Judge puts public records case on fast track for court trial (copy)

The plaintiff, the Connecticut Attorneys Title Insurance Co. in South Burlington, maintains that various lawyers need full access to the public records to complete research for real estate deals in communities throughout Vermont. The lack of access can block buyers and sellers and those trying to refinance.

Burlington lawyer Robert Fletcher, on behalf of the towns, told the court he wants time first to file a motion to dismiss. Judge Samuel Hoar gave him until early January and told Burlington attorney Chris Roy, on behalf of the plaintiff, that he would have one week to respond.

Roy said Friday he was ready immediately for trial. Fletcher said he needed until early January to check with each of the nine towns because each is handling the pandemic in different ways.

Roy has maintained some clerks have imposed very strict limitations on access to records — far beyond the limits imposed by Gov. Phil Scott in his executive order this summer. Scott, who is known for his interest in government transparency, has ordered municipal services, including access to records, be available to all Vermonters.

Roy maintains that the Vermont Public Records Law mandates that documents “shall” be available. It is not discretionary, he said.

Hoar said he will plan the trial during the week of Jan. 25 at the superior courthouse on Main Street, but most likely it will be a virtual hearing. While a half-day trial was suggested, Hoar said the court might set aside a full day, likely Thursday of that week.

Hoar said he would issue a ruling as soon as possible after the trial. He noted the First Amendment implications of the case.

The lawsuit has major statewide implications because Hoar’s findings could affect how taxpayers during the pandemic can gain proper access to all kinds of public records stored in more than 240 town halls across Vermont.

Attorney Andy Mikell, who oversees CATIC’s office in Vermont, has said the eight towns and one city named in the lawsuit are considered representative of the statewide problem. While other communities and their clerks could have been named in the lawsuit, CATIC just wanted to provide the court an idea of the whole problem throughout the state.

Fletcher noted that the 240 clerks across Vermont pretty much set their work hours. He said the clerks have to consider the size of their offices and if they or others are vulnerable to COVID.

Fletcher said clerks have been emailing reports or indexes to lawyers upon request.

The hearing on Friday was initially to seek an emergency order to require the town clerks to make records more available. Fletcher asked to slow the process because the last defendant in the case was not served until Dec. 7 and he needed time to consult each clerk to learn what rules they had put in place.

The communities named in the lawsuit are: Bolton, Georgia, Lincoln, Milton, Northfield, Plainfield, Shrewsbury, South Burlington and Whiting.

The lawsuit notes the defendants have taken one or more of the following restrictive practices since COVID:

— Reduced hours of operation.

— Reduced hours to conduct record searches.

— Reduced access to physical portions of the clerk’s office, including the vault where records are stored.

— Reduced access to indexing systems.

— Reduced access to physical touching of the recorded public documents.