 And welcome to another episode of Into the Issues. My name is Steve Pappas. I'll be your host. My guest today is Secretary of State Jim Kondos. Jim, thanks for coming. Thanks. Thanks, Steve, for inviting me. There's a handful of things that I want to talk to you about. And we're going to do it in order because I think that it will all make sense to the viewers once they hear our conversation. And none of this is going to be a surprise to you. But in recent weeks, there's been what's turned out to be a very controversial case out of the Burlington Police Department, which has now been pretty widely publicized and reviewed. And it's involved body camera footage of a police department incident. But there's more to it than that. And what's come from that has become an issue of what the public needs to know and how the public should get that information, which is of obvious interest to the media. But it's become of interest to you as well, as Secretary of State. And I'd like you to kind of explain why that is. So first, Vermont Constitution and our state statutes and the state statutes actually refer back to the Constitution. But they've enshrined the public's right to know. And that means that whether it's an open meeting or public records access, that the public has a right to have access. It's about holding government accountable. It's about knowing what your government is doing. So it's actually, I think it's pretty fundamental to transparency. And we can talk later about the transparency tour. But I think it's pretty evident that this is about having the public, and I include the media as part of the public, having that ability to hold their government accountable. Well, and part of that is because you see the media as the eyes and ears of the public. Exactly. They're the watchdog. They're the ones that have, that's their job is to look for accountability, to look to hold government accountable. But it's as kind of an arm of the public. So why is this particular case so concerning to so many people? So there are two aspects of public records that sometimes get lost if you want to call it in the shuffle. One is whether you want to just inspect those documents or do you want a copy of it? Right. So it's clear in the statutes for both sides. At least I think it's clear. And I think the courts have determined that as well. But the idea that if you go into a government agency and say, I would like a copy of those documents or a copy of that body camera film, they have to do something to prepare for that, to give you a copy. And you need to understand that there are all records that are created by government or acquired by government in the course of doing their business are considered public records. Some of those records actually have exemptions that prevent disclosure, medical information, social security numbers, things like that. There's a whole host of them, as you know. Yes. And when you're talking about preparation, you're talking about somebody actually has to review. Someone, like if someone comes in and says, I want all the emails between you and this person in government that talks about EB-5, let's say. Someone has to review each one of those emails to make sure that there's no information that should be redacted and protected from being put out. So there is a cost to that. The first 30 minutes are considered free. And then anything over that from the, as far as making a copy, as far as the labor to review and redact, those costs can all be charged off for copies. I want to keep reiterating that. If you say, I just want to inspect them. I just want to look at those. The courts have now come down and said there is no cost to that. Right. There was a case, which I'm sure you probably are familiar with, in 2011, VSEA versus the agency of natural resources in the state of Vermont. And Judge Crawford, who's now on the federal bench, Judge Crawford actually, in his decision, said that inspection is the burden of government. Government bears that burden to prepare those documents for inspection. And the argument is that, okay, if we have to go in, if Steve Papas asks for all these emails, we have to send someone in and read those emails and redact any information. Therefore, we have to make copies. That was the argument that has been made before by some government agencies. We have to make a copy of those and then redact that information out of it. Judge Crawford didn't go along with it. That court decision, it was a lower court decision. It was never appealed by the state. Come forward, fast forward to the Doyle case. Read Doyle at ASS4 to be able to view, to be able to inspect the body camera film of a incident that occurred in the city of Burlington. Right, to be clear, he asked to inspect it. He asked to inspect it. He didn't want it to watch it. He didn't ask for a copy. He just wanted to inspect it. And the city of Burlington, and I don't remember, they told him that it would cost him about several hundred dollars to get to view it. Well, that acts as a burden, that acts as an obstruction, and he wasn't about to do that. The ACLU got involved, and I think rightfully, the ACLU argued the case that they appealed it to the Supreme Court. And they went forward with that appeal. I did, my office filed an amicus brief, a friend of the court brief to support that concept, that there should be no charge. And I keep going back, Steve, to the fact that if government agencies would only manage their records better in the beginning, it would be less problematic, less of a burden