. This is allowing towns to do away with their town agent. All right, so are we ready for a vote or is there any more comments? Good. I hope we move out of draft 1.1 of age 143. As amended. Yes. Great. That would be drafted. No, we're just going to vote on all grounds. Just the draft. I would second it. All right. You want to call the roll? Absolutely. Bray. Clarkson. Yes. Collin. Yes. Polina. Yes. White. Yes. Great. And may we leave it open for Senator Bray to weigh in? Yes, we can. Do you? And who was reported? Oh, Anthony wants to report it. Oh. You're willing to report it? Sure. I was going to offer. Okay. Well, we have another one right now. You can report that. You're generous. You can be extended. 186. One thing I would send to Tucker, we can do this later. But there's elements of this bill that relates to specific towns. And I just want to remember which, what they are. Okay. So, S186 was really a technical correction that because it referred back to, we repealed something in 2006. We repealed section 251 of something but didn't repeal 252, which referred back to 251. And so this is a technical correction only that also repeals that section. And we have cleared it with the, it has to do with bonded officials who needs to be bonded in the state and how that's determined. And we've cleared this with the administration to make sure they're okay with it and the treasure. Everybody's okay. Nobody had any concerns about it. It does what it's supposed to do. Anybody want to make a motion on this one? I move. I move we vote on S186. Second. Okay. Any more comments? Anybody out there want to weigh in on this? Guess not. Okay. Brad. Clarkson. Yes. Collin. Yes. Polina. Yes. White. Yes. I'm going to put it for right away. And do you want to? Yes. I'd like to express my appreciation of the chair's indulgence and my sometimes limited absence in the afternoon for officiating to let me graduate. You left two minutes before everybody else did. No. But thank you. Okay. Now we're going to move on to the issue of public records. And Tucker is once again our drafter around public records are our guidance, our counsel. And I'm just going to lay the stage here a little bit. We do not have a bill. Tucker and I worked together over the summer to possibly do a bill. And the bill would have been meant to be a placeholder. So we had something to work from. But as we thought about it, it seemed that if I turned in that bill and it got published, which is what happens, that that's where the energy would go was on that bill. Even though it was only meant to be a placeholder, but everybody would glom in on. That's a technical term. And glom in on the changes that were in that bill. So we decided not to have a bill itself, but to just begin to take testimony and then create a committee bill. If we felt there needed to be any changes or wherever we went, we would do it through a committee process. We have a deadline of January 31st to have committee bills done. And we will try really hard to make sure we have anything done by then. However, I do understand that there's some kind of a public records bill in the house. I don't even know what it is. But if it passes, we can use it as a vehicle if we can't get done. But our goal is to try to finish this up by the 31st of January, which is not very a very long time. But you can see from the passage of the last two bills, we worked fast. So here we go. Okay, so Tucker is going to, thank you for laughing. Tucker is going to kind of walk us through very quickly what the current statutes are, what they say. And a little summary of the court case this summer that kind of brought us here right now. Is that fair? That is fair. Good afternoon. Again, for the record, Tucker Anderson Legislative Council. Happy to be speaking first today in my brief, but illustrious baseball career. I was a lead off batter. To provide two very general outlines or frameworks that you can start with today. First big picture note, the Public Records Act is the general procedure for accessing government records, but it is not the exclusive. There are more specific procedures that are set out throughout the BSA for particular records that the government manages. What we'll be talking about today is the default or general right of access that is enshrined in one BSA chapter five sub chapter three. And it outlines again how the public under general terms is capable of accessing records that are produced or acquired in the course of a public agencies business. That sounded like a lot. To give you an example of the distinction, vital records, which I know you have spent a lot of time on over the last few years. It's a very specific procedure for accessing them and for acquiring a certified copy of certain certificates. You have to pay certain fees for them. Only certain individuals are entitled to receive those records. That's a specific records access statute. Here we have the general. To frame how to look at the Public Records Act, I'll give you three terms to think about as you move through the legislative section. The first is duty, the duties of a public agency. Whether that be to produce a particular record or as we'll touch upon later in exceptions, the duty to withhold certain information concerning an individual, concerning sensitive or confidential information. The second is management. That is a structure of management around government records. Some of them are very particular in statute. Some of them are more discretionary on the part of an agency. But overall management plays a key and vital role in how records are kept and ultimately how they are accessed by the public. The final is access. And that's what we're going to talk about today. Just that one pillar. And that is the Public Records Act, allowing access to records. To begin from the top, as my colleague Betsy Ann Rask always says, we'll start with briefly touching upon an article within the Vermont Constitution. And that's in chapter one, article six. In that article, you have this principle that government officers are trustees of the public. And that, I'll just read it so that I don't summarize and misquote, 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 at all times in a legal way accountable to them. This has been reviewed a few times by the Supreme Court. And each time that they've looked at it, they have said that this is a vision that is articulated in the Constitution. That it is not self-executing and that ultimately the contours of this principle are outlined and designed by the legislature. So all of that boiled down is to say that you have the power to determine what the contours of this right of access are. I was asked to be brief which is not always one of my skills. So I will breeze through a few parts of the Public Records Act that do not relate to charges associated with complying with the Public Records Act request and save that for the end where we'll do a little more detail. To move through, a key point in the Public Records Act is a statement of policy. It incorporates that chapter 1 Article 6 language and frames it as a balancing act for the reviewing public agency. When a request comes in, the agency has to balance the public's interest in disclosure against the individual's expectation or interest in privacy. That, again, is important in that first pillar that I discussed earlier, the duty of the agency. Often an agency is given the express duty to withhold information, right? There's no discretion there. Sometimes the Public Records Act is not so well-attuned to describing the differences between discretionary exemptions and mandatory exemptions. Something to keep in mind. In Section 317, you have the definitions and exemptions just to reacquaint you with your old friend, the Public Records Act. Public agencies include all committees, branches, agencies within state government and local government. A public record includes any recorded information, written, recorded texts, emails, body cam footage. It doesn't really matter how it's recorded. It's just that it is recorded. Within Section 317, you have the 42 enumerated exemptions. However, there are numerous exemptions throughout the Vermont Statute's annotated. They mostly deal with the balance, again, between that privacy interest and the public's interest in disclosure of a certain record. In Section 318, the Act provides the procedure for a public agency responding to a Public Records Act request. In general, just to refresh your memory, the range, the time range that a public agency has to respond to a records request is either three, seven, or ten business days. And those first two say three calendar days, seven calendar days, ten business days. Important distinctions there. There are different triggering events for how those timelines come up. If for some reason you want to revisit them, I can provide more detail, but I will continue being brief. I'll move on to Section 316, Access to Public Records. This is the section that deals specifically with costs, and it was the focus and subject of the Doyle case that we'll touch upon right before I leap out of this chair and jump back. Touch upon the language in Subsection B of that section. It deals with the use of copying equipment that is maintained by the public agency and how a public agency may charge for the use of that copying equipment. Subsection C is where there's a little more play. And this deals with charging and collecting for the staff time associated with complying with a request for a copy of a public record. And I did intentionally emphasize that in my dulcet monotone, because that will be a subject in the Doyle case, the use of the term copy throughout this section. The basis for charging for staff time, again, triggering events. First, the time directly involved in complying with the request exceeds 30 minutes. Once you go beyond 30 minutes, that's when you start triggering that staff time charge. The agency agrees to create a public record. So I'll give you an example. Someone writes in and requests a record that does not exist in that form, but you might have a mosaic of information that could be used to create that. The public agency says we don't have a record. That record doesn't exist. However, we'd be willing to create it so long as you agree to pay for the staff time involved in creating it for you. Third, the agency agrees to provide the public record in a non-standard format, and the time directly involved in complying with the request exceeds 30 minutes. So easy example here. The standard format that you are keeping the record in is electronic, and the individual wants physical, bound copies with a leather cover and gold leaf pages. Then you are free to establish targets for that. An interesting note here in subsection G. This subsection states that a public agency shall use its own equipment to copy records. And that this section, section 316, shall not be construed to require any public agency without copying equipment to allow the use of other equipment. But what is the silent piece that is missing here that could use some clarity? If you maintain your own equipment, do you have to allow the use of other equipment? Subsection J provides that public agencies may adopt reasonable rules to prevent disruption of operations, preserve the security of public records or documents, and protect them from damage. Now, I will touch upon two quotes from Doyle. I will read them for you. I think that they are clear in how the court looked at section 316. I think that might have been us. It's one of our warning bells. Oh, it wasn't somebody's phone? No, damn. I was ready to start doing this. If your phone goes off in this committee, you have to treat us all and our chosen guest to dinner at Sarducci's. Oh, so look, everybody runs out. Turn off your phones. Sorry. That's a sure. And Tucker and Gail. I was going to say it, but I'm always the chosen guest. No, no, you're there and you can choose your guest. Great. Yeah. Okay. So in the Doyle case, they interpreted the plain language of the statute. They looked in particular at disjunctive wars and the use of the word copy versus inspect. The court and I will quote said section 316 C authorizes an agency to charge and collect the cost of staff time associated with complying with a request for a copy of a public record is underlying there by the court because they really wanted to emphasize that by its plain language, this provision authorizes charges only for requests for copies of public records, not for requests for inspection. We will not read an implied condition into a statute unless it is necessary in order to make the statute effective. We interpret 316 C is applying to request to inspect. It would render a copy of mirror. So plus it. The court despises absurdity. Next, the plain language throughout 316 indicates the legislature's intent to distinguish requests to inspect public records from requests to copy them. Section 316 begins by providing that any person inspect or copy and that's the disjunctive or that they are looking at. This disjunctive or creates a distinction between request to inspect and to copy the continues throughout the section. The statute specifies the times when a person may inspect public records, authorizes charges associated with records for copies and further addresses charges, equipment, monies and formats for copies. The holding was the state agencies may not charge for staff time spent responding to requests to inspect public records pursuant to the public records. To frame how this may have shifted things for public agencies and their conduct and responding to public records requests. Whether or not charges may apply to a given records request will now depend on how the request is submitted and whether the agency is providing a copy. So where does that leave our agencies? I'm sure you will hear plenty of testimony today about the state of the state and the public records act. Any questions? I have to say I was a little confused by the I do not did not remember that it was very specifically stated that you could only charge for requests for a copy. I know you charged for the copy itself, but I guess I missed that somehow. I will know for you. I submitted to Gail a copy of the 2012 interim report from the Public Records Study Committee. And the act that created that committee charged the committee to look at specifically whether there should be charges to inspect public records and the time associated with preparing those records. And during the first year that the study committee met, they did not answer that question. They delayed it for future years. And part of that was they were waiting for data on the increase in public records requests at the municipal level. And they said, you know, we will revisit this later. But unfortunately that was one of the things that got left behind in a very prolonged discussion about exemptions. If you read the description under that charge of what the committee was looking at, and if you look at the act, the act says very specifically that they wanted to determine whether requesters were circumventing charges for staff time by making requests to inspect. The issue has resurfaced. And if the committee would like, it can always provide the materials that the Public Records Study Committee looked at in 2012, as they were heading towards that particular issue. I think this is the same thing you were just talking about, but Section 316 makes it clear, I mean, it seems clear to me that the charge is likely to cause some staff time associated with complying with the request for a copy. That's different than a request to go get the stuff. There's getting the gathering of stuff and then there's copying and stuff. By the plain language, that is how it is written. That's how it was read by the court. And I'll note that this was broached by a few states in the mid-2000s and by the U.S. government, the Open Government Act of 2007 addressed how charges first would be applied, looking at this process as three separate stages. First, review of a request. Second, the search. And third, the duplication of a record under a Freedom of Information Act request. So you have those kind of three parts. And charges can be applied under any of those three parts depending on who the requester is. They broke requesters into three categories. There were effectively private firms that have to pay for all three. My review of your request, my search for the records, and my duplication of those records. The media, which only has to pay for two of those, but I can't remember which one. And then all other individuals that pay for review and duplication. Thank you. But they don't pay for the gathering. Yes, there's divisions I can't recall which the media has to pay for. I believe the media requests under the Freedom of Information Act don't have to pay for the review. They pay for the search and the duplication. So where would something like redacting information, would that be part of the review or the search? The