Celebrate Sunshine Week By Taking Action -- ACLU-VT 3-13-11 e-update:

ACLU-VT e-update 3-13-11

In this issue

Celebrate Sunshine Week By Taking Action

Public Records Bill Promises Better Access

Enforcement Tool Added In Open Meeting Bill

Medical Marijuana Dispensaries Bill Leaves Committee

Help Stop Religious Profiling

Celebrate Sunshine Week By Taking Action

Every year a coalition of groups -- led by the the American Society of News Editors -- sponsors Sunshine Week. It's a national effort to focus attention on the public's right to know.

Sunshine Week this year begins Monday, March 14. The timing is fortuitous, for in Vermont the legislature will be taking up two bills that aim to make our state and local governments more transparent and more accountable.

The bills are H. 73, a public records reform bill, and S. 67, an open meeting reform bill. Both bills passed out of committee this past week, on unanimous votes. They now go to the floors of their respective chambers for approval. (If approved, they'll "cross over" to their opposite chamber for further review.)

Each bill is summarized below. The changes they call for are significant, and hold out the promise that government records will be easier to get and public meetings will be more public.

You can celebrate Sunshine Week by calling or e-mailing your legislators and saying you want them to support open government.

Tell your representatives in the House that you care about improving access to public records and you want them to vote for H. 73. (The bill as passed out of the House Government Operations Committee can be found on p. 404 of Tuesday's House Calendar.)
Tell your senators you care about keeping public meetings public and you want them to vote for S. 67. (The bill as passed out of the Senate Government Operations Committee can be found on p. 116 of Friday's Senate Calendar.)

Want to do more? Write a letter to the editor of your local paper. Lots of good ideas are noted on the Sunshine Week home page. The basic message of your letter can be as simple as the basic message of Sunshine Week: Our democracy requires government transparency. Government on any level should be open and accountable.

Allen Gilbert-informal

If you have questions about legislation, contact us via e-mail. If you don't know who your legislators are, check out the legislative directory on the legislative Web page. Legislators' bios and photos are posted on the Secretary of State's Web page.

-- Allen Gilbert, ACLU-VT executive director

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Public Records Bill Promises Better Access

Rows of boxes with public records files fill the state archives facility in Middlesex. A fork lift is used to pull out individual boxes.

The House Government Operations Committee passed out H. 73, the public records bill, on a 10-0 vote Thursday evening shortly after 6 p.m. (One member was absent.) Here are the major changes:

1. For the first time in the law's 35-year history, there's an enforcement mechanism that will help citizens if they have to go to court to obtain a public record. Up to now, citizens who win court battles over public records end up -- in nearly all cases -- paying for their victory. Fees "may" be awarded by the court, but they rarely are. That changes under H. 73. Prevailing plaintiffs are entitled to fees and costs UNLESS the public agency concedes within a certain period of time that the records being sought are public.

2. Free staff retrieval time is increased from 30 minutes to two hours. (In other words, you currently can be charged the time beyond 30 minutes that it takes staff to retrieve the records you want; H. 73 changes the 30 minutes to two hours, which benefits requestors.) However, the allowable staff charges cover both records retrieved for copying as well as records retrieved just for inspection. Inspection of records has not been subject to any charges up to now.

3. Redaction of personal information is specifically noted as an alternative to nondisclosure of an entire record. When a document, or information within a document, is not disclosed, the public agency must provide "an explanation of the basis for denial."

4. The bill makes explicit that contractors who "perform a governmental function on behalf of a public agency" (such as Corrections Corporation of America) are subject to the public records law. They must produce "written or recorded information produced or acquired ... that relates to the governmental function performed.... "This applies to contractors paid $250,000 or more per year by a government agency.

5. The idea of creating a "government transparency office" with the authority to make quasi-judicial rulings on disputed public records requests was replaced by an "ombudsman-like" position within the Secretary of State's Office. The state archivist's office is given authority to provide information and advice, and give opinions (with no legal weight) when either public officials or members of the public call or write. (The state archivist has been doing this, but without explicit authority.) The archivist is also charged with establishing "a training program for the public records officers of public agencies regarding the requirements of the public records act and the procedure and process for responding to requests to inspect or copy a public record." Municipalities (including school districts) must also designate a "municipal public records officer;" they must attend annual trainings on public record law requirements

6. A legislative study committee is created under H. 73 to review the 230+ exemptions to the state's current public records law. The committee is required to consult with a broad array of agencies or groups, including "representatives of the media, and advocates for access to public records."

