City: Records should be ‘protected’
By David Taube
STAFF WRITER | March 02,2013
MONTPELIER — A lawyer for the city defended an administrative decision to withhold certain information, citing case law that he says shows information can be “protected for the public’s benefit.”
A lawsuit by firefighter union officials against the city heard testimony from both parties Friday in Washington County Superior Court. Union leaders had sought documents under the state’s open records law, and both parties agreed in court that a judge should review the materials.
Judge Robert Bent indicated he’d try to rush through a decision before a Tuesday vote about what records are public or private.
Bent suggested the major aspect of the case centered on whether city officials can discuss issues privately as part of a deliberative process exemption that protects records from disclosure.
The city initially released some records, denying most on the basis that the records were interdepartmental or intradepartmental communications preliminary to the setting of a budget policy, budget action or presentation.
The city later released several dozen additional records, but has maintained that some remaining documents are still protected. The city’s lawyer, John Klesch, said Friday that 13 records are being withheld. As part of the case, the city argued “frank, internal discussions” are protected from disclosure.
Bent suggested part of the information under debate involved records related to how city officials might advocate for a preliminary budget decision, where representatives might advocate for a policy.
“These are discussions among policy-level folks in the city government talking about how to promote their desired outcome for the budget vote,” Klesch said.
Klesch said discussions between the mayor, city manager, another city council member, and the fire chief about how to put out a public outreach on the issue dealt with records that were “legally exempt” because they are a “preliminary action.”
The statute states records may be exempt from release if they are “primarily factual materials and are preliminary to any determination of policy or action or precede the presentation of the budget at a meeting.”
After the city unveiled its budget, firefighters gathered signatures to create a ballot petition to fund a firefighter position slated to be cut, seeking to ensure $54,669 would be earmarked. At a final budget hearing Jan. 24, the city council decided to reduce the total overall budget in an amount roughly the same as identified in the firefighters’ petition, suggesting that even if the petition passes, the position will still be cut.
“It is an action of policymakers after the budget comes out at a city council meeting and there’s public hearings and so forth and then the firefighters association comes out with their petition, policymakers discussing, ‘How are we going to respond to that?’” is protected, Klesch said.
The lawyer for the firefighters, Jim Dunn, said if the documents showed that city officials were “trying to hide, if you will, from the community” and develop strategy, that should not be covered by deliberative process.
“Is it their duty to influence public opinion?” Bent asked.
“I think that is inherent in any political office,” Klesch said. “Part of what you do is communicate with the public and you consult with your internal, confidential advisers.”
He later added taht if a mayor asks a city manager whether a position should be cut, and the manager suggested the possibility was not a good idea, that information should be protected. Bent agreed that “inaction” was protected.
Also during the proceeding, Bent said the city did a poor job on explaining why records were exempt. The list of exempt documents detailed records written by the city only included a sender and receiver and a line of statute cited, Bent said.
Bent also suggested he didn’t feel the court should be the “figure-it-out” agency. The city indicated, however, that it apparently was agreeable to a speedy decision.
“The city is not interested in trying to rely on procedural blocks to get a substantive decision from the court,” Klesch said. “The city’s position is if the documents are truly not exempt, then we would ask your honor to decide that.”
As part of the case, the plaintiff raised the issue that the preliminary budget materials exemption covers “inter-departmental communications,” suggesting the mayor in this case would not be included. Bent said he planned to demonstrate the mayor is considered a department.
Bent said the ruling would not be “the decision to end all decisions on the topic.”
“There’s no law in Vermont on this deliberative process exemption. There’s likely to be tons of law on this issue federally,” Bent said, requesting both parties to submit materials based on the issue early Friday afternoon to help him decide.