review is strictly when the request comes in. Reviewing the request itself. Reviewing the request itself to determine where the records will be held. If I have to clarify the request with the individual. So the search would involve any... It would be the actual... Think of it as kind of search and preparation of the... Correct. If you had to redact information, okay. And for what we understand, the search is the huge time consumer. And that would include redacting. Yeah, and the search, I mean just searching itself may not be the time consumer, the redacting and the getting it in. I don't know, it probably depends on the different agencies. The Public Records Act relationship with FOIA has been interesting in the past. But if you would like more information on how FOIA works, I would be happy to put that together with you. Thank you. And Tucker, it might be easier if you sat at the table than tried to jungle all your things in a chair. Please. So join us on either end. All right. So we have a relatively long list of people who want to testify. And I'm sure there will be even more people who want to testify at a later date. But we'll just start going through them here. And we will keep doing this. I think we already have it on the schedule for next week. I think it's the Thursday. I think next week is when... So, Senator Brock, is Senator Brock... Are we going to call for him and let him know on the list? He asked if one of us would run and gather him in finance. Can you just email the... Okay. Well, he asked to be gathered at the beginning. Okay. He asked Gail to put him at the beginning. Yeah. But he asked me to. Okay. Well, I hate to have him come in in the middle of somebody's testimony. Can you give me the intro mic? I'm going to ask you to talk about it as well. Yes. So, how about the situation where I made a request for a written public record? I take my cell phone out and make a copy of it. Where does that fall in this situation? That is an open question that I am certainly based on what I've heard in house government operations. You're testing on the... Because is that an inspection? Or is that a review? Or is that a document? Well, I'm more concerned with whether it's a copy. Right. Definitely it's a copy, but it's my home. And it was... You know, their equipment, so I'm... Well, I think he pointed out some here, or non-guidance here, that the agency shall use its own equipment to copy, but it shall not be construed to require the public agency to allow the use of other equipment, but it doesn't say you can't allow the use of it. There are many flaws to those lines saying that section 316 shall not be interpreted to require the agency to allow copying on individuals' own machinery. It says that if the agency does not maintain its own machinery, the open question in that particular subsection is, if you have your own coffee machinery, do you also have to allow the individual to use it? Thank you. Senator Brock, I know you have a little build here. I do. The copies for the committee. Thank you. The deals with public records. Let me just keep one a second. And what Senator Brock and I talked about, it seemed to make sense to deal with this in the same time and in the same issue as other public records issues. And I know that there will be some other public records issues that relate very specifically to certain types of records that will come up. So we thought we would just throw it all in the bunch. So would you like to? Sure. This is a fairly simple... Remember to identify yourself with the record. Yes, Senator Randy Brock. This is a small bill that's designed as a transparency measure. By way of disclosure, I tripped upon this issue doing a consulting project for my private interests two or three years ago. But I have no interest whatsoever, nor am I doing any work in this area at all, nor have I for the past year and a half. What I saw was looking at one particular entity that was a non-profit corporation formed by the state. And looking for public records about what that entity was doing, the entity indicated that it didn't have to provide any records because it was a private corporation. That entity though was created by the state, largely funded by the state, performing a state function organizationally. It had two agency secretaries who by law were members of the Corporations Board of Directors, and it also had one gubernatorial appointee as part of the Board of Directors. The board itself was self-perpetuating though that the majority of other members of the board elected their other members. But nonetheless, these government officials were still part of the organization. What I found was that they ultimately did provide the requested information, but with the proviso that they were advised by counsel that they didn't have to. This entity also had formed a for-profit subsidiary of which the entity owned 100% of the capital stock. And then of the Class A stock and of the Class B stock, they in turn had some venture capitalists owned some portion of that. And that venture capital firm or that entity loaned money to Vermont companies that the state had an interest in by virtue of creating green jobs, etc. It occurred to me that that entity in particular said it had no responsibility whatsoever to provide any public information of any kind about what it did and it refused to do so. We had a court case in 2017 that was very similar about another public entity formed in the same way, a non-profit corporation formed by the state performing a government function. That was Vermont Information Technology Leaders, the group that collects healthcare information and aggregates it. And it adopted a similar position and that was litigated in Superior Court in Washington County and the request of the information, it was concluded that the entity did in fact have to provide that information. And the judge in that case included a series, a short series of tests as to what constitutes a public entity for public records act purposes. It included an entity that was largely funded by the state, an entity that was created by the state, an entity that was performing governmental functions and a couple of other tests. And that's what this bill does as well. It applies that to overall. It was interesting as I started looking at how many entities do we have in Vermont that are similarly situated, I couldn't find the answer. I had Helena Gardner, if you remember her from Ledge Council, had that as a summer project. She quit later that summer. I don't know if it was a relationship. But Michael Grady took it on and I still haven't got a good report of just how many entities there are that fit this test. But what this bill does is it takes judge-teach-outs decision in terms of the criteria to apply and applies it to any entities that fit these definitions. This is a recurring problem. People get government money and perform government functions and for some reason want to keep it secret. And I don't think they should. I think the public has a right to know how its money is being used and how people are performing government functions should be held accountable. We had another similar situation involving an entirely private entity some years ago and we had a court decision on that. The corrections corporation of America running private prisons in Vermont is subject to the Open Records Act under certain circumstances based on a Vermont court decision. And again, the logic again is very, very similar as to why that should be the case. And that's the issue that I'm raising. So, I just, if the court had decided in the vital case, which was a similar kind of, wouldn't that apply then? Would that court decision then apply to this one also? It might or it might not. Again, that's a decision though that was not subject to appeal and so we don't have a binding decision from the Supreme Court on the issue. So, there's a lot of clarity. There's also the possibility that an entity that meets some of these tests would decide, well, yeah, but that doesn't apply to us because we're quote different. And what this does is it intends to have the legislature take the lead and codify what it is that we want subject to our Open Records Act. And I thought that bringing clarity to this was particularly important. So, I think that at some point we'll have, we'll specifically go through this, build on what the definitions are and stuff. But I thank you for any questions for Senator Brock. Thank you very much. Thank you. Yeah, so we'll go through it in more specific detail later on. Today we're just kind of getting all the thoughts out there. Thank you again. Thank you. Good afternoon. The record is Tanya Marshall, State Archivist and Chief Records Officer. I greatly appreciate the invitation to testify. Can you just send a little closer? No, we can hear you. Can you hear me? I feel like everyone can hear me at this point. I'm just going to, it was open-ended in terms of public records. So, based on some testimony last week at House Cova, some kind of framed it. The Vermont State Archives and Records Administration is charged with administering statewide records and information management program for all Vermont public agencies in accordance with generally accepted record keeping principles, just like there's accounting principles, there's record keeping principles, and also other industry standards and best practices. The statewide RIM program, which calls for sound and effective management of public records and information regardless of format by all public agencies is actually cross-referencing the Vermont Public Records Act in 1VSA 317A. Just briefly, you're not familiar with the generally accepted record keeping principles. I have them listed in the handout, but they're eight of them, and they're not going to sound too scary or overwhelming. The first one's accountability, who's responsible for your records at a high level. Transparency, what kind of documentation do you actually have about them and who you can provide it to? Integrity, do you have the right information? Is it correct? Is it accurate? Protection, are you protecting information that needs to be protected such as exemptions? Compliance, are you complying with the record keeping laws for which agencies and departments have a lot of them between federal and state statute? Availability, are you making information available to the right people at the right time? Retention and disposition, how long do you need to keep it and how can you destroy it, or is it transferred to the state archives? The latter, or by law, is required for public agencies to actually have permission from the state archivist to destroy a record, so we have a whole process and how a record scheduling occurs. As Vermont State Archivist, Chief Records Officer and the state official who's responsible for directing to SARA, Vermont State Archives for Records Administration and the statewide grant program, which includes the state archives, I'm in a unique position to discuss many aspects of the PRA, including but not limited to the legislative intent behind the PRA based on the General Assembly's own records. Those are in the state archives, so as you sit there, you'll come into the state archives after the biennium. As well as the records of other public bodies and public officials, particularly around the public's right to inspect or request an agency to provide copies of public records and the public policy of actual costs. The answer, and I can also discuss, the interrelatedness and dependencies between the management of public records by public agencies and the ability for agencies to effectively respond to public records requests. So your ability to respond and availability principle is directly related sometimes to your management. So just two areas I just wanted to briefly... Can I just ask a question, or maybe you're going to cover? Yeah. I know that at some point in the past, records were kind of in disarray and it was hard to find something. In fact, when I asked for the original contract between Vermont Yankee and the state of Vermont, it was never found. It just didn't exist anywhere. You're still looking for it? He looked for it. But anyway, have we gotten better? Have our agencies under your direction become better at these aid principles? So underneath those generally accepted record-keeping principles, one thing that I did not mention that's in my written testimonies is that there's actually a model, an industry standard for measuring. And that measurement can go from a scale from one to five, one being substandard and five being transformative, which means that as a government within the government sector, if you've applied that scale, we're making really good decisions with really good and right information in front of us. So in terms of, in my testimony a little bit later, I can offer to you if you wanted to know the status of public agencies, but I think there's some context before I get asked to make that question. That would be a great thing. So just two things, areas to touch upon. I know that 1BSA 316 Access and national costs have been coming up. The current came up today. So I just want to point out what the archives can tell us and if there's something you would like me to do to facilitate that, I'm happy to do so. The Vermont State Archives consists of state public records that have continuing value to the state of Vermont as citizens. The Vermont Archival Records document the rights of citizens, the decisions of government and the history of the state of Vermont. These critical public assets also provide context for the decisions and actions of Vermont public officials and agencies, as well as the means for measuring the effectiveness of public policy over time. So the Vermont State Archives and Records Administration on our website we have a whole continuing issue, what we call a continuing issue series relates to the Public Records Act. And it covers the legislative history of the Public Records Act from 1976 through the present. But the records in the archives go beyond that. So one of the things that can provide greater context for the understanding of the PRA and 1VSA 316 specifically and the public's right to inspect or request an agency to provide copies of public records and actual costs can be provided to you. I can show you exactly what the committees were discussing at that time. Specifically what language means. Your records are much more detailed than what you see in the current Act and the historical notes that are in the Vermont Statues annotated. So when there is a question there's a lot to be value added by understanding what the committee was actually discussing at that time. This also includes the Uniform Scheduled Public Record Charges for State Agencies. That's the rule set by the Secretary of State. That's the rule that sets the cost that agencies can charge when asked to provide a copy of a record. That rule has gone through, for example, the additional records that we have in the State Archives that when you go through rulemaking and the legislative committee as well as the Interagency Committee and they have records in the Archives too. So it can tell you what the intent was and also what the intent was understood by those two committees as well as the Secretary of State. So it's much broader information within the Archives and I'm happy to provide that additional research and also copies of records in the State Archives that should be interested in that. Now related to management just for some background just for context I entered the field of Archives Records and Information Management in government record keeping. There had been two federal decisions that came down based on two law cases. One was Armstrong v. the Executive Office of the President. This was in 1996 where all of a sudden email was a record. There was an argument that email was not a record and now that has been long decided and also public system versus John Carlin Archivist in the United States. That's related to electronic records electronically stored information specifically metadata. Some additional information that provides context to those who are requesting records or using them even internally. So as a result of that there was a shift in record keeping so when I was coming into the field I had really an extraordinary opportunity to study under a multidisciplinary team. So it included although I sit here as State Archivist and Chief Records Officer it actually included national leaders in business, technology records and legal including Lee Strickland who was the Law and Time Freedom of Information Act Officer for the Central Intelligence Agency and he was also the former director of Information Policy at University of Maryland. So it was a pretty exciting time. Obviously public records and information and all the interrelatedness among public records laws information policy which is really talking not just about dissemination of records but the creation and the management and