For the full text of H. 73 as it passed out of the House Government Operations Committee, see p. 404 of Tuesday's House Calendar.

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Enforcement Tool Added In Open Meeting Bill
Meeting agenda

The Senate Government Operations Committee passed out S. 67, the open meeting bill, Thursday on a 5-0 vote.

This bill is not as expansive as the public records bill, but it makes some significant changes:

1. For the first time since the open meeting law was created in the 1970s, a prevailing plaintiff's right to recover attorney fees and costs in open meeting litigation has been added. Reimbursement "shall" be provided unless "(1) The public body's position was objectively reasonable; and (2) The public body acted in good faith." The two conditions could lead to problems in defining what the standards mean; if they do, the committee promised to return to the issue. This is an important enforcement tool that's long been missing in the law.

2. The bill gives a public body the chance to "cure" a violation of the open meeting law after having been given notice of an alleged violation. A "cure" means the public body corrects mistakes/violations after the fact -- disclosing what was discussed in an executive session, for example. A "cure" relieves the public body of facing penalties or of having to pay attorney fees and costs if litigation is pursued.

3. The section of the law around the use of executive sessions has been rearranged to make it clearer when, before entering an executive session, a public body must first determine "that premature general public knowledge would place the public body or a person involved at a substantial disadvantage...."

4. Meeting notice requirements are clarified, and conditions around "electronic" meetings are set.

For the full text of the bill as it passed out of the Senate Government Operations Committee, see p. 116 of Friday's Senate Calendar.

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Medical Marijuana Dispensaries Bill Leaves Committee

Despite opposition from Vermont's law enforcement community, the Senate Government Operations Committee last week sent to the Senate floor S. 17 -- a bill "providing medical marijuana for symptom relief to registered patients who have a debilitating medical condition."

The marijuana will be provided to registered patients through two dispensaries licensed and regulated by the Department of Public Safety -- the same department that oversees the Vermont State Police. This means the dispensaries will be more tightly controlled than the state's pharmacies, which dispense much more powerful drugs to vastly more people.

Changes were made to the original bill language, but the basic concept survived. Key to passage was testimony from registered patients who described how difficult it is for them to procure marijuana that provides the relief from pain that they need. If they aren't able to grow the plants in their own homes, they -- or caregivers -- must resort to street buys. That means they're never sure of the type of marijuana they are getting, and how effective it may be for them, since different strains of marijuana have different effects. And of course the sale of marijuana is illegal.

A previous marijuana dispensary bill died on the floor of the Senate last year. This year's bill -- sponsored by two committee chairs, Sen. Jeanette White (Senate Government Operations) and Sen. Dick Sears (Senate Judiciary) -- is tighter and cleaner. Chances of passage are higher, and the threat of a gubernatorial veto greatly reduced.

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Help Stop Religious Profiling

Marking German-Americans as "Huns," rounding up Japanese-Americans, targeting intellectuals and Hollywood actors as "Reds" -- the U.S. prides itself on tolerance, but we've made some serious missteps over the years by profiling groups of people and blaming our troubles on them.

Another sad, embarrassing chapter in senseless and counter-productive profiling took place last week in Congress. Congressman Peter King of New York called a high-profile hearing on the "radicalization" of Muslim-Americans.

Despite pleas from civil rights groups and law enforcement officials that he stop such hearings, Rep. King is determined to hold more.

The result? America won't be any safer, just more divided.

Congress has no business singling out the religious beliefs of one group of Americans. King is using his position as chair of the House Homeland Security Committee to subject the entire American Muslim community to public scrutiny through discriminatory hearings based on prejudicial ideas that wrongly equate belief in Islam with terrorism. No good can come from needlessly targeting an entire religious community.

Voice your opposition to these senseless and divisive hearings by signing the ACLU's "Stop Targeting Religious Minorities" pledge.

No one has the right to engage in criminal activity. But everyone has the right to religious freedom. The rights of each of us are secure only if those of the weakest, the marginalized, or the unpopular are assured.

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Contact Information

e-mail: info@acluvt.org
phone: 802-223-6304
postal: 137 Elm St.
Montpelier, VT 05602