to the government agency to get those documents prepared and ready to go. I think too often what happens is, the records are not managed properly. And consequently, it does become a burden. It requires many, many hours. But the courts have been clear now, and it's gone to the Supreme Court, so that is the law of the land. Inspection is free, copy is not. So what happened recently? The Attorney General's office put out a protocol that said that if you decide you wanna inspect something, and we prepare those documents, and then you take a picture of it with your phone, that they were gonna charge you for that. My argument is that that's not allowed. The inspection is still the piece. And even if there was a fee for that, the law is also clear that it has to be actual cost. So my question is, if I pull out my cell phone and take a snapshot of a computer screen, what's the cost to the state? There is no cost. Therefore, it should not be charged. And the Attorney General's office, in that protocol, basically is coming at the same, they're not disputing that the records themselves are not public. What they're disputing is how you should be able to charge to have access to those. And what's interesting about that is that you have two arms, and by the way, for all of you watching, the media came down on the same side as Secretary Kondos, the ACLU, the New England First Amendment Coalition, the Governor's office, the Attorney General at the moment is kind of out on a limb by himself on this one. And contrary to kind of all of the discussion, nobody's at loggerheads. Nobody's butting heads over this. It's just a philosophical difference in the interpretation of who should pony up the money. Because TJ's office, TJ Donovan, the Attorney General, his office is saying, as you pointed out, there's a tremendous amount of cost and effort that goes into producing this information often at the expense of his own staff, which is made up of lawyers. And they want to be compensated for that. And I get that. We all understand that. But in this case, that doesn't fly. Well, you have a Supreme Court case that basically says different. And I know he is saying that, well, yeah, but if you take a copy, that's getting a copy of that document. And I can see where he's coming from, but I don't think that the Supreme Court case actually really went in that direction. So TJ and I have talked about this and I know he's gonna go to the legislature to ask for clarification. I think the clarification should be relatively easy because the courts have ruled on it. But we'll have that discussion. We'll have that discussion. Another interesting little nuance here is that the Attorney General's office is the Council for State Agencies. Correct. Including your office. And yet you had to file an amicus brief in this case. You couldn't use the Attorney General's office. So did you have to go out and get somebody else to do that work for you? I did. I think what really happened was that the Attorney General's office wasn't sure where they were gonna come down on this case. And they were considering their own amicus, perhaps on the side of the Burlington police. In the end, they did not. But we found a lawyer, an attorney in town that would do the work for us. Obviously we helped edit, but we submitted a, what I like to call a 30,000 foot view, we didn't get into the specifics of the re-dial case. What we did was we said, look, here's what the law says. So we tried to stay at a very high level. And that's, my office generally tries to stay at a high level. We try to just go, here's what the law says, and here's what we believe that law is saying. And work from that. I'm gonna pivot a little bit. Same topic, and you mentioned earlier, there are a lot of exemptions. There's too many exemptions as far as, from my point of view, there are too many exemptions on public records. And I point a finger at Jim Douglas on a lot of that. But a lot of the governors have done the same and they've made it more difficult. But the, I think it needs to be clear that, and people who are watching this don't, not all people watching this understand that it's a public records request, which means that any person, any, anybody from the public can make these requests. And there are people who make a lot of requests. And there are a lot of people who tie up your staff, the staffs of other agencies around the state. At what point does it become where it feels frivolous and it needs to be kind of addressed? And I'm, this puts you on the spot because I'm the guy who's gonna say, there is no limit. But maybe you're the guy who says that too. I actually agree with you. I believe, in fact, I have said often to my staff that regardless of who it is, why they're asking, that's not our job to determine. Our job is to fill that request. And that's the role that we will take. In fact, there is another Burlington Supreme Court decision and I don't remember which one. I actually have it in my transparency tour paperwork. But there is another decision that says that the agency, the government, cannot ask who or why you want this information. That it's basically agnostic to it. And I agree with that. I mean, yes, we have some frequent fliers out there who will keep us very busy, keep us on our toes. But my job is to provide that information as long as it meets the law. And you're right, there are too many exemptions. I believe that. I know the legislature has worked to reduce them. But every year, additional ones get thrown in there. So right now, if you look