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NO. 159. AN ACT RELATING TO ACCESS TO PUBLIC RECORDS.

(H.780)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 1 V.S.A. 316 is amended to read:

316. ACCESS TO PUBLIC RECORDS AND DOCUMENTS

(a) Any person may inspect or copy any public record or document of a public agency, on any day other than a Saturday, Sunday, or a legal holiday, between the hours of nine o'clock and twelve o'clock in the forenoon and between one o'clock and four o'clock in the afternoon; provided, however, if the public agency is not regularly open to the public during those hours, inspection or copying may be made during customary office hours.

(b) If *[a photocopying machine or other mechanical device]* copying equipment maintained for use by a public agency is used by the agency to copy the public record or document requested, the agency may charge and collect from the person requesting the copy *[may be charged]* the actual cost of providing the copy *[which cost may be collected by the public agency]*. The agency may also charge and collect from the person making the request, the costs associated with mailing or transmitting the record by facsimile or other electronic means. Nothing in this section shall exempt any person from paying fees otherwise established by law for obtaining copies of public records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged.

(c) In the following instances an agency may also charge and collect the cost of staff time associated with complying with a request for a copy of a public record: (1) the time directly involved in complying with the request exceeds 30 minutes; (2) the agency agrees to create a public record; or (3) the agency agrees to provide the public record in a nonstandard format and the time directly involved in complying with the request exceeds 30 minutes. The agency may require that requests subject to staff time charges under this subsection be made in writing and that all charges be paid, in whole or in part, prior to delivery of the copies. Upon request, the agency shall provide an estimate of the charge.

(d) The secretary of state, after consultation with the secretary of administration, shall establish the actual cost of providing a copy of a public record that may be charged by state agencies. The secretary shall also establish the amount that may becharged for staff time, when such a charge is authorized under this section. To determine Aactual cost@ the secretary shall consider the following only: the cost of the paper or the electronic media onto which a public record is copied, a prorated amount for maintenance and replacement of the machine or equipment used to copy the record and any utility charges directly associated with copying a record. The secretary of state shall adopt, by rule, a uniform schedule of public record charges for state agencies.

(e) After public hearing, the legislative body of a political subdivision shall establish actual cost charges for copies of public records. The legislative body shall also establish the amount that may be charged for staff time, when such a charge is authorized under this section. To determine actual cost charges, the legislative body shall use the same factors used by the secretary of state. If a legislative body fails to establish a uniform schedule of charges, the charges for that political subdivision shall be the uniform schedule of charges established by the secretary of state until the local legislative body establishes such a schedule. A schedule of public records charges shall be posted in prominent locations in the town offices.

(f) State agencies shall provide receipts for all moneys received under this section. Notwithstanding any provision of law to the contrary, a state agency may retain moneys collected under this section to the extent such charges represent the actual cost incurred to provide copies under this subchapter. Amounts collected by a state agency under this section for the cost of staff time associated with providing copies shall be deposited in the general fund, unless another disposition or use of revenues received by that agency is specifically authorized by law. Charges collected under this section shall be deposited in the agency’s operating account or the general fund, as appropriate, on a monthly basis or whenever the amount totals $100.00, whichever occurs first.

*[(c)]* (g) A public agency having *[photocopying or other mechanical copying facilities]* the equipment necessary to copy its public records shall utilize *[those facilities]* its equipment to produce copies. If the public agency does not have such *[facilities]* equipment, nothing in this section shall be construed to require the public agency to provide or arrange for *[photocopying]* copying service, to use or permit the use of copying *[facilities]* equipment other than its own, to permit operation of its copying *[facilities]*equipment by other than its own personnel, to permit removal of the public record by the requesting person for purposes of copying, or to make its own personnel available for making handwritten or typed copies of the public record or document requested.

(h) Standard formats for copies of public records shall be as follows: for copies in paper form, a photocopy of a paper public record or a hard copy print-out of a public record maintained in electronic form; for copies in electronic form, the format in which the record is maintained. Any format other than the formats described in this subsection is a nonstandard format.

