MONTPELIER, Vt. (AP) - More than 200 exemptions to Vermont’s public records access law have been slipped into the books with little attention over the years, but transparency advocates hope that a recently completed effort will finally shine light on the arcane process of government rulemaking.
About 45 exemptions - including personal financial and medical records that end up in government files and material related to police investigations - are baked into the Public Records Act, but a special legislative committee that was convened four years ago found that many more had been scattered throughout state statutes without getting proper scrutiny.
An exemption allows a government agency to deny access to records in its possession; it’s a get-out-of-transparency-free card.
The job of the Public Records Legislative Study Committee was to find them all and determine if they are “necessary, antiquated, or in need of revision.”
The committee was in the midst of its work in 2012 when the managing editor of the weekly Waterbury Record and Stowe Reporter newspapers set in motion a series of events that turned up a mother lode of the provisions, leading to a law to keep them in check that Gov. Peter Shumlin signed Thursday.
Tom Kearney had heard that a dispensary being set up for patients taking advantage of Vermont’s then-new medical marijuana law was to be located in Waterbury.
“I wanted to know where,” Kearney said in an interview. “No one in state government would tell me. I wanted to know why. What exemption on the list applied to this?”
It turned out there was no exemption in the Public Records Act or anywhere else in Vermont’s law books for the location of marijuana dispensaries. Instead, the Department of Public Safety cited an administrative rule it had drafted and issued. The locations remain exempt from the public records law, though they are easily found online.
Executive branch rules do get some legislative review. Under Vermont’s Administrative Procedures Act, the rules are described to another legislative panel, the Committee on Administrative Rules. That committee can’t directly vote them up or down, but if it disapproves them, they carry less weight if challenged in court.
But if the rule contains a public records exemption, that rarely is its most noticed provision, lawmakers said.
A report by issued by the Public Records committee in January said it had heard “concern that PRA (Public Records Act) exemptions adopted by administrative rule may not receive due scrutiny.”
Rep. Donna Sweaney, D-Windsor, co-chairwoman of the study committee, voiced frustration over the discovery of exemptions coming in under the administrative rules process.
“We finally think we have some control over what’s public in … the committee process, but then to find that agencies have that authority.” She added, “Well, we decided we’d better do something about that.”
Shumlin’s administration was on board with flagging exemptions when they go through the rules process, said Sarah London, the governor’s counsel. “I did testify in favor of this, and we absolutely support making the rulemaking process as transparent as possible,” she said.
Under the new law, agencies proposing new exemptions must note that fact to the Administrative Rules Committee when it files the proposal, and the committee must notify the chairs of the Government Operations committee. Sweaney holds that post in the House.
As for what’s already in the thousands of pages of administrative rules on file at the Secretary of State’s Office, the committee, which wrapped up its business at the end of 2014, lacked the time to delve into those exemptions, said another House member on the panel, Rep. Ron Hubert, R-Milton.
“We don’t know what’s there,” Hubert said. “How can we stand here and say we want an open government and we want to redo our Public Records Act, and allow agencies to make exemptions without our knowledge?”
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