at the statute in Title I, which is where the public records access language is, there's about 40 exemptions there. But scattered throughout the state statutes are other statements, are other exemptions that are put into a section, a specific section of the law. We estimate there's around 260. Yeah, I've heard 250. So, but there is, the good news is that there is a, the Legislative Council has a website where you can go to look at those exemptions and you can say, I want to look at animal information or animal records. And it'll pull up all the, it'll do a search and pull up those records that deal with animals or medical information and whatever. And we also have one on our website, on the state archives website, that allows the public to look at all these exemptions. It was a lot of work putting it all together. And we often will get, at the end of a session, some of our staff and some of the Ledge Council staff will actually go through the bills that have passed. Oh, here's something that acts as a exemption. Therefore, we got to highlight that. So, and that happens. But there's, a lot of it are legitimate exemptions. But I think there's also a lot of duplication and I think we could actually shorten it up a little bit. The federal government, as you probably know, it did that a few years ago. They had. The reams. Reams of exemptions and they're down to like a dozen in general. And I think that that's the approach that we need to take at some point. I know there was a committee that looked at it over a three-year period. They did reduce some of them, they combined some of them, but I think there's more that could be done. So, public records are under your purview. As Secretary of State, you have really taken this to a different level though, as far as making sure that the public understands and public officials understand not just what they need to know about records, but what they need to know about process in their towns, in accountability, responsibility, and you yourself served on South Burlington City Council for quite some time. 18 years. 18 years. And kind of saw it all there. I mean, you and I've talked in other times about kind of some of the things that you've seen. And now you are kind of the gatekeeper for a lot of towns in determining, well, can we do that? Can't we do that? And rather than doing it kind of piecemeal, which happens probably all the time, you are setting out again. This is how many? Fifth year? Well, it would be the fifth official year of the transparency tour. Yeah. You're doing what's called the transparency tour, where you actually go out to the community and you go to towns, communities, and invite other communities nearby to come in and essentially get a refresher on how to do this. It's not mandatory. You wish it were. I do. I wish it were too. But what exactly is the transparency tour? What are you aiming to do? Education. Yep. That's the big thing. It's, we've really consolidated or shortened it up into a pretty brief presentation as such. It's about, the total presentation is about an hour and a half, maybe an hour and 15 minutes, but it depends on the questions that we get. And then we get, at the end, we get a lot more questions. But we basically divided it into two sections. One is to talk about the open meeting law. The other is to talk about public records access. As you can probably imagine, a lot of our effort or a lot of our focus is on the open meeting law. That's where we seem to have the most questions. Yep. But we travel the whole state. We usually do it in the off year from the election. So the odd year, the odd numbered year, that's this year. And we're starting it, I believe, not next week, the week after. And we'll do it for about a six week period. And we have done so far in the previous years, we've visited well over 50 communities. We'll go, if a town specifically asked for us, like we had one town that had been sued by some residents. And the judge said, well, you need to have one of the conditions that he placed on them was to have that town go through two presentations on open meeting law. So we were one, VLCT did another. We worked, the original was with VLCT and Steve Jeffery, and he went with us on these things. And literally we go from Franklin County to Wyndham County, from Bennington County to Essex, Orleans counties. And I mean, we go through the whole state. And I think the most people we ever had was up in St. John'sbury a few years ago. And there was a lot going on in St. John'sbury at that time. There was, we had over 150 people show up. And we've done it for as few as three or four. So, we don't really care how many, we like to have more people. We generally will notify the town manager or town administrator, the select boards, planning commissioners, and any other, we ask the town clerks to notify their various boards like the cemetery board and whatever that we're coming to town and neighboring towns. We usually send out, obviously, we've sent it to you already, but we will follow up as each week with those towns that we're going to that following week to try to drum up as much support as we can. It's a pretty informal thing. To be honest with you, I enjoy doing it. It's really about education. It's not playing gotcha. But we'll go back to that. So everybody knows you can expect an editorial from me in the next few days because every time you do one of these, I come out saying thank you, Secretary Condos, for doing these because it only makes our job and has the eyes and ears of the public easier