everything leads up to them as a policy information technology and also the willingness of public agencies to actively participate in their own information governance has been the focus of my career for 20 years. So now everyone knows how old I am although I have to tell you being in the state of Vermont for the last 16 sometimes it feels a little bit like a social science experiment related to public records but I enjoy my job and I love it. So with that in mind as you take testimony on the PRA I suggest keeping the following in mind. It's not only expected but required for public agencies to manage their records and information in a responsible and effective way but we shouldn't have to rely on laws to tell us to manage our records and information with purpose. So as public servants we are here with the public and our actions and our decisions should be based on the right information being given to the right people at the right time and sometimes that includes the principles of availability and protection and the general accepted record keeping principles go ahead and have. If unable to efficiently provide non-exempt information when requested there are also equal inefficiencies for providing exempt or protecting exempt information in records as required. So if we're having issues providing because we feel that we have to redact and review and doubt I have questions about how we're protecting that same information. So you can't really solve that through lawmaking as much as through information governments and better information security. So just keep that in mind because I do see that a lot of the agencies and departments will be reactive state versus a management state. You know I take in records from all three branches of state government they're not even records that we created or produced as a secretary state's office and there's many ways that we make it even though they're not our own records to make sure that we're providing available records in an efficient effective way and protecting the exempt records and that's an information management practice. So again it's not something the laws are there to find what you want exempt if you find what you want available just know that those two things are principles that need to be that go together. So if you hear availability issues then I also get concerned about protection issues. That said the struggle is real you know when it comes to public markets request but it's just a symptom of more systemic problem within state of Vermont and not the cause of one. So kind of as a state you know given my background and what I've seen in being here we silo our expertise in information management and policy and technology and legal. We normally collaborate together and we do this more through bureaucratic and sometimes superficial divisions or sometimes even personal you know elected or appointed officials to make a determination not to collaborate for efficiency purposes and that really makes for failure because it's up to performance and processes issues, technologies that don't work with the requirements that we have it's just inevitable. And also my experience here in the state of Vermont is that you know records and information management professionals like myself you know I could have went on all different tracks but I chose this one sometimes we're often underutilized within the state and undervalued. So the question they ask is do you actually have I went to graduate school and also continued on to a doctorate program so but there's there's that kind of profession and I don't always see that and it's very rare. So I'm having to provide any additional information related to the statewide records and information management program our own analyses of the maturity of the internal records management programs within the state and local government because we covered both areas and how where I allocate my five five records and information management professionals at the state and local government there's about seven FTEs in the entire state with this job title five around my stop and we allocate one specifically to AHS as a whole just because of the needs there but they did not have their own full time and then I also provided some statistics I have 18 FTEs total for the Vermont State Archives and Records Administration and we do a lot of different work state archives state records and through the digital archives we do public records we do the vital records requests on behalf of the Department of Health that's where the now certified copies of birth and death are regulated the records of records remain open for public inspection and copying in addition we do the Administrative Procedure Act runs through our office as well as legislative action resolves so in calendar year 2019 we did across all our operations more than 69,000 records related transactions and included 3,356 requests to inspect archival records in the digital archives 3,142 requests to inspect archival records in the state archives physical within the while we have a reference room for that 614 requests to inspect records in the records center this is where an agency is storing something with us but we are providing the service for them and 573 requests to provide copies of archival records in the state archives I'm just curious Tanya I'm sorry the light is really just driving my most recent eye surgery berserk so I apologize I'm not falling asleep I'm just trying to see you the how much time would you equate that into it's wonderful to have those statistics in terms of how much time what's the time frame is there an average time frame for like when someone makes a request to estimate the copy for something what's your time frame and your office of course is dedicated to this purpose and to providing an opening access to public records so it's not like another department that gets asked and isn't necessarily fully engaged in this work our purpose is for records in the state archives to manage them the same as any public agency would manage we're just the extension of their records management program so archival records are a smaller percentage of the big set of the records but do you have an average time frame so when we get to have for different types of requests sure so vital record requests we did about we did about sixty five hundred last year we do that within 24 hours copy requests we have a public reference room that's open nine to four Monday through Friday individuals can come in and inspect records there they are allowed to do their self-popping if they use our equipment they'll get charged for the underneath the uniform they can take photographs and they can move on from that part of it on their own so we do have that venue that people come in and then agencies that store records in the record center which is a separate facility have the option of doing that and we provide the service on behalf so we usually run that that room is we have an archivist on call who will come into that room when somebody is in there we also have an administrative service but in terms of just a copy request depending on what it is it is in the state archives if it's on a real to real which is we're trying to get it converted and get the funding for that an individual has to come in we do not have the appropriate equipment to make a copy and that's within the scope of that however if they want us to work with them so that might take that's not really a copy request a legislative audio that's on a cassette that's a real time duplication so depending on how many we just let the individuals know we have a lot of great conversations I'm by background my master's degrees in library and information science and so the biggest thing for that particular skill set is precision and recall when someone makes a request to you one, they often make it in the form of what they think you have versus what they need so it has to be part of the dialogue and the legislature did put that into statute a few years ago based on the recommendation from the Secretary of State's office or Hibari Samford because that's a typical records and information management kind of approach to it and then precision and recall is really about managing records and getting the records structured inside the system in an appropriate way and stored in an appropriate way so that when someone does give you a request and you narrow you're able to precision as you're finding exactly what they're looking for and recall as you're getting everything that you have there's a whole science behind doing that and that is perfect records management so we're able to unless it's a copy request that is just the way the information is that we've received and it might take a little bit longer but usually it's within 24 hours so let's say it's a real to real, let's say it's from the 70s so real to real from the 70s we cannot yeah so whenever real to real we do not have the duplication equipment for it so individually come in and listen to it do you have little moves like foreign language moves for you? we have a whole area of antiquated equipment that they can listen to it so one of the objectives of the state archives is to make sure we're preserving and providing access and that's true for the archival profession so we're always able to provide access our digital preservation system which is also in terms of digital archives is really incredible because it can bring in almost any file format even back to WordStar which predates a lot of government agencies in the state of Vermont had WordStar can bring that in, we can preserve it we can see what it looked like as it was created by that agency in 1988 but we can actually render access through a current means it's just Adobe so there's a lot of capabilities for that so if we can provide access that's our key part, if we're able to provide a copy, if someone has asked for us to provide a copy it's dependent on the equipment that we have and the format that the record is and just to finish when you say our office is designed and managed to enable people accessing public records so you're saying the time you didn't really say what the average time is it sounds like the time is minimal given that's what you're designed to do well given that's how we manage our so the difference would have been buildings and general services prior to 2008 and the creation of Vermont State Archives and Records Administration was not only the records management part of it but technically the state archives because the Secretary of State's office was only responsible by statute for the preservation of governors records and legislative records so all the other records were kind of left to their own so they did get into middle sex and so forth but those records were just as it as they come in so part of our work is to make them more accessible make sure that we're managing them and also preparing because we do get recent records and we have a number of agencies ready to do transfers that we are watching to make sure that they're managed appropriately so we do not get inundated with an unexpected situation where there's exempt or not really clear what information is then how we manage so yeah so right now it's because it's not because magical for applying our records and information management skills to make that real in fact we have a records management system that manages the whole space and all the records in that those are tools available that we do and that's the broader part that we'd like to have for the rest of this year I'm wondering about digitization of records so do you scan paper documents and turn them into digital records or do you always keep original paper so we digitize certain sets of records for example the legislative real real tapes that's an issue right now where access is really dependent on old equipment so we would design that to try to get that digitized we're currently looking for funding for that as a whole it's much more for our operations as well we have paper analog and digital records our focus is digital born digital records and ensuring that those are preserved in an appropriate way and then when we digitize one of the things it has to be return on investment for that it is much more costly to preserve one say cubicle baker box of records it's more costly to preserve it electronically if you expect the preservation and access and availability to happen it's cheaper for my $2 that it might be to sit on a shelf so we really play those by ear we're going to be pushing out this year based on certain parameters as a request for one as a request for all so and that means if we do digitize something in response of public records request which is most common almost all our things are public records request where maybe it's paper record we digitize it we pass it on to the agency or the request for that and then pushing that into our digital preservation system and making it available online there's no redaction but the cost the return on investment for some of that is actually not there so our priority would be using our funds for born digital because we're not going to print those out it's actually more efficient and when you're digitizing you use something like optical character recognition meaning are you going to extract data out of it keyword them or what we do is there's national and international standards related to digitization in terms of record like metadata that's associated with that and then yes it would include that if it's a paper document and we're scanning it it would include the full text component of it and then it also include other attributes that make sure that the record can be accessible different standards that we follow that are related to records and information management and then just the last piece as more and more things are created online do you in some way regain the ability to see those online forms they once would have been a paper document but now we're going online and then it actually flows into a database so I'm just wondering how much of that data stays available in one form for how long so one of our charges underneath our statute is that the statewide records and information management program includes life cycle management for records so creation management that's going to be with the public agency archival records and have the ability to be transferred to us so in terms of a lot more digital records the key part for a digital preservation system is that whole gamut of that and there's a process by which agencies can use that transfer records for us into there but there's electronic records have been databases are very difficult in some ways because you can bring the whole database in but you want to actually be able to show the functionality that people have been using it so one of the things we've been looking at is with even the Secretary of State's office we have corporations, we have corporation records we have this whole database I can bring the object into the digital archives I can serve it but the functionality is still a big research area that's happening right now internationally to make sure that the user experience and the ability to know that this data was associated with this content and this is how it was related together and be able to have someone access it the same way but right now we've been doing it with our digital preservation system with some not as sophisticated systems from the past that state government used so I don't know if that helps answer the question or I'm sure it sounds like a big challenge I'm sorry it sounds like a big challenge because over time the software the front end will become more and more obscure and the data so the digital preservation system that we use the state of Vermont was one of I think six or seven states it was part of a large federal project starting in 2007 so the key part was that it's the system that actually buys all the proprietary formats and it also can tell us because there's some fonts if you're using a certain system and there's a font that font might be proprietary so you're using it all of a sudden the next day the font has the proprietary license expired and all some of the documents blank so there's there's actually a lot of really interesting which I don't want to take up I can talk about it for hours but yeah you're welcome to come and visit those are the kinds of challenges so when I on my state archivist hat those are the things that you know even in addition that we're trying to make sure can show that the public record and the archival records to state are well preserved and accessible thank you I just want to understand something in terms of where you come into the picture if I make a request of something related to the DCF or the agriculture department or something but it goes back in time I guess you're gonna be it's not the AG department's AG agency staff that's doing the work it's your folks that are doing the work and then they send it to the AG department and I go into the AG department sit down