Dear Attorney General: They’re the public’s records

You’d think that the Vermont state government’s top lawyer would have respect for the law. So, it’s baffling why Attorney General TJ Donovan is fighting so hard to keep people from having convenient access to public records.

In September, the Vermont Supreme Court ruled that people have a right to look at any public record for free, based on the state Public Records Act.

The court had reinforced what had long been a belief about public records: The public can always see them for free. Public records belong to the public. If you want a public agency to make copies for you, then there’s a copying fee. For major issues, copying fees can total hundreds of dollars.

But last week, Donovan’s office banned people from photographing records they inspect, or using a scanner to get their own copy.

To avoid the state’s copying fees, reporters and members of the public routinely use cellphone photos and scanner apps for such things as court cases and minutes of meetings, so they have a clear record of what happened.

But Donovan’s office contends that, because photographing a public record produces a copy, the state can charge copying fees.

The attorney general’s policy is likely to ripple through state government, since that office provides legal advice to the entire state government. And that state government has hardly been friendly about public records requests. Last year, the Vermont Secretary of State’s Office said most agencies have a “knee-jerk reaction” to deny access to public records, so requesters must either go away or go through an appeal.

Jay Diaz of the American Civil Liberties Union of Vermont, which won the precedent-setting Supreme Court case, said Donovan’s policy is “an unnecessary and unwarranted restraint on Vermonters’ freedom that undermines faith in our government’s commitment to fundamental values of transparency and accountability.”

There’s also the Public Records Act, which says fees can be charged for using “copying equipment maintained for use by a public agency”; it makes no mention of smartphones or cameras owned by the public. The Secretary of State’s Office specifically recommends against charging a fee for when “the requester snaps a photo of a record.”

“It doesn’t cost them anything for you to bring a scanner,” said Robert Appel, a civil rights attorney based in Burlington.

Rather than comply readily with the principles behind the Supreme Court ruling, Donovan is looking for other ways to limit the public’s right to know what their government is doing.

Anyone who runs up against this policy should fight it, citing the Supreme Court decision, the Public Records Act’s reference to state copying equipment, and the advice from the secretary of state. We don’t think this policy is going to last long.

It’s widely believed Donovan wants to run for governor someday. He might want to remember that it’s the people who vote.

This editorial first appeared in the Stowe Reporter on Oct. 17.