News Articles

Published: September 17, 2008
By DAVE GRAM
Associated Press Writer

MONTPELIER — Curt Hier has been trying to find out if a teachers’ union influenced lawmakers’ votes on a school funding bill, but says his requests for public records from the Vermont Legislature have produced nothing but frustration.

Hier, a Fair Haven teacher who chairs school reform group First Class Education-Vermont, said he has been trying to investigate the Vermont National Education Association’s failed efforts to get lawmakers to repeal a 2007 law designed to put the brakes on rising school costs.

“I’ve gotten a whole lot of different stories,” Hier said. “All the roadblocks I see lead me to believe there might very well be some embarrassing e-mails to be had.”

Hier said he was inspired to launch his quest after the Vermont State Employees’ Association used the public records law to gain access to e-mails among Douglas administration officials, which showed them trying to manage the public appearance of a round of state job cuts.

Hier sent inquiries to House Speaker Gaye Symington — the Democratic candidate for governor— as well as Majority Leader Carolyn Partridge, Rep. Janet Ancel, D-Calais, and others.

Among other things, his letter to Symington asked for “all communications between you and individuals affiliated with the Vermont-NEA, Vermont Superintendents’ Association, and the Vermont School Boards’ Association” related to Act 82, the law that calls on local school districts to vote twice if they want to increase their budges beyond a certain threshold.

Lawmakers have replied by saying that it’s legislative policy to delete e-mails from the Statehouse computer after 90 days, and that they didn’t have anything to give Hier.

Ancel, who chairs the House Education Committee, said he shouldn’t seek the information from individual lawmakers, but from the Legislature as an agency.

Emily Bergquist, chief of the Legislative Council, which researches and drafts bills for lawmakers, said the Legislature set the delete-after-90-days policy for e-mails after a flood of e-mails during the civil unions debate in 2000 crashed its computer system.

She also said her predecessor in the job determined that Vermont’s public records law, which requires public agencies to turn over most records on request, doesn’t apply to documents sent by constituents to individual lawmakers.

Legislative budget documents, travel records and other papers detailing lawmakers’ public business are open, but individual communications aren’t, Bergquist said.

She said that’s because exposing them to public scrutiny could put a chilling effect on two other rights outlined in the Vermont Constitution — the “speech and debate clause” and the right of constituents to petition their government.

“If they’re petitioning their representatives, the question is ‘Are we going to be chilling, infringing on that right if we say your communications are all going to be public?’” Bergquist said.

Hier says that sets up a double standard in which executive-branch agencies have duties under the public records law that the legislative branch doesn’t.

Ancel countered that the governor is able to take advantage of the doctrine of “executive privilege” to avoid release of communications to and from him. She argued that lawmakers are elected officials like the governor and should enjoy a similar privilege.

Bergquist noted, though, that the basic legislative process of public deliberation in committee rooms, followed by debate in the House and Senate, is more open than are conversations about policy in executive-branch agencies.

“Different rationales apply to the different branches, and so sometimes you end up with a different analysis,” Bergquist said.

That doesn’t satisfy Hier, or another advocate for public access, Stowe Reporter managing editor Tom Kearney, who questions whether there is any basis in law for the policy of eliminating e-mails after 90 days.

“It’s really disappointing that the Legislature would so cavalierly eliminate records of their business with constituents,” said Kearney, a past president of the New England Society of Newspaper Editors.

Partridge said lawmakers are likely to revisit the Legislature’s relationship with the public records law when they return in January.

“We need to take a look at this in January and clarify what we need to disclose and what we don’t,” said Partridge, D-Windham.