Speedy decisions urged in public-record cases

State judges would be required to issue speedy decisions for lawsuits seeking release of Vermont public records under a bill being introduced by a southern Vermont legislator.

Rep. Cynthia Browning, D-Arlington, said the proposed law would mandate judges to make their court decisions in public records cases within 45 calendar days after the final legal brief is filed.

The five-term legislator told the Burlington Free Press the bill also would require the Judicial Retention Committee to look at how well a judge performs in meeting statutory mandates for handling cases.

Browning raised eyebrows in May 2014 when she sued a fellow Democrat, Gov. Peter Shumlin, for trying to conceal studies related to the tax financing plans for his ill-fated single payer public health insurance plan.

Michael Costa, deputy director of Healthcare Reform, and later Administration Secretary Jeb Spaulding, both citing the Governor’s Executive Privilege rejected the request for the records first filed by Browning in March 2014.

Shumlin later also cited executive privilege in denying Browning’s request to see the long overdue reports. She responded with her civil lawsuit.

Browning said there were unreasonable delays in the handling of her public records case in Vermont Superior Court in Montpelier.

Shumlin’s press secretary Scott Coriell did not respond to a request for comment about the legislation.

For several decades Vermont law has mandated that lawsuits about seeking public records “take precedence on the docket over all cases and shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way” unless a court can document some other case needs attention ahead of it.

In Browning’s case the last legal brief was filed Sept. 4, 2014, but Judge Mary Miles Teachout never ruled for 14 weeks.

Judge Teachout agreed on Dec. 10, 2014, to uphold Shumlin’s executive privilege claim. In her seven-page ruling Teachout said she did not believe she needed to look at the records in private before making her ruling.

Browning, who represents Arlington, Manchester, Sandgate and Sunderland, said 14 weeks did not meet “a common sense definition of expeditious.”

There also was a delay in scheduling the initial court session. Browning’s lawsuit was filed May 1, 2014, but the first hearing was never conducted for seven weeks: on June 17.

“I want to raise this issue because I don’t want any future governors to do what this governor did,” Browning said.

“This will help everybody. This applies to any public records case, not just ones with the governor,” she said.

“My understanding is that executive privilege is intended to serve the public by ensuring that government officials can have thorough and confidential discussions of policy alternatives. It is not intended to protect those officials from inconvenience or embarrassment,” she said in a written statement.

“If a person claims to believe in the principles of transparency and accountability they must uphold them when it is hard as well as when it is easy,” Browning said.

Shumlin, who is starting his third term, has been a strong advocate for public records even before he was governor. He did sign a new law June 1, 2011, that he helped push through that allows for mandatory legal fees for people who successfully sue to recover public records.

“I think that in this case Executive Privilege was used to conceal the politically difficult facts related to how much the single payer plan might cost and how much taxes might have to increase to finance it. Ironically, this concealment did not serve the Governor well politically with either supporters or skeptics of the plan,” Browning said.

Browning acknowledged that even if Judge Teachout had ruled earlier there would have been no additional information for voters to review before going to the polls on Nov. 4.

Browning said her bill has several public accountability provisions:

• If reports or documents have been shared by executive branch staff with people who are not part of that branch or working for it outside of the presence of the governor, executive privilege is waived.

She said Shumlin’s staff had shared documents and reports with some legislators when the Governor was not there and still claimed executive privilege. She said executive privilege should not extend across various branches of government.

• If officials or a public agency are required by law to produce a report on a date certain, and they do not miss the deadline, and the law is not amended to extend the date, all records related to that report cannot be covered by executive privilege.

That requirements is needed, Browning said, because the Shumlin administration was mandated to produce a tax financing plan for single payer by January 2013 and it failed. The legislative majority did not enforce the deadline, Browning said. The Shumlin administration withheld the material related to that report by claiming executive privilege in response to Browning’s public records request in March 2014, the legislator said. The statutory deadline was not finally extended to January 2015 until May 2015.

“It should be possible for any Vermonter to obtain such material when a report is overdue, even when the legislative majority is neither enforcing the law they passed nor going through the process of discussing why the deadline was missed and why,” she wrote.

Contact Mike Donoghue at 660-1845 or mdonoghue@freepressmedia.com. Follow Mike on Twitter at www.twitter.com/FreepsMikeD.