because everyone's sitting up a little straighter and following, going by the book, and they're doing, when they do their job as intended, it makes it easier for the public to be able to get information and understand the decisions. And it's so important. The public has a right to know and a right to participate and that's the point that we try to make this nice and simple and, again, as an educational piece. So when you say, when I ask you initially why, and you say education, what do you mean? Because when we talk about open meeting laws, I know what you're talking about, but the public may not necessarily understand why it is so important for these boards to get the primer. It's not necessarily a primer on Robert's rules and all of those pieces of it. It's important because there are certain processes that are mandated by statute that have to be done. And so what kinds of things are we talking about? So if you're gonna have your regular meeting, if you meet every, let's say, the first Monday of each month at 7 p.m. at Town Hall, that's a regular meeting. And typically you've passed a resolution at your first meeting that says, this is one we're gonna meet. Regular meetings are supposed to be warned and noticed your agenda's posted 48 hours ahead of time. So the public has a right to see what's going to be on that agenda. And what is a warning? Well, let me go back a little bit because the warning, basically, it's just announcing that the meeting is happening. And it has to be posted in a couple of places. If the town maintains a website, they have to post it on their website ahead of time. If it's a special meeting, so if any one of the factors, if it's not gonna be on the regular day or the regular hour or the regular meeting place, if any one of those three changes, it's called a special meeting and you only have to notice that 24 hours ahead of time. So it's really about, again, to get the public out to know what's going on. You know, we've also made some changes over the last eight or nine years. For instance, they're supposed to hold a, allow the public comment period. Typically it's for comments for items that are not on the agenda. One of the first things that a public body is supposed to do is ask if there's anything that on the agenda that needs to be changed. Are we deleting something or are we adding something? I always tell people when you're adding something, it should be for information purposes only. If you're gonna take an action, it should be on your next warned meeting so that the public can be notified that you're gonna take an action on something. The reason is, you could get some hanky-panky going on where a board says, this is a controversial issue. We'll just go to the meeting and see who's gonna show up and if it looks okay, we'll add it to our agenda. We don't want that to happen. The public has a right to know and the public has a right to attend and the public has a right to participate. Things like minutes. The law has been in place for over 30 years that says that the minutes are supposed to be ready for someone to look at within five days. It doesn't say final draft. It doesn't say final minutes or approved minutes. It just says minutes have to be ready. It's pretty minimal what you have to have in your minutes. It has to have, obviously, the meeting when it is, it has to say, these are the agenda items. It has to say who attended from the board at that meeting and if there were anybody there from the public. They don't have to necessarily identify everybody. I always use this as an example. When I was city council chair in South Burlington, we had a situation where we would hold a public hearing to go over our budget. Now, in South Burlington, let's just say we had a $10 million operating budget. We'd have two people show up. Right. Very little comment. The following week, we're going to discuss the leash law and our bicycle path. 150 people show up and everybody wants to say something. So that's the kind of thing that you want to, you've got to balance, but you've got to allow the public the opportunity to speak. You've got to give them a reasonable opportunity. Those minutes are now required. If you have a website, you're supposed to have those minutes posted on the website within the five days or after the five days. That raised a lot of consternation among towns because they were saying that it was problematic for them a burden to have to post those minutes. And our argument and what the legislature ultimately agreed with was that that part of the law hasn't really changed. It's just that if you have a website, it's got to be posted on the website. And in the old days, it might have been difficult to, you know, you have to let it load up. I remember with AOL, you know, it would take five minutes, 10 minutes to load something up and get it posted. Now it's just point click and it's done. So it's relatively easy. And it's just kind of basic procedures that you have to follow. Yeah, well, and we're almost out of time. It all comes down to accountability, right? It really is. And that's what you're doing is these are elected officials, they're laymen in most cases. And while they love to do it, there are rules you got to follow. That's right. The media appreciates it. I know the public appreciates it. So my guest has been Jim Kondo, Secretary of State of Vermont. Jim, thank you very much. You're welcome. We covered a lot of information in a short amount of time. We did. All right. And thank you for watching. Until next time, see you around.