Lines drawn over open records
By LOUIS PORTER Vermont Press Bureau | February 08,2006
MONTPELIER — A stream of state employees, lawyers and citizen advocates hammered away during a public hearing Tuesday evening, trying to tear down an exemption to the open records law that has been invoked by the administration of Gov. James Douglas.
That exemption, called the deliberative process privilege, is needed to protect the deliberations of state workers, members of the administration have said.
If the lawmakers who hosted the Statehouse meeting wish to do away with it they must also curtail exemptions to public records law in the Legislature and in municipal governments, officials have said.
But former state Attorney General Kimberly Cheney, who testified at the hearing before the House Government Operations Committee, called that "leveling the playing field" argument "totally irrelevant."
"I wrote this law," he said of the state's open records rules, adding later that deliberative process exemption "doesn't belong in the law … it's a mistake."
The deliberative process privilege, recognized by federal law, allows documents such as correspondence to be withheld from public scrutiny in some cases. Although executive privilege and attorney client privilege protect other documents from public view in some cases, the deliberative process exemption is not a part of the state's statutes.
The exemption was, however, recognized by a Washington County Superior Court judge last year, although the Vermont Supreme Court has not weighed in on the question of deliberative process yet.
Legislators are now considering a bill specifically blocking the use of that exemption to public documents access.
Current state employees and their union leaders also testified that they do not need the protection of the deliberative process privilege.
John Brabant, an environmental analyst with the Agency of Natural Resources, said the exemption to public records would only allow politics to interfere with science if it is allowed to stand.
"When there is a political reason, the staff can be overridden," he said. "The deliberative process exemption will ensure that politics will continue to rule the day."
Several former state employees also testified that the deliberative exemption was not used in the past.
Among them was Ginny McGrath, an attorney for the Agency of Natural Resources for a decade who, as a private attorney, has recently fought with the state over public records access.
"At no time did I ever assert on behalf of my client, the state of Vermont, something which has emerged in recent years called the deliberative process privilege," she said.
Contact Louis Porter at email@example.com.