(i) If an agency maintains public records in an electronic format, nonexempt public records shall be available for copying in either the standard electronic format or the standard paper format, as designated by the party requesting the records. An agency may, but is not required to, provide copies of public records in a nonstandard format, to create a public record or to convert paper public records to electronic format.

*[(d)]* (j) A public agency may make reasonable rules to prevent disruption of operations, to preserve the security of public records or documents, and to protect them from damage.

*[(e)]* (k) Information concerning facilities and sites for the treatment, storage, and disposal of hazardous waste shall be made available to the public under this subchapter in substantially the same manner and to the same degree as such information is made available under the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. chapter 82, subchapter 3, and the Federal Freedom of Information Act, 5 U.S.C. section 552 et seq. In the event of a conflict between the provisions of this subchapter and the cited federal laws, federal law shall govern.

Sec. 2. 1 V.S.A. 317 is amended to read:

317. DEFINITIONS; PUBLIC AGENCY; PUBLIC RECORDS AND

DOCUMENTS

(a) As used in this subchapter, "public agency" or "agency" means any agency, board, department, commission, committee, branch, instrumentality or authority of the state or any agency, board, committee, department, branch, instrumentality, commission or authority of any political subdivision of the state.

(b) As used in this subchapter, "public record" or "public document" means all papers,*[staff reports, individual salaries, salary schedules]* documents, machine readable materials or any other written or recorded matters, regardless of their physical form or characteristics, that are produced or acquired in the course of agency business *[except:]*. Individual salaries and benefits of and salary schedules relating to elected or appointed officials and employees of public agencies shall not be exempt from public inspection and copying.

(c) The following public records are exempt from public inspection and copying:

* * *

(23) any data, records or information developed, discovered, collected or received by or on behalf of faculty, staff, employees or students of the University of Vermont or the Vermont state colleges in the conduct of study, research or creative efforts on medical, scientific, technical, scholarly or artistic matters, whether such activities are sponsored alone by the institution or in conjunction with a governmental body or private entity, until such data, records or information are published, disclosed in an issued patent or publicly released by the institution or its authorized agents. This subdivision applies to, but is not limited to, research notes and laboratory notebooks, lecture notes, manuscripts, creative works, correspondence, research proposals and agreements, methodologies, protocols, and the identities of or any personally identifiable information about participants in research.

(24) records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.

(25) passwords, access codes, user identifications, security procedures and similar information the disclosure of which would threaten the safety of persons or the security of public property.

Sec. 3. 10 V.S.A. 5410 is added to read:

5410. LOCATION CONFIDENTIAL

All information regarding the location of endangered species sites shall be kept confidential in perpetuity except that the secretary shall disclose this information to the owner of land upon which the species has been located, or to a potential buyer who has a bona fide contract to buy the land and applies to the secretary for disclosure ofendangered species information, and to qualified individuals or organizations, public agencies and nonprofit organizations for scientific research or for preservation and planning purposes when the secretary determines that the preservation of the species is not further endangered by the disclosure.

Sec. 4. 32 V.S.A. 1671(a)(7) is amended to read:

(7) For uncertified copies of records and documents on file, or recorded, a fee of $1.00 per page shall be charged, with a minimum fee of $2.00; however, copies of minutes of municipal meetings or meetings of local boards and commissions, copies of grand lists and checklists and copies of any public records that any agency of that political subdivision has deposited with the clerk shall be available to the public at actual cost;

Sec. 5. REPORT

One year after the effective date of this act, the secretary of state shall survey state and local public agencies covered by this act. The secretary shall identify any issues relating to access, charges and administration that have arisen as a result of the provisions of this act. The secretary shall compile a list of actual cost charges and staff-time charges that have been established by local legislative bodies and determine whether charges differ significantly among municipalities. The secretary shall also compare municipal charges to the charges established for state agencies. The secretary shall file his or her findings, together with any recommended amendments to the access to public records law, with the general assembly on or before January 15, 1998.

Approved: May 8, 1996