Yet another case has come down from the Vermont Supreme Court analyzing Vermont's Public Records Act. The most recent case demonstrates one thing well. It demonstrates that Vermont's Public Records Act is incredibly complicated.
Complication is sometimes unavoidable. Given the volume of public records, a simple statute cannot address each and every type of document specifically.
I am concerned, however, at the latest change to the Public Records Act that was passed by the legislature. A person seeking public records could be awarded attorney's fees if it the judge found it just to do so. The new law mandates attorney's fees even if the public agency acted in good faith. Public agencies simply do not know for sure what the extent of the Public Records Act is. That's why we are getting so many court decisions lately. If the public agency does not have a clear mandate as to what should be released, it seems unfair that they should be on the hook for another party's attorney's fees if the agency acted in good faith.
I am, however, sympathetic to the potential burden on the public. I propose that the legislature create some sort of independent review that may be obtained by an agency. If the independent review determines that the public is entitled to withhold the records, the agency would not be liable for attorney's fees if the matter is litigated. If, on the other hand, the independent review advises disclosure of the documents, and the agency disregards this opinion, the agency would be liable for attorney's fees if they do not prevail in litigation.
This seems to strike a balance between the public's right to access records and the lack of clarity afforded to government in the statute.