with them and they say look here's what we found for you but actually your folks did the work we can respond to public records request if that particular department has transferred its older records into the state archives what we often do because we operate the state record center and that is often the case where some records have been over time is you kind of walked into a facility that was already operational we will work with the records officer from that particular agency to try to ensure that we're trying to find so there's a collaboration that occurs when there's the search for older materials that may have you know the current staff don't know what happened it could have been in the record center prior you know her number we have things in the record center have been there for 60 or 70 years that we are working with the agencies on identifying and making sure that gets transferred but how is the soonest that things get to your folks I'm sorry I couldn't hear you how soon do things get to your folks like if I'm looking at it for a records request if something that happened five years ago is that going to be in terms of the records of life how soon it will get into the archives it depends on the records schedule so the records schedule covers the life cycle of the document so we get some records the good example is the legislature right after the biennium in the summer your legislative records for this biennium are coming into state archives we end with a public records request for that as soon as they come out to transfer governor leaves office the day that the an operation occurs that switch happens so it really just depends what we don't do and we schedule the records is that if there's a requirement for the agency that the records can change or a case could be reopened and may have some other dependencies on that record that's not a good criteria for transfers to the Vermont state archives and records administration so do you I know that this is your business but do you ever charge people to find a to find I come in and I ask all charges are done underneath the secretary state's office sets the uniform charges for state agencies and it's based on providing the physical copying of a record so we follow the our own secretary state rule for that so it is physically so when we charge it will be based on that rule if we're at the copier for more than 30 minutes for example a large file then there will be a charge associated after 30 minutes based on the uniform schedule so if I came in and I asked I just want to see this thing but it takes you four hours to find it I mean I know because your records are well there's possible that we can't find something and we would never charge and I think there's individuals probably here who have been in our facility and come to our reference room and kind of explain that we will do our best to find it based on the tools that we have there there isn't always clarity that again for something that's in the state archives for example I was looking for a legislative report we itemize as much as we can how it came from ledge counsel into us but it's not where it's supposed to be and we have exhaustive all efforts but we don't charge for that at all there isn't a provision for charging and years are already set up so that anything that had to be redacted was is redacted already or if you had to go through and redact and a certain amount of time redacting would you charge me for that no for that time we don't charge for redacting now it's not within the uniform but they're also not in a position you are records we have the records we have in the state archives span all three branches of government and include records that are present there's different ways that we work on when there's a transfer paper record keeping system within the agency department so maybe we're taking records that they have to maintain in the paper as part of our records and information management specialist being out there with the agencies and trying to work with them to make sure that they're managing their records effectively there's going to be a segregation so that's best filing practices really to segregation we also in the scheduling process identify every single legal requirement record keeping requirement around a set of records so for where for example that a certain set of records require a social security number on a particular form that we know we're coming into the archives we know exactly where that's going to be located and when we get that records request there's two things that we do we're pretty transparent and letting people know there's exemptions on the records up front so often times when we do get the request people are asking us more can I have a copy or can I see something that is not exempt and then if we redact we're redacting right at the copy process I would love sometime to just get from you not right now but the list of the where the different agencies and departments are in terms of your 1 to 5 scale we have to provide that to you and then if you wanted information or legislative history related to any of the parts of the public record to act you're welcome so you did 69,000 transactions in 2019 is that a steady kind of number is it going up? that number is going has gone down a little bit only because there's been some changes so the biggest change probably is related to more vital records so one of the things prior to that we're kind of an extension of the department of health and those records the paper birth and death certificates are now in the record center yeah it's just more and the finessing of their records in the record center so in terms they haven't asked us not to provide access to them through them they'll handle them through their own public records request whereas prior to the change in the law those records were being more widely used for our facilities so those numbers have gone down but on average we're about between 70,000 and 80,000 I know the expungement some of our transactions are providing copies back to the agencies so the microphone around the state of Vermont was pretty rampant and underneath some of the expungement laws sometimes our copy requests to provide copies back to the agencies and their own records can be up into 8 or 9,000 pages a month so we've been working with the judiciary and others to try to bring that down so realistic provision because it just wasn't a good approach and the legislature passed a law to kind of facilitate that I'm just if I could just tag on to Anthony's question about when agencies and departments and the judiciary send you their records with the legislature it's very clear we have an end of session it's easy and we send everything over after that but is there a rule of thumb for everybody else like a year or six months do you give us that chart at some point and then we know where ever they reside doesn't the public records request is based on a record of completely different factors and I can provide it over you a different time for that the request for the public record whether it exists with you or with the agency is a request for a public record so whenever they transfer is irrelevant to the request well yes and no it sounds like you're currently set up to deal with these requests if your question is more than yes we have a lot of agencies that are very interested in that their schedules can show a transfer to the one state advisor where it's an administration or destruction and that's our advice too we don't need to maintain records longer than we need to that's within the state archivists for me to put that into the schedule and that actually facilitates accessibility and we search through a bunch of stuff that isn't necessary to do so and the public agency is able to clear out unnecessary information that's pretty efficient thank you Don Chris we have you on this deputy commissioner review on the list next I still want to hear from you and I guess you didn't want to take us to dinner I wouldn't make that inference Madam Chair for the record I'm Chris Herrick deputy commissioner of public safety I can tell you that 35 years ago when I started firefighter training the last thing I thought I'd be doing is testifying about the administration of public records in front of this committee but here we are this is a little background over at the Department of Public Safety the responsibility of responding to public records request falls in my portfolio and so almost every one of the ones that we issue comes across my desk in one way or another last year I just ran the report this is a listing of all the public records requests that we filled last year would you like to take a guess how many the department did last year well it looks like you have about 10 pages there I would guess about 2,000 anybody I'll tell you what if you guess it within 50 I'll buy you dinner but no you can't get 6,320 you're over 198 so if you take out weekends and holidays that works out to about 18 a day now to be fair some of these require about an hour's worth of time and some of them require up to 40 or 50 hours of time because they can require they involve hundreds of pages of documentation and were required by statute to remove any reference BII any victim information in most cases and so the redacting process takes a very long time and this includes both paper electronic written exhibits but also video and audio so we spend a fair amount of time doing this we have one person assigned to this, this is their full-time job and right now two days before you came back she left for another job so it's a perfect timing but I spend probably 10-15% of my time on public records as does our general counsel and a lieutenant from the state police probably spends 25% of his time if not more and there's another full-time person who works on these we have a constant backlog but we try to get them out we do get them out as timely as we can so I'm not sure if that's helpful or not I do know I couldn't get the exact number but I believe the Department of Public Safety handles roughly 60% of all public records requests for state government really? yes, ma'am so, Chris do you municipal departments, I mean you handle public safety requests for the public safety crowd to fall under your permit which are the state police but you don't handle the public records requests for individual municipal department so now it gets complicated though but let me start with the easy part of that so most of our public records are for the state police the Division of Fire Safety Emergency Management, Homeland Security the Forensics Lab the VCIC not coming with us and the marijuana dispensary as well in terms of a municipal request sometimes the State Police is asked to investigate a municipal happening and so then they become our records and their records and we will get the request and so but generally speaking if it's a for instance Burlington Police Department has an incident that does not involve any state police then they will own the records and they're responsible for the management so to answer your question we don't do generally municipal and just to finish on that the vast majority of us with the Vermont State Police that's correct Kristi do you have your hand up so up to this point have you do you charge anything for when I come in and I ask for some kind of a record and when I ask for it do I say to I want to look at it or I want a copy of it would you charge me for anything that took a long time let me clarify your question I'm not sure I asked it right if you're asking as a typical public record we're going to provide the documentation to you we'll send it to you electronically you're in the mail we have the option if it's an awful lot of time we'll send you back saying it's going to take us 25 hours and this is how how much it will cost less the amount of time that we're required to give and then we'll negotiate with your radio and your scope which happens often and it's actually a valuable tool to be able to do that because if somebody and I'm going to answer your question it's where I am but if somebody sends it hey I want every police report for the last 6 months that's going to take us 100 hours and it's going to cost you X amount of dollars would you like to narrow your scope yes I'd like every police report written by Officer Herrick in the town of Grand Island for that time if you want to commend and inspect the records any time frame will exist but we won't charge you we're not going to charge you if you want to commend and take a picture of that record or anything like that so the distinction is what do you want to inspect it even if you had to go through and redact information that's correct you're not going to charge we're not allowed to I see that now so why I guess this isn't a question for you I felt we had to chart some place that you can charge this amount per hour for certain people and this amount per hour if it's somebody else but we're not going to have if we're charging only for the actual copying of it we're not going to have the secretary of the agency doing the copying so we don't charge for I mean the fee is based there is a calculus for it and it's we can charge for staff time for the redaction because that's where the time really is but that's the preparation you charge for that whether if somebody is just inspecting or if they're just inspecting and you have to redact you don't do it no matter how the information is presented that's correct but if you give it to me and I take it home to read it then you can charge me for it and you can charge for the time of redacting it correct that makes no earthly sense at all but I will say I think it harkens back to a different time when somebody says hey I want to come in and inspect and they can sit and go through the record but the laws have changed from when that was originally written but even then you had to redact I don't think the redaction policies were stringent but I wasn't around back then what if I came in and said I want to see the video of this I want to see the body cam from this or if a video of that that there's a lot of information on those that I should not see correct but I just tell you I want to watch it I don't want a copy of it we would still have to go through and redact portions of it that perhaps has a license plate of a person not involved the other part I should say is is this even part of an ongoing investigation and that's just this whole other set of rules and we get it done but we do need to redact it if there are innocent or non-involved folks in there we need to not the blue dot anymore but we pixelize faces and remove voices too of people that should not be heard so if I ask you for a copy of that video you'll charge me for that time but if I say I want to just come into the headquarters and look at it once you've redacted you're not going to charge me for that time well I guess from now on no one will ever ask for a copy I know we're going to make an office for some people I know who might be sitting in the room okay no I did have one more question there is the you have the equipment necessary to copy that records I mean you have a copier and you have the equipment that would be needed for whatever copies and I'm just reading here and it says public agency having the equipment has to utilize its own equipment and if it doesn't have the equipment it doesn't have to nothing shall be considered to require the agency to use or permit the use of copy other than its own okay I guess that's a question for some other people well we have some of our documents are just electronic we would like to get to a point where paper was frankly it's easier to redact that way if you have an electronic one okay but yeah that doesn't seem to apply to us yeah okay thank you thank you for your time thank you and when we get here I think we need to talk a little we want to talk a little bit more about the dispensaries and what is public and what isn't sorry no yeah no just one with Chris do you have a notion of how you translate your 4598 requests into time so I haven't done that analysis and it would take a lot of time to do but I think one of the things that I want to start doing is a new year tracking and we may be doing that and I don't have it in with this this was printed but I may be able to go back and figure it out do an average to do a percentage of how many are crash reports that the tracks companies are looking for and how many are the various types so I'll look and see what I can do in depth analysis on that that is a public records request it is that I just made great make the 4599 you just want to get closer so you win dinner thanks again thank you you're next on the list and we have actually TJ by phone at some point after three everybody else is here okay good afternoon the record Steve Howard Executive Director of the BSEA I don't have too much to say I have a few things to identify just in general about public records the first thing I think the most