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Article published Jan 23, 2006 House argues public access
By Louis Porter Vermont Press Bureau
MONTPELIER — With the Statehouse in the doldrums of January, bills are being written in committee rooms, but few are moving to the floor of the House or Senate yet.
Among the discussions about the sentencing of sex offenders and the looming potential fight over the budget, the issue of access to government records is starting to stir talk in Montpelier.
The House Government Operations Committee began taking testimony last week on the legitimacy of the "deliberative process privilege," an exemption to public records disclosure law.
Deliberative process privilege would allow some records within state agencies to be withheld from the public. A bill being considered by the House Government Operations Committee would specify that the exemption to public records law does not exist.
That privilege does exist and it is important to allow a "free and open exchange" of ideas among state employees, Deputy Secretary of Administration Steven Gold said.
If lawmakers want to rule out such a privilege, they need to do so across all branches and levels of government, including municipal governments and in the Legislature itself, Gold said.
Executive privilege already keeps some communication between the governor and other state employees private, and attorney-client privilege keeps legal papers between state workers and lawyers under wraps.
But in a handful of cases within the last year, officials have invoked the broader deliberative process privilege to withhold documents not covered by those other exemptions. Such an exception to open records law has been established through court rulings, rather than through statute, said Gold, most explicitly in a Washington Superior Court decision last summer.
Representatives Janet Ancel, D-Calais, and Tony Klein, D-East Montpelier, who have sponsored the bill dealing with deliberative process, said, in fact, the exemption to public records law does not exist in Vermont, and it has never been approved explicitly by the Vermont Supreme Court or by the Legislature.
"What bothers me about this is that executive privilege is being delegated out to agency secretaries and commissioners," Klein said.
A lawyer for the Legislative Council, which gives lawmakers advice on bills and other issues, told the committee such an exemption to public records law has not been approved by the high court.
If the Legislature wants to rule out deliberative process privilege for the executive branch, it needs to be eliminated for municipal governments and in the bill-drafting process for the Legislature as well, Gold said. Those exemptions to open records laws are spelled out in statute.
"It should be a level playing field," he said.
Some lawmakers bristled at that suggestion, saying that since committee rooms are open to the public the creation of laws is already much more open than the executive branch as it is. And executive privilege already makes the playing field uneven, they said.
A lawyer for the Vermont State Employees' Association, whose members would be affected by the ruling out of deliberative process privilege, said the organization supports the bill as an important way "to preserve and protect our tradition of open government."
"Our members span the political spectrum," he said. But "I have never seen our membership more unified" than over the question of whether their work should be open to public inspection, David Stewart said.
"Sometimes that is uncomfortable and unpleasant, but it is part of what our members sign on for," Stewart said.
The House Government Operations Committee is likely to have more hearings on the matter this week, and a public hearing on the issue as well, said Chairwoman Donna Sweaney, D-Windsor.
Gregory Sanford, the state archivist, said there are several questions which need to answered when considering a deliberative process privilege.
"What specific type of information or record are we trying to protect through deliberative process that doesn't already have a protection?" he said. And "how do you prevent the deliberative process privilege from swallowing the entire public records law?"In other legislative business:
The Senate Economic Development, Housing and General Affairs Committee will look at how to fund and encourage development of broadband internet service in the state this week.
The potential regulation of those who breed and sell pets will be considered by the House Agriculture Committee.
Committees in both the House and Senate, including the appropriations and institutions committees, will begin working on the upcoming year's operating and capital budgets for the state.
The Senate Finance Committee will consider a bill allowing municipalities to enroll watershed land located in another municipality in the state's current use program.