News Articles

Published: September 17, 2008
By Shay Totten

The recent kerfuffle over the Douglas administration’s effort to hide aspects of its plan to cut state jobs is keeping tensions high between union members, key lawmakers and the governor.

State employees made public hundreds of emails, in some of which key aides to Gov. Jim Douglas called lawmakers “whiners.” Other emails showed Douglas aides looking for ways to hide the true titles of the jobs they were cutting. You know, change a job title to “clerk” when it’s really “social worker.”

Lawmakers were outraged. That demeaning, deceitful, doo-doo head Douglas! Passing notes in class like that!

So, legislators must keep a meticulous record of all the emails they swap with each other, state officials and the public. Right?

Wrong.

Turns out that emails on the legislative server are automatically deleted after 90 days. That means unless an individual lawmaker decided to archive his or her messages, emails from this past session are - poof! - gone forever.

We have Curtis Hier, a social studies teacher in Fair Haven and founder of First Class Education of Vermont, to thank for bringing this double standard to light.

Hier asked several key lawmakers to provide emails related to education finance. In particular, he was looking for their correspondence with the Vermont-National Education Association, the Vermont Superintendents Association and the Vermont School Boards Association.

Among the recipients of his request were House Speaker Gaye Symington, Majority Leader Carolyn Partridge, Assistant Majority Leader Floyd Nease and Rep. Janet Ancel, chairwoman of the House Education Committee.

According to Hier, Nease failed to reply, while Ancel said the request should be redirected to the custodian of the emails.

Symington replied — twice — and claimed no such emails existed. Her first response informed Hier that the only back-and-forth discussion about education funding was between herself and constituents, all done by letter. The second told him that, by the way, her archived emails only go back 90 days.

Hier is not satisfied with the response. “They’ve basically shredded public documents, the way I look at it,” Hier told “Fair Game.”

As if that wasn’t bad enough, the Legislature’s top attorney says lawmakers’ emails shouldn’t be subject to the open records law at all.

Emily Berquist, chief counsel at Legislative Council, said allowing legislative emails to become public record would stifle internal legislative debate and citizens’ right to petition their representative, both of which are protected by the state constitution.

As a past member of the executive committee of the Vermont Press Association, I have to say that’s a new one on me. There are 35 exemptions in the key statute governing access to such records. About 200 more are scattered throughout various Vermont laws.

A couple of First Amendment attorneys I spoke with (and some media colleagues) were also puzzled by Berquist’s assertion that legislative emails are not public records. They don’t think that argument will hold up should it be challenged in court.

Hier plans to talk over his next step with his attorney, Paul Gillies, a former deputy secretary of state under Douglas and a strong believer in the public’s access to government.

The 90-day rule took effect in 2001, when the GOP ruled the House and was led by Speaker Walt Freed, a Republican from Manchester.

Then, as now, the reasoning behind the purge is technological not ideological, said Duncan Goss, the Legislature’s IT chief. But the Legislature is working to address the issue and hopes to move away from the 90-day purge cycle within three to five years.

“We’ve known this is unsatisfactory and it was forced on us by the technology at the time,” said Goss. “Now we’re working through the process to get a more appropriate policy in place that is based on the content of the record.”

The question remains: Who will decide what qualifies as content — 180 individual lawmakers or an outside arbiter?