important thing that BSEA would like to convey is that we steadfastly stand by the exemption from the right of the public to have access to personnel records and we understand that that's going to be an issue this year that probably will be discussed in the legislature it's a battle probably going to wage with the administration is there some kind of a bill about that or is isn't a bill there is discussion about confidentiality of personnel records particularly around discipline and our view is that our members have a right public employees have a right to privacy that they have a right to have the discussion about disciplinary issues between between the employee and the employer and that it not be something that's we shouldn't be handling disciplinary issues personnel issues in the press for instance it would not happen with other private employer employees we don't think it should happen with public employees we would ask the committee if that does become an issue to resist that I think that's that's an issue that we think is important in general we support widespread access to public records as much information as we can get at the cheapest price we can get it we have had some issues in the past I think with agencies not allowing us to use our cell phones to take pictures of documents which has been somewhat of an issue for us but with the exception of personnel records generally we weigh it on the side of more access at the lowest possible cost and it was interesting to hear some of Senator Brock's testimony the one area where we have had some struggle in particular around getting access to information is around entities that are provided the private entities that were created by the state government essentially and they operate in state buildings doing state functions and they're funded through a state grant and as such their position is that they are not subject to the freedom of information act we think that's an issue that needs to be addressed and the public has a right to know how that grant is being used how those funds are being expanded with their effectiveness is and we have been told to deny access to that information in connection with Senator Brock Bill do you list a very specific fund there but do you want to sometime give us a list of who those people are we have actually well I have not read Senator Brock's bill in detail we happen to provide that but they would meet those criteria that he's they could they're likely to is there a line between the sort of entities you're talking about and just private vendors hired by the state to do work and if so how do you choose where to draw the line in terms of access to information I think that's a good question I don't know that I know the answer to it I do think if there's an entity that is performing essentially the same work as state employees and they are occupying state space and they were created by the state agency that may rise to a different level than just any vendor for the state but I think it's a good question and I don't have a definitive answer for you but it depends on the degree of state involvement as we go forward with Senator Brock's bill if you have suggestions around what those criteria would be that would be great should I be happy to provide that Alison would you have a question I'm just curious if there have been public records requests on personnel records given that you raised it as a concern have those been made in the history of state government I'm sure they had that you don't have time as executive director at the VSCN I don't recall on the top of my head I think this is the first sort of open discussion of the availability of personnel records I'm sure it's possible in the seven years that it's happened this is the first time it's really risen to the level where I've made I've been made aware of it I believe that we address this a little bit around teachers and around law enforcement officials a few years ago and then it's a balancing act but it is a balancing act because state employees or Vermont state police also and they're on video camera their behavior is possibly open and often open to a public records request so their behavior is experienced it's just interesting to that's very complicated I think the issue is video treatment of correctional facility for example is a public record inconceivably in terms of looking at your personnel and not necessarily the person for some record but being able to see a VSEA member in action but anyway but it could a disciplinary issue be related to that an investigative report I think the difficulty is once you read the battle it's hard to unread the battle and when people's reputations are at stake we have to be cautious about that thank you very much and for the record Madam Chair anytime you or any of your guests want to go to Saru Cheese I am happy to bring you just not to pay for it going to Saru Cheese with the chair is a blast I can only imagine what it would be like with Gail and company and Tucker that would be fun do I need to say my name I'm Patricia Gable I'm the Vermont State Court Administrator and I don't have prepared remarks but I thought I would just do a reframing that the judiciary is a separate branch of government handles public records issues through rules adopted by the Supreme Court and very recently this past summer after a very deliberative process the judiciary adopted new rules for public access to court records and part of that was simply because it was time to take a look but it was particularly motivated by the fact that we are transitioning from being a paper based system for our case records to an electronic based system and so what the committee that handled this and there is a standing committee in the judiciary not only had many many meetings but also conducted public outreach for comment hearing and so these are brand new rules we're still in the process of getting used to them because in the old days under the former rules if someone wanted to look at a case record it was a paper file you had to go to the place where the paper file was and the like now that we will transition into electronic records the court administrator becomes the custodian of those records and developing a process to make sure that all records request are handled appropriately will happen in this electronic world so we're very much as we're configuring for our case management system including that in there the other thing I might mention I heard some other people talk about how the requests have increased and I can say in the short term court administrator which I think now is six years requests for public records copies of public records have increased dramatically and so that's actually become a big part of my job and that's under the old rules so we will part of our structure will be to try and make sure that we can continue to handle those requests in accordance with the new rules and the kinds of issues that we deal with not only are the issues of making sure we were redacted records that should be redacted we have files that are completely confidential or we have things in a file that are confidential so there is a lot of work that needs to be done and we're hoping over time that redaction software will be of assistance with that that is developing now and so that's something we're looking into and another thing that weighs heavily on us generally regarding the whole issue of open records is the way the world is changing so that more and more private information becomes weaponized against people and looking at how can we be accountable in all ways and provide more data so that people can see we're doing our job right and the criminal justice system is operating correctly and yet inadvertently contributing to the weaponizing of personal information I think that's a threshold futures question and I'm only beginning to think about that now as we start to develop our practices and procedures for public records do you charge so if someone I think it's not dissimilar so if someone asks for a copy of a paper record that we have now we will charge the cost of copying I think our rates are the same as established by the Secretary of State we do not charge if someone wants to take a photograph of a public record and at the moment we're not charging for redaction so we will we have all the same issues that other people do so we didn't have authority for that so it's a similar thing once phones came around I suppose the question would have presented is that a copy or not but we made an administrative determination that it wasn't a copy and so we haven't charged for that right so you don't charge for that even though that might take a lot of time right so if someone comes and says we want to look at the record and again it's easier to talk about it in paper right because that's established what will happen is the we can't just give the record so we'll have to say we'll look at it oh we need to redact it and then we will either produce the document after redaction or we do have a procedure with paper records where when things come in the court is supposed to segregate I think it's pink or red folders so in a paper world the paper that's most likely to be available for public access is in one file and if we know ahead of time when we're getting something in that it's either it's a juvenile case or it's a medical file in a different kind of a case they're supposed to be segregated to make it easier for the clerks to do that and so the challenge we have now as we're developing our system is how are we going to translate that into an electronic world the other thing that's a little bit unique about the rules adopted by the court is that in an electronic world we put the responsibility initially on the filer not to file things that are exempt from access and so documents shouldn't have social security numbers or the like because there are ways that you could if those were relevant to the case you might provide them separately or under seal however the court meaning me not the court the court administrator also has the responsibility to review those records and so if I'm if you're filing a case you're told ahead of time don't give me the following thing social security whatever else is in there but I also wonder the rules have a responsibility or my doesn't need to review everything that gets filed to make sure that something doesn't become part of public records shouldn't I will predict how standing those double protections that there will still end up being information that shows up in the public record that shouldn't be there just because right now it's humans people are human and we don't know yet whether the redaction software is reliable enough to take care of them so that just leads me to ask the difference the time difference between redacting a paper file and redacting a digital file software to redact a digital file that doesn't destroy you know the digital integrity of the file yeah so there is in the marketplace so there is in the marketplace redaction software and so our research in redaction software is that it may not necessarily be ready for prime time but it's on the cusp of being ready for that and obviously once you had a reliable electronic way to provide a redacted copy of a document and you were confident and trusted that would be the best of all worlds and so again we're in the middle of the project and the technology is changing quite fast so our hope is that will exist but what we've been doing is thinking of our roll out basically we're rolling out a case management system we've already rolled out the judicial bureau and we'll be rolling out the southeast region we call it the wow region Windsor, Wyndham and Orange and we'll be doing that within the next two months the first priority is that the case management system itself work and that's sort of the behind the scenes piece and so we'll be using that region as a pilot how are we going to deal with different kinds of requests for records once they're electronic and so there'll be a period of time where it won't be wonderful but we'll be using that as an opportunity to see what's the best way to handle those kinds of things and you may be aware that there are statutes that prohibit us from putting online criminal family and probate case information and so we will once the roll out is mature have ways that people can come to the courthouse to view electronic copies of those but it won't be online or someone sitting and yelling in their living room in the pajamas looking at it and that in itself dealing with the difference between making sure that media have the access they need to do their work but also at the same time making sure that people who are unrepresentable against their lawyers in the courthouse have access to certain kinds of records all those things are part of this pilot period where we try to come up with different ways to deal with that and it's likely that it'll be different in different courthouses depending on what kind of usage is made in that courthouse and what the traffic is in the life so more to come more questions and answers right now our courthouses are very excited in our courthouse yes no we're we were we chose strategically in terms of where to roll out we felt that there was an excitement and enthusiasm in that region wow we're ready to go the wow courthouse I'm worried that after the rollout but we feel we feel pretty we know from our experience with the judicial bureau that we learned a lot from our judicial bureau rollout and so we've done a lot of things in advance of this rollout I think that will do as well but as most people know we've gone through technology transformations it isn't like you just turn on the light switch and suddenly the lights are on and everybody says great the lights work it really is, it's a project everybody's involved obviously people in the court but even the users of the court are part of the project as they give us feedback and we engage them in what's working and isn't working so we appreciate the collaboration of everybody and the understanding of patients of everybody are your rules for how you deal with public record requests public could we give a copy of those? Sure, they're right on the website and I could send you a link and they're brand new rules so the first time I've participated in some of the committee hearings but there were so many I couldn't go to them all so I finally had a flight that I took and I actually brought the book with me and read them all through since I'm the custodian of the electronic record so it seemed like I really better know what's going on Anyone questions for that? Thank you again Thank you for coming back I could caught something for tomorrow so Ann is not here I don't think unless she's hiding somewhere John? Good afternoon Thanks for this opportunity to testify about this so for the record I'm John Gromen I'm the Policy and Order Program Director for the Vermont Natural Resources Council and so in the vein of just having listened to everybody talk I just hope to share some of my perspective on this issue and obviously you're trying to figure out what of anything that you want to do in terms of legislation so my perspective is I've been a General Counsel of the State Agency of General Counsel the Agency of Natural Resources and I've responded to many record requests and I've worked now for BNRC in the past so I've been a Requestor from Documents and then BNRC was also we were in the Meekest Party to the Doyle case so we were involved with that case and we're pleased with the decision and I'll give an example of kind of why we got involved with that case and kind of how that came to be so that's just kind of where we're coming from on that and so both from being with the state government and outside state government just to state the obvious that the ability to access documents and understand what's happening in government is just crucial for government to work well and for democracies to work well and I'm pleased to say when I was in state government we got a lot of record requests some big, some small but we took them very seriously and it was important to let people know what was happening, what was the basis of our decisions and we would go through the records against the exemptions and in our world the agency and natural resources they were mostly attorney-client privilege issues and we held documents that protected that privilege because it's also important to make sure that people could get their advice from their attorneys but documents that were not subject to any of the exemptions and we never charged anybody while I was at A&R and while I was at A&R and since I've left A&R when I was there one of the reasons why we didn't charge people we had a pretty good record management system there based on the technological advancements that it would be seen in society and it's only improved since then so we get a request that we come in and most of the requests we got were emails and some documents