A compromise was reached late Tuesday morning that avoided forming a conference committee to iron out differences on H.73, the public records bill, and ease final passage of the measure.
According to Allen Gilbert, executive director of the American Civil Liberties Union's Vermont chapter, the House agreed to concur with the version of the bill passed by the Senate Monday evening, if the Senate will agree to a set of five new amendments. Senate Government Operations Committee Chair Jeanette White, D-Windham, indicated her committee, and the full Senate, would do so.
The agreement would still have to be ratified by the full House and Senate, but that is expected to take place before the Legislature adjourns this weekend.
The five amendments would:
• Ensure specific fees in current law remain in place;
• Mandate (rather than simply allow) that the Secretary of State provide municipal public agencies, and the public, information and advice about the requirements of the public records law;
• Call for study of whether public records officers should be appointed by local government agencies. In the House's bill, the appointment was mandatory. The Senate convinced the House, though, that local government agencies don't have as neat lines of responsibility as state agencies do. State agencies will still be required to have public records officers;
• Allow for more than three meetings per year of the legislative study committee reviewing exemptions to the law and other issues;
• And eliminate a survey that the Vermont League of Cities and Towns was to have taken of public records responsibilities faced by towns.
If enacted into law, H.73 will make the most significant changes to the public records law since it was passed in 1976.
Specifically, H. 73 would creates, for the first time, an effective enforcement mechanism for making sure public agencies follow the public records law. “May” would be changed to “shall” in the award of fees and costs to plaintiffs who prevail in public records litigation.
It would also establish a “safe harbor” provision, so that public agencies sued over denial of a records request can, within 20 days of being sued, turn over the records. If they do so, awarding of fees and costs to the plaintiff is at the court's discretion rather than mandatory.
Also, the same requirements for all levels of government regarding compliance with the public records law would be maintained. “Bifurcation,” or exempting cities, towns, and school districts from the act, failed. A study would also be done of the more than 240 exemptions from disclosure for records under state law to see if any of the exemptions might be scrapped.
Free inspection of public records would be maintained, although staff time for copying can be charged after 30 minutes, which is permitted under current law.
Finally, the bill allows for “reciprocal” fee-shifting, but only according to existing Civil Procedure Rule 11 - which means that there's no new right for public agencies to recover fees and costs if the requestor of a record loses in court.