but our staff could search very quickly they would be able to search very quickly identify the documents people would just shoot me over files we viewed the lawyer work of redacting documents we're already paying the lawyers to be there at the agency and as I said attorney-client privilege was really the main exemption that we dealt with and we just viewed that as part of the work being a lawyer who worked at a government agency is to go through the documents and then we would be able to provide files on FTP sites and really pretty quickly get the information of people and not charge them since I've been back at BNRC I've submitted a number of record requests to my former agency and I have to say that they've done a really good job in responding to them I have not been charged they now view sometimes charge and I'm not particularly clear on when and why but I have not been charged for any request that I've submitted to them and I've gotten the FTP site file just like I described to you and it's been I think a process that works well since I've been back at BNRC I've also submitted a lot of requests to the agency of agriculture so this is kind of the contrast I have and so the requests I submitted to the agency of agriculture have all resulted in significant charges and estimations of charges and long negotiations about the charge and delays of getting those documents and what I see is the difference between A&R and the agency and the requests are often for similar things it was you know our world and Sen. Gruber hates this very well you know big issue is water quality and you know the impact of fauna pollution on water quality so we would submit A&R record requests about that and then act and that agency and the agency would say well we don't have enforcement records you know we don't have specific enforcement files so we have to look at every file for every farm and that's going to take us a long time and we have one of the bills we got was for about $550 now we whittled that down after a negotiation and then the conservation law foundation that we work with often just submitted a request and they got a bill for $1,500 and so you know VNRC when we get a bill for $500 I mean if it's an important issue we're working on and it's something that you know is in our work plan and we plan for we sort of that console though it's not something we knew we were going to have to pay for and we certainly it's some bit of a hit you know because it was not in the budget but it makes me think that ordinary citizens I think how could they pay $550, $1,500 to get access to basic documents when I see these two different agencies working one not charging us one charging us and the big difference I see is record management the big thing I see is that A&R has used their IT staff to figure out a way to basically create electronic files and they don't feel it's as much of a burden you know the type of work that they do and I just think that as you deliberate on this issue it certainly seems unfair to charge the public for inefficiencies and agencies in terms of record management and that sort of discrepancy you're asking for the very same records really from two different agencies getting these radically different responses when I was in state government as a general counsel you know every couple times a year all the general counsels would get together and it became clear and records was always an issue it became clear to me that every agency was handling these record requests differently every agency was handling their record management differently and every agency was handling charging for documents differently and that seemed crazy to me and it seemed crazy to the other general counsels and we always discussed having a uniform system that was fair both in terms of record management and in terms of how agencies responded that's an issue that still hasn't been resolved and I think that's the big issue really here is bringing all the agencies into the modern era having good electronic record management so it isn't a burden and then I think there's the policy question which is what's fair you know when you set up a system that recognizes the cost of state agencies but does not allow agencies to prohibitively charge in a manner that quite frankly seems to be designed to just discourage people from getting the documents it seems designed so people will say you know what it's not worth it I'm not paying $500 I'm not paying $1500 I'll just walk away and that's a problem for government you know and democracy the inspect versus copy issues so when we got involved with the Doyle case it was in a large part because of all the issues that we had with the agency of agriculture and we started to make requests to inspect at the agency of agriculture so we can go down and look at the documents and then kind of hold in and help you really want it so we did file the amicus brief inside of the law the law that you've heard from you at the beginning and you know the decision wasn't that case um since the Doyle case the inspection provision has been helpful I have one instance where I did make a request to inspect the ag agency made no the old days I'm old enough now that like I don't remember I used to make requests to inspect and then it would be like a you know a box right you can go there there would be a box of documents and I would go through them and then I would say there could be hundreds of documents in the box and really I would sit there all day I'd go for lunch and come back it was really very pleasant quiet day I have five documents I wanted copies right so then I would say to whoever was in charge of this can I go use your copy machine and copy the five documents and they would say yes and I would pay you know 50 cents probably 10 cents a copy or something like that so now when I made my request to inspect they sat me in a room on a computer and I said here's all the documents on this computer and I went through them and I got to the end of the day and I said okay there was 100 documents and I said I'd like copies of five and initially they was right up to the door so they were like I think we have to charge you for the whole thing and I said I don't think that's consistent with the law I said I just want to hit print on these five can I just hit print and they said no but we could hit print and I said okay then go ahead and do it and they called some lawyers and they decided that they would print the documents and then they charged me like whatever the rate it was less than a dollar I think for the whole thing so that's how that went down and clearly it showed me that they're still trying to figure out the agencies are trying to figure out how to implement this decision I don't know where they're at I don't think this consistency as I'm just going back to what I said before and I think there really needs to be consistency as you move forward I just hope you consider all these factors and I'll understand that we need to have fair access to documents we can't have exorbitant charges that could be used to discourage people from getting those documents and the inspection option is a useful option certainly for a group like VNRC but I can certainly see for an average citizen that says I just want to go in and I just want to look right I just want to know about this one thing I'm not asking for an FTP site I'm not asking for copies of hundreds of documents so that's basically what I wanted to say and happy to answer any questions Don't you think it's kind of bizarre? Which part? In terms of when AGC is saying one thing is it ever safe to the AG department? I haven't as Senator Briggs can tell you the AG agency and ANR don't seem to care about each other's things as you know, right? I forgot about that So that's the whole other thing Well, you know thank you Mr. Bowman the point for me as a citizen legislator is we're lightly staffed we leave for roughly seven months of the year even in an issue you're trying to follow it's difficult to follow from home and at a distance so if we have groups like VNRC or CLF who have expertise, time, and are dedicated to looking at things on everyone's behalf it's a real problem if they can't really help us have a clear picture of what's going on and stand we all stand to lose And we don't really care who asked or why I asked it has to be because I know this issue and I've worked with these folks and it's been very helpful that they're asking these questions Thank you and we're not charging for it I appreciate that and you're not making me pay for it as well and yourself don't need it So if the legislative committee asked for could we as a committee make a public records request are we going to be charged or not charged for it? Good question Well I wasn't the guy that was asking you but since you're here I'll ask you Now I was just saying we see what citizens go through and what these organizations go through What if legislators as a group our committee makes a public records request Are we going to be charged for it? I wouldn't want to be the head of that agency that refused to give you records It just seems so That's a great question I'm thinking about an amazing request and sometimes the response is more vigorous than others So welcome Thank you For the record Jim Kondo Secretary of State and I want to preface I've got my cough drops here because I've had a pretty good head cold this week So if I take a break to put a cough drop I don't know why Thank you for providing me the opportunity to discuss the important issue of public records in the access in Vermont The issue is something that I've been incredibly passionate about It was a key issue when I first ran for Secretary of State in 2010 and over the past decade my deputy and I made over 60 visits to cities and towns all over the state to talk to every corner of the state to talk about the importance of open meetings, public records and right to know laws Just a few months ago my deputy Chris Winters and I finished up the fifth biennial tour round of what we like to call the transparency tour Before I go on I just want to give you a little bit of my background and I think many of you know that 18 years as the South Brooklyn City Council the last 8 of those years I was the chair 8 years in the Vermont State Senate where I chaired Senate education and this committee as well I've been in my approximate 10 years now as Vermont Secretary of State I don't just talk about transparency I actually walk for walk Those of you who know me know that I've been a long time proponent of government transparency and right now I think we can all agree that trust in government is at an all time low It seems like I make this statement every year and it continues to be true as the average Vermonter with what is happening in Washington DC and here in Montpelier Please don't think I believe secrecy and bad behavior are running rampant I don't but it does take it doesn't take but a few bad apples to spoil a bunch As government the public paints us all with the same broad brush I've always believed that sunshine is the best disinfectant and that if we want to restore public faith in our government the best way to do that is to ensure that our government is as transparent as possible I want you to understand that this really is about the public's right to know and the public is anyone that's not about the burdens on state government Just who is the public? It's Vermonters, our average citizens media, attorneys representing those citizens Access to public records gives the public the ability to audit, criticize and hold our government accountable By doing our work in the open it's as if we have 600,000 Vermonters looking over our shoulder, hopefully in the end we earn that public's trust I cannot emphasize this enough the records created in the course of government business actually belong to the public not to the agencies As government officials we are just the custodians Is it fair to charge Vermonters for the inefficiency of government I think I think that John just talked about that So what is the public record? A public record is any written or recorded information, regardless of physical form or characteristics produced or acquired in the course of public agency business All records created or acquired by the government are public records Some of those records have exemptions to prevent disclosure Public records are not limited to just paper records which is important seeing that it is 2020 and much of the work we do now is in a digital environment The bottom line is all government records again are public records though some of those are exempt from disclosure for good reason This committee, just like committees of the past we attempted to try to make further exemptions based on burdensome based on burdensome seemingly vindictive requests or requesters This will be a difficult endeavor and against the wishes of the public in general Anyone can request a public record Anyone can request a public record and neither the identity nor the motive of the requester can be considered when weighing access That was in Schlansky versus the city of Burlington Supreme Court decision back in 2010 and they actually said quote unquote the identity and motive of the requester cannot be considered when weighing access to public documents This is the law It is critically important to ensure that bias for or against the requester does not enter into the equation and that all requesters are treated equally under the law and granted access to the records which they are entitled It's also important to note that the Supreme Court has upheld the notion that while government agencies may charge for actual cost to produce a copy of a record, they may not charge for an inspection of a record That was the finding of the court in their 2019 Doyle versus Burlington PD decision Yet even today we have state agencies arguing they may charge a person inspecting a record for a copy when they snap a picture of the record with their cell phone To be blunt, are arguing that state agencies can seek to recoup costs from a requester for taking a picture of a public record with their own device while inspecting it is a twisted interpretation of the law and of this decision First, a fee may only be charged if copy is requested and if a government employee then produces that copy Second, they can only charge for the actual cost of the copy If I'm taking a picture with my cell phone what's the cost to government? Zero I understand there's a burden in producing some of these records for inspection and it is most often a minimal burden but there are times when it can be significant, no question In my view it is clear the burden appropriately falls on government, not on the public I also recognize there are times when significant redactions need to be made to protect personally identifying information or personal medical information or other exempt information and that too comes at a cost to the government Is it fair to charge a citizen hundreds or thousands of dollars to inspect the public record? I think not However, the courts have clearly stated that these costs when producing a record for inspection cannot be passed on to the requester Otherwise this would put yet another hurdle in the way of access and I can't say it enough the public has a right to know I will note, as Tanya Marshall has pointed out that if proper record management practices are in place from the get-go the time, energy and cost to the agency of producing these records is significantly reduced and I think we've heard other speakers say the same thing The time to manage records is not after you receive the public record request it should be done before the record request and I think Pat Gable mentioned that where they actually do that process that's where we should be looking to increase efficiency and cut costs through better records management and by harnessing the digital tools we now have and that are coming to the agency access better than ever navigating who to ask and how to request public records is a big enough hurdle for most monitors when you combine this with a denied first wait for the legal action mentality and then pile on costs on top of that the law did not contemplate we're left with a situation where the only option members of the public have is to seek legal counsel those are the people who so often call us rarely taking their cases to court and they become dissatisfied disgruntled and disenchanted in my opinion we should be looking to find ways to increase access not walking it back I have several ideas for the Improving of Public Records Act but this is not the time or place to go into it however in short I think Vermont should create and I do think that Vermont should create an open government ombuds person and clarify once and for all there is no charge for inspection of public records I'll close by going back to the underlying value that I believe should guide these discussions government transparency which includes the public's right to access is critical to functioning to a functioning democracy it keeps public officials and agencies honest and accountable while allowing us to prove we are worthy of that public trust most importantly it keeps Vermonters informed and in control and I want to thank you for your time and attention and I'm happy to take any questions so I have just I understand that this is a I misunderstood before I think so why it seems to me very and I'm not sure this is the right word schizophrenic this system that we have so if I as a private citizen ask for a copy of something I'm charged for the time that it takes them to prepare that copy in addition to the actual cost of the copy but if I ask to inspect it the same time goes into it but I'm not charged for anything it doesn't make any sense to me why would we charge anything to to prepare for making a copy when we don't charge I mean why do we charge anything at all then at all and why do we have a charge we have a charge chart because there was the assumption that we were going to charge for the preparation of the of the document why do we have a charge chart then there's four copies that actually says if you look at the you mean if an attorney stands there at the coffee machine and makes the copy we charge one thing and if a clerk stands there and makes the copy there isn't there a charge I'm not sure what I don't it doesn't matter whether it's an attorney a secretary or or a a staff person the charge of the copy the charge of the copy if you're using the state equipment then you're charged for that that charge the actual cost takes into account the cost of the equipment the cost of the electricity all those things I get that I thought that there at one point there was a some kind of a chart and I'm I guess I'm dreaming or in another lifetime or something but I thought there was a some kind of a chart at one point that said if Tanya do you know what I'm talking about the secretary stated you can see the uniform okay it's on our website right so why do we have there's a set no matter who's doing the copying and it's physically copying the record so secretary condos in terms of actual cost there's no charge listed on that uniform charge schedule that's set by statute and rule for repairing only if there's a request to make a new record oh there's a search there's three different parameters but that uniform schedule is the only set schedule that state agencies can use and then the local government can use it or have to use it unless they have actually gone through the same process within their own and that's for actually making the copies does it mean making the copies the charge goes back to the actual cost of the physical making of a copy that has been in the law since 1976 yeah so and let's understand why do we even have this law public records access 1976 what happened around that time Watergate exactly what are we discussing these days in Washington other issues like that but my point is that it's events like that that create some of these issues but at the same time if you look at what the constitution says then look at what our statutes which we refer back to the constitution it says that the public has a right to know I understand that I just think we have such a schizophrenic system here that if I ask for a copy I'm going to be charged all the time that it takes to prepare that no that's what we were being told about I think that's what Chris that's what people do that's what they so that's so why isn't that the way you understand how we I thought I understood it quite honestly when I leave this room in a little while hopefully somebody says to me do we charge for public records access I'm going to say sometimes we do sometimes we don't I don't really quite get it here's the point you know somebody said for the copy somebody said only if the guy pushes the button I mean it seems like it's all over the place so Senator White you made the comment that perhaps what we should do is not charge at all and I would agree with that statement well I'm not proposing anything necessarily now I'm just trying to understand the schizophrenic system that we have and I bet we'll hear from Wendy and Mike and some other people about this I'm not sure schizophrenic so much it's inconsistent and how does the balance have value but I also love to know what our cost is to the state I mean if that's even tracked for all for you know what are we spending in terms of time and what are we bringing in on those that charge chart do we even know I don't want to be a say it's free the Secretary of Administrations to report on that could work you can access that information through Vermont's open data portal how much does it cost how much did it cost to create the open data portal the data is comprehensive I don't know whether it is complete but you can see when agency posts that they have charged a certain amount has been paid you can see for that request not much was received by the agency we'll check that out and for reference the uniform schedule fees adopted by the Secretary of State does distinguish between different levels of staff there is reasonable staff time $19.80 per hour there is professional staff time and there is IT staff time which is the highest tier and the criteria all fit into complying with the request for a copy so they do charge for preparing it because it's complying with the request I just wanted to make sure I understood that thank you Tucker now you understand it but thank you Tucker because I understand it better any more questions to the Secretary thank you it's always good to be seen Wendy it's okay it's okay if you don't get done today if you don't get done today I can't come back to you Wendy it's good to see you we can turn you down a tiny bit the surround ones would be great I apologize it's just overwhelming for some unknown reasons staring at all these lights she just had an eye operation one of them dims one of them dims what did we do here a little switcheroo she said I could go that's helpful depending on whether you continue this until next week I can't come next week okay thank you I'm not sure when DJ is calling we're going to call him I tried to text the answer okay Madam Chairman and members of the Senate Government Operations Committee good afternoon I'm the Executive Director of the Vermont Press Association which represents the interest of 11 daily and roughly four dozen non-daily papers that circulate and cover the news in your communities and in Vermont I'm also here today my capacity as first Vice President of the New England First Amendment Coalition which is a sixth state effort by journalists, academics librarians, lawyers and just regular citizens who are interested in the protections of the Five Freedoms covered under the First Amendment and as some of you know I spent 47 years as a writer at the Free Press beginning my senior year as a high school sports writer these past few years of retirement some media outlets have used me to cover some stories and I've always had a love and belief in the public's right to know the truth and that's why public records are such a vital part of what my career's been around before I go on I do want to acknowledge the work this committee has done through the years on open government open meetings, public records transparency and everything like that as the Chair well knows she and I have talked about this a couple of times the BF grade that Vermont often got for transparency by the different evaluations state by state and that we're trying to move up and get you into at least the C category I still hope you're number one someday and you know even being in the top three or five would be would be good I'd love to be number one at some point for transparency the Press Association is here today to continue to offer our support and help if you may consider any new legislation including upholding the recent Vermont Supreme Court decision about free inspection of records since that decision in September Democrats led by secretaries and condos Republicans led by Governor Scott and many others have all made it clear that free inspection should continue to be the law pretty much everybody agrees unfortunately until I guess last Thursday I was under the impression in my discussions with Attorney General TJ Donovan that he wanted to institute a so-called pay-to-play or pay-to-read if you will government system charging taxpayers to have access to the daily operations of state and local government this is really about the cost of doing business for government the Vermont legislature as a governing entity has always been open to the public the copies of your printed bills the committee hearings such as this that you host the debates are heard on the floor they are all open to the public anybody can hear them see them the cost comes for this legislature out of an annual budget for the legislature to ensure transparency in my discussions with Attorney General Donovan he often cites some law firms are asking for records that might be used to sue the state of Vermont as secretaries they've pointed out the law is clear that why somebody might want to see a public record is never relevant that's the law it's also irrelevant as to who is asking for but here's the reality if that law firm just files suit against the state of Vermont without getting those records all of those requested records will eventually have to be turned over by the state through the pretrial process known as discovery so either we can do them now or we can do them later but at some point if they file suit they're going to get a copy and obviously when they get them in discovery there is no charge for anything so there's boxes and boxes yet there are several benefits to full transparency by giving the public records early to a requester the state of Vermont may actually save its taxpayers considerable money in the law firm the law firm may realize that its possible legal claim is unworthy and that no law suit is actually filed against the state of Vermont or that the law firm may realize that what they thought was a potential multi-million dollar judgment against the state of Vermont is really worth only a small fraction in that case the settlement can be reached early without the time and full expense of preparing a court case and the time and expense staffs and courtrooms the pay to play or pay to read model in government goes against all transparency traditions in Vermont does your local library charge residents to come in and read the morning paper or for your librarian to pull some historic book out of a back room because somebody wants to read it or anything else that they maybe have available at the library magazines or whatever no that is covered in the annual budget for that library why should taxpayers get charged to read minutes of government meetings or letters of town boards or even review the legal bills submitted to the town once you start charging to read public records you have to wonder if charging public to attend public meetings is far behind the legislature, the media and others should be encouraging all Vermonters to get involved in their local government yes it can be a pain to have people looking over your shoulder looking over the shoulder government leaders but that was how this country was set up we all know the opposite is much worse and that's why this country and state was found in closing just a couple of things as this issue of free inspection goes forward you can clearly expect those opposed to the government will invoke the sky will fall argument if charges are not made if changes are not made to the current law and make things more secretive that same old tired argument was invoked several times in the past on public records by people against transparency and some of you were on the committee when the couple of these things happened I will give you just a quick couple of reminders or cases several years ago there was a push to ensure public records were available at actual cost to taxpayers the legislature found that depending on the town or the office copies of public records cost taxpayers between zero and a dollar a page some towns were using excessive charges to help pay for its municipal or school governments paying for police departments and other salaries in some cases town clerk were even actually able to keep the fees that they charged for copy this committee helped pass the actual cost law and the current fee for photocopies is five cents is not losing money and the sky never fell in that case more recently your committee helped craft a bill that allows people seeking public records to recover their legal fees if they have to file a lawsuit and the judge determines the public records were improperly without by government again the attorney general and others predicted the sky would fall with this big change it hasn't the legislation actually has made government leaders more accountable and more responsive in most cases because they know that is an outlaw thank you for your time the VPA stands ready again this year to assist this committee in any of your open government transparency issues and I did have two or three other little things that I wanted to respond to Senator Brock mentioned the whole issue of this side things there are a couple of examples just throw on the table the Vermont Principles Association technically is not covered under open meeting and open government but there was a change or a proposal when Governor Dean was in office that the state education department take over the VPA duties they said they didn't want them and the VPA is a compromise said we will follow the Vermont Public Records Law and the open meeting law and that's one agency I can tell you the Vermont League of Cities and Towns subscribes to that even though they are technically not a government entity but their taxpayers supported because all their dues are paid by tax dollars as far as redaction goes and several people talked about management of the system management of the system it's been at least 40 years that I can recall that state government has been on notice our local government has been on notice about proper management of records there's a case out of Rowland County Senator you may remember this the Rowland I think it was the Rowland Herald sued the Rowland Police Department over the police law Judge Morris at the time basically ruled that in fact as we all know police law is called a public record but the argument was well there's sometimes confidential juvenile information on that and Judge Morris in his written decision said that's not our problem you need to manage your records and that's going back to like 1978 or 1980 I believe that case I never went to the Supreme Court but clearly I remember that case where it was you've got to manage your records it's been 40 years and we're still hearing people aren't managing their records so as far as the judiciary system goes I enjoyed what Pat Gable said the media has been invited to a meeting later this month to look at their computer system to see if it will pass muster in our eyes and the other thing in redaction is sometimes these I don't want to pick up the state police but they sometimes have two or three different people look at it and I fear that people are being charged for all these people to look at it maybe only one person really needs to look at it and there is an over redaction on a lot of things and to give you one example I put in a public records request to the state police for a case file and eventually came to me and I actually gave them the case name number everything and when I got the thing even the case number was black and I'd give it to them so it's like why are you blacking it out when I already have it and the other thing was how did I know this was actually the case I wanted but he sent me a case I don't know if it was in fact the case of the redacted so there is some over redaction that you may want to address at some point if you are going down that road so thank you thank you I do have more contact with through our committee through poor law enforcement I do have some sympathies with their system how they have to redact things because particularly the videos that seems to me just impossible to do that you can't keep proper records of those they're either there or they're not there and you're capturing people who shouldn't be captured who shouldn't be exposed when they, if somebody makes a records request anyway I do have some sympathies for the way they have to protect victims and other people who aren't connected to a case and I think and I might be wrong about that but it's I question why so much gets redacted in public event like when they have a public video I mean say somebody takes a swing at a referee in a basketball game they would redact everybody including all the players that are out on the court and it would just show the one guy taking the swing at a basketball referee when everybody, 3,000 fans are at Patrick Jim and could see it why are we taking, why are we blacking out I'm not concerned about public events but private things domestic and things when people have their body cams on and they record something and you have somebody else in the car, do they really need to be recorded that they were in the car when the car was stopped so I think it's a case by case basis it is, it is and we have to when somebody's in the privacy of their home I can understand certain things like that when it's out on a public street and it's unruly Saturday night and the cops respond to a fight in progress and then suddenly and it is a case by case but anyway so my question about this schizophrenic system that we have because I saw both of you going we do have this schizophrenic system right? I agree with Secretary St. Kondo's I don't think you ought to be charging people in business I think the way we have it now so strike the fees I'm glad with that we're happy with that but if you're going to start parceling out when you're going to charge is your fire department going to start charging when they start responding? No, no, no I'm just saying that the system that we've been operating under is interpreted in different agencies in different ways it seems to me and that we need to we need to figure out what that is and what the balance is that's all I'm saying and I'll just tell you one quick story I asked for inspection the other day on a public employee who was arrested for DWI and I want to know if they were suspended what happened to them if they were suspended put on paid leave and the town manager wouldn't tell me so I said okay I'm going to have to file a public records request for the payroll sheets, time sheets and I want to inspect that and try to figure out whether the person was ever suspended, put on leave whatever and I sent it on a Friday afternoon late and by Monday morning at 9 o'clock they had already scanned and all the time sheets and sent them to me I didn't have four copies but they took the time no charge I guess they didn't want me sitting in their office listening to things but they sent all the time sheets for the person from September to the end of the year and I do we talked earlier about having to don't come up please really needing to figure out what we're going to do by January 31st because that's the deadline for committee bills and if we're going to do anything make any changes at all whatever they might be but Senator Collamore just pointed out to me that Randy Brock's bill gave us a vehicle so that we really don't have to be done by January 31st if there are specific issues that we need to address that have may not even have anything to do with this central issue that we're talking about but other issues around public records that we have a vehicle to do that you have a number on that bill yes I do as a matter of fact because I have it right here 305 thank you good afternoon thank you so much for having me here and for the record my name is Wendy Maze and I am the executive director of the Vermont Association of Radio Castors thank you I'm here today to speak on behalf of the 8 television stations and 98 radio stations operating throughout the state of Vermont and the VAV represents over 600 Vermonters working in commercial and non-commercial radio television stations on both sides of the cameras and microphones we are the DJ's anchors, reporters meteorologists and sportscasters and we invite you into your homes your cars and your workplaces to provide you with the local weather forecasts, high school and college sports scores, music shows and most importantly real news that Vermonters trust and rely on to stay informed like elected officials radio and television stations have a duty responsibility and obligation to serve the Vermont communities we are licensed to and like you we are part of the checks and balances system that defines our country's great democracy without journalists who ask hard questions and dig deep define the truth who would hold people in positions of power accountable I'm an optimist and know that most people are inherently good but to borrow Secretary of State Conduces analogy there are some apples out there making bad decisions and taking advantage of and abusing their power to the detriment of innocent people and we all work together to get those bad apples out of our state's barrel the legislature exists to create laws police exist to enforce laws courts exist to interpret laws and the media exists to uncover and expose law breakers and since bad apples are not usually forthcoming with the truth in most cases records are the only way for us to find it that is why the Vermont Association of Broadcasters supports the Vermont Supreme Court's ruling and the position of Governor Phil Scott and Secretary of State Jim Cotnos the inspection of public records remain free and I'll even throw in there I think everything should be free to I am much like our election system which costs money to operate and costs of doing business in a democracy and just like citizens should never have to pay a poll tax to vote they should never have to pay a fee to look at records that belong to the public right now the request to inspect records seems very reactive but like Tanya Marshall testified earlier if records are managed properly from the beginning following an organized and consistent protocol like reviewing and redacting before they get filed they only have to be handled one time and then are available for anyone who wants to see them between high tech keyword searches and automatic redaction software and I looked it up there's at least six programs out there right now for redaction software including one for video there's scanners and unlimited cloud based storage there are many cost effective tools and solutions local and state agencies can use to proactively and properly prepare records for public inspection and store them online for anyone to find and look at I echo John's testimony that it's unfair to charge the public for inefficiencies and record management and it sounds to me like the Vermont Archivist is a great resource that's being underutilized right now I shall add times of I know it's possible because it is the standard that all television and radio are held to every station in the US is licensed by the Federal Communications Commission one of the FCC's rules is for stations to have a series of records available online for public inspection at any time records include a list of issues and programs that show how a station has addressed the needs and interests of its community details about all political advertisements the station has aired the station's equal employment activities, children's program reports and a whole slew of other official documents that have to be written and are updated every three months at least one person at every station is responsible as part of their job description to make sure these documents are written and uploaded by the quarterly deadline each file is date and time stamped so if a station is late or fails to upload these documents they risk tens of thousands of dollars and fines and possible non-renewal of their license this standard exists whether you have staff of four or 40 and is very time consuming broadcasters are held to a very high standard by the FCC and they are very serious repercussions if we don't comply with the system they have in place that ensures that the public has free access to our records so today I heard the Department of Public Safety Deputy Commissioner say that most of the 4,500 records requests his department received came across his desk and last week I heard the Attorney General's Chief of Staff say that she personally handled the review and redactions for the 157 public records requests that they got last year and that made me think why does the Chief of Staff and the Deputy Commissioner have to spend their time redacting documents it just seems like they have a lot more better things to do than that is there no one else that is qualified or capable of doing this and why is that is it because the 270 plus exemptions are so subjective and open to interpretation that it's impossible for anyone except a highly trained professional to work with them and if so to me anyway there lies the burden on the custodians of public records Senator Clarkson you mentioned you used the word inconsistent and that's the perfect word to describe what's happening on a real level out in the field what our journalists are reporting that they are experiencing and that is a big problem if we are all confused imagine what's happening in the small municipalities that are not even privy to things that are happening in here it means everybody's confused and even though there is a structure it seems like there's a lot of confusion with that structure and that's very apparent with the fact that I do agree with John's testimony our news departments have been quoted thousands of dollars to obtain the records that they're requesting and it's not broad it's very specific and to them those thousands of dollars is really just a brick wall for the people to say no you can't have them and we're going to do it through a financial brick wall so they tell me that fees are all over the place and it just varies depending on who you're talking to so they can't ever determine in advance how much something is going to cost and it's just when you're trying to get to the truth and that's a brick wall that just shouldn't be there so in closing Vermont Association of Broadcasters urge you to join us in supporting the Vermont Supreme Court's decision which supports freedom of information and transparent government and I really appreciate this committee giving me the opportunity to speak on behalf of Vermont's hard working broadcast journalists today my hope is that you will see Vermont Association of Broadcasters as a resource and I offer to be of service to this committee in whatever capacity you need me to be as we continue this very important conversation thank you can you give us a copy of that thank you I'd just like to say we haven't messed but your analogy of elections was very helpful actually for me it is just part of the cost of doing business and I think a lot of us have been thinking of the cost of the time of all these people getting this all together in places that aren't all perfectly set up like Tanya's operation but your that analogy was very helpful so thank you I that was good and I want to thank you for smiling at my feeble attempts at humor nobody everybody else had these stony faces you would be smile well we're all here to have fun right and just also on a personal note having served with Jim Condon for so many years together in Washington means it is sad but also lovely that you're here but heartbreaking for me we miss him every day it's very starting to thank you thank you I believe we have PJ now on the phone last one on our clean up clean up so I'm going to dial cherry everybody here you know Brian from and I'm Jeanette we've talked yeah Ray is my name you know if you want to go ahead with Jay's testimony I haven't dialed one of these before so I'm going to get some help okay we're this is a different phone that is in our committee room so it's used differently so Gail's going to go get somebody to do it so Jay do you want to do you want to come now and then we'll hear from TJ afterwards or do you want to wait I'm happy to I don't want to turn it down so it's not what we're well why don't we why don't we get Chris's vote on those two and then turn them in and then by that time we'll have TJ dialed up and and then we'll just keep going in order unless there's some reason I you're yes me yes okay great I think you knew what they were on right the act relating to pointing 10 agents and the button do you want to take them up I don't know that I have I think I think I think we need I don't think I have that here I don't have that stuff here you're doing the bond is official that's you and Anthony yes man that you're doing the town agents and here is what you need to take up I believe to go I can take them up you just need to have you sign them I'll run them up to see well this is the one on town agents so this won't help me oh dear yeah I think so he's doing bond and people and he'll take my folder just take the sheet that's why I found people built really don't want to have these are my documents right now charger that's bonded that was it sorry I didn't mean to I have bonded I've bonded here baby and that says the reporter is called yes I know but I don't have this sheet for that and I don't either is my point I don't have that's the sheet that Anthony has okay Anthony you have that and this is right here and here is 5-0-0 if you sign that for me I will take that up to see it and you're doing town agents no you're doing bonded oh shoot Allison come on I can tell you he's not being able to see us we're here Allison's he's doing bond he's doing bond he said town agents to him give it to him and this is Anthony okay oh I guess we are this is S186 oh they're both each 140 there's our town I don't have there is the answer I don't have well because there wasn't an amendment on the other one why isn't that coming on yes I think you can 99% sure that's it yeah that's exactly what I get okay do I fill over I don't know well we won't get up up today yeah we'll turn them in tomorrow plus I need Betsy's notes well you don't need her notes before you turn them in no no no these are different than all the other phones did it work no she came in so she's getting shoddy that doesn't mean she's getting shoddy sh-o-d-d-y but shoddy just hold it to the microphone yeah let's just call him on somebody's cell phone can you call him on your cell phone and just hold it up to the microphone yeah we have a temp like you all right we're going to we're going to continue here what's your recommendation on how close I should hold my phone to the microphone thank you I just thought it is, I think that's good shoddy to the rescue hi you're just in case he has a question or wants to know was it on clutch was it on clutch no it's still not working out oh shoddy's here already shoddy's here and discovered unblocked the green light's on the green light's on but hello well we need to dial yes I'm going to give it a dial to him first say that again shoddy we need to take over there we go from any of these phones in the state house you have to just yes very hello attorney donovan yes hi this is the senate government operations committee we're in room 11 and we're ready for your testimony great well good afternoon everybody thanks for having me and thanks for accommodating my schedule I had a personal appointment up in Burlington telling you from from Burlington okay thank you sitting at the witness table here in case you run into any difficulty she'll help us out hey boss I feel much better after hearing that senator white so thank you for letting me know charities and expert on this I'll be relatively brief and to the point first again let me thank the committee for taking this issue up I know people feel strongly about this issue and you know my view is that I think the law is clear and I think that the decision is clear but anytime we can have more clarity that's a good thing so thank you thank you for addressing this issue you know we get public records request from the attorney general's office I think we kind of have a unique responsibility as attorneys you know one of our first obligations our ethical obligations is attorney client privilege and so we're always looking obviously to fulfill our professional responsibility to our clients and when we're looking to respond to a public records request the legislature has said you know ballpark there's about 290 exemptions to the public records act and when you talk about well can you charge for public records I think the Doyle decision is really clear no you can't charge to inspect records I think that's clear yes you can and I think on page 4 paragraph 8 that sums it up and then I do have a disagreement with secretary condos we get into the debate about what a copy is you know the court who has the final say in our state about what the law is said that this and I quote from the decision on page 4 the legislature the legislature meant a requestor to keep and review wherever and whenever the requestor chooses a photo from a cell phone fits that definition as a copy a record that the requestor to keep and review wherever and whenever the requestor chooses that is a copy under the law in my opinion I respect that people have a different opinion than that but I think it's very clear I also disagree with secretary condos if I understood his testimony clear last week I think in the house that a copy has to be a paper record we're living in a digital world our phones are computers technology is outpacing the law the idea that we're going to define a copy as a paper record when we're operating a digital world is outdated