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BILL AS INTRODUCED 2007-2008

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S.229

Introduced by   Senator White of Windham District

Referred to Committee on

Date:

Subject:  Public records; records management; access to records

Statement of purpose:  This bill proposes to amend requirements regarding access to public records.  The bill would amend the authority of an agency to charge for the cost of staff time in response to public records requests and would limit the rate charged by an agency for staff time to a maximum of $20.00 per hour.  The bill would also establish a public records advisory office within the office of the secretary of state.  The public records advisory office would provide advisory opinions to the public and public agencies regarding public records requests.  The bill would also establish a public records act review committee, which would be charged with reviewing the requirements of the public records act, reviewing the numerous exemptions to that act, and recommending changes to the public records act and its exemptions.  In addition, the bill would require all certificates of birth, marriage, civil union, divorce, death, and fetal death to be issued on unique paper with antifraud features.

AN ACT RELATING TO ACCESS TO PUBLIC RECORDS

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

§ 316.  ACCESS TO PUBLIC RECORDS AND DOCUMENTS

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(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 copying or redacting a requested 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 cost of staff time charged under this subsection shall not include the first 30 minutes of staff time associated with complying with a request to inspect or copy a public record and shall not include the costs of locating, retrieving, or refiling a requested public record.  The rate charged by an agency for staff time shall not exceed $20.00 per hour.  Prior to charging for staff time and within three days of receiving a request, the agency shall provide to the person making the public records request an estimate of the time necessary to complete the request and of the total cost.  If the record request involves an unusual circumstance that requires an extension of the time limits for response, as set forth in subdivision 381(a)(5) of this title, the requirement for an estimate shall also be extended until the agency has gathered sufficient information on which to base an estimate.  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 be charged for staff time, when such a charge is authorized under this section.  To determine “actual cost” 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.

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Sec. 2.  1 V.S.A. § 318 is amended to read:

§ 318.  PROCEDURE

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(b)  Any person making a request to any agency for records under subsection (a) of this section shall be deemed to have exhausted his the person’s administrative remedies with respect to each request if the agency fails to comply within the applicable time limit provisions of this section.  Upon any determination by an agency to comply with a request for records, the records shall be made available promptly to the person making such request.  Any notification of denial of any request for records under this section shall set forth the names and titles or positions of each person responsible for the denial of such request.

(c)  Any denial of access by the custodian of a public record may be appealed to the head of the agency.  The head of the agency shall make a written determination on an appeal within five business days after the receipt of the appeal.  A written determination shall include the asserted statutory basis for denial and a brief statement of the reasons and supporting facts for denial.  If the denial of a request for records is in whole or in part upheld, the agency shall notify the person of the right under section 318a of this title to petition the public records advisory office for an advisory opinion as to the propriety of the agency’s denial of the request.  If the head of the agency reverses the denial of a request for records, the records shall be promptly made available to the person making the request.  A failure by the agency to comply with any of the time limit provisions of this section shall be deemed a final denial of the request for records by the agency.

Sec. 3.  1 V.S.A. § 318a is added to read:

§ 318a.  PUBLIC RECORDS ADVISORY OPINION

(a)  Any person aggrieved by a denial of a request for public records under this subchapter may petition the public records advisory office within the office of the secretary of state for an advisory opinion regarding the propriety of an agency’s denial of a request.  A petition for an advisory opinion from the public records advisory office shall be in writing and shall be made within 10 business days of a final, written, adverse determination by the agency or within 10 business days of the agency’s failure to comply with applicable time limits.

(b)  The public records advisory office shall issue an advisory opinion within 15 business days of receipt of a petition under subsection (a) of this section.  When a petition for an advisory opinion poses novel or significant issues of law or policy, the office may extend the time limit for its response to 30 business days upon written notice to the person petitioning for the opinion.  The public records advisory office shall file a copy of a final advisory opinion in certified form with the secretary of state and shall transmit a copy of the opinion to the person that petitioned for the opinion and the agency that denied the public records request.

Sec. 4.  1 V.S.A. § 321 is added to read:

§ 321.  PUBLIC RECORDS ACT REVIEW COMMITTEE

(a)  There is established a committee to review the requirements of the public records act and the numerous exemptions to that act in order to assure the integrity, viability, and the ultimate purposes of the act.  The review committee shall consist of the following members:

(1)  One member of the senate appointed by the committee on committees;

(2)  One member of the house of representatives appointed by the speaker of the house;

(3)  The attorney general or his or her designee;

(4)  The secretary of administration or his or her designee;

(5)  The state archivist or his or her designee;

(6)  One representative of municipal interests, appointed by the committee on committees;

(7)  One representative of newspaper publishers broadcasters, or other press interests appointed by the speaker of the house;

(8)  One representative of school or educational interests appointed by the governor; and

(9)  One representative of a statewide coalition of advocates of freedom of access appointed by the speaker of the house. 

(b)  The review committee shall review and analyze each of the exemptions in statute to the review and disclosure of public records required by section 317 of this title.  Prior to each legislative session, the committee shall report to the house and senate committees on government operations and the house and senate committees on judiciary with recommendations concerning whether any public records act exemption should be repealed, amended, or remain unchanged.  The report of the committee may take the form of draft legislation. 

(c)  In reviewing and making recommendation regarding an existing public records act exemption under subsection (b) of this section, the committee shall review the following criteria:

(1)  Whether a record protected by an exemption is required to be collected and maintained;

(2)  The value to an agency or to the public in maintaining a record protected by the exemption;

(3)  Whether federal law requires a record to be confidential;

(4)  Whether the exception protects an individual’s privacy interest and, if so, whether that interest substantially outweighs the public interest in the disclosure of records;

(5)  Whether public disclosure puts a business at a competitive disadvantage and, if so, whether that business’s interest substantially outweighs the public interest in the disclosure of records;

(6)  Whether public disclosure compromises the position of a public agency in negotiations and, if so, whether that public agency’s interest substantially outweighs the public interest in the disclosure of records;

(7)  Whether public disclosure jeopardizes the safety of a member of the public or the public in general and, if so, whether that safety interest substantially outweighs the public interest in the disclosure of records;

(8)  Whether the exception is as narrowly tailored as possible; and

(9)  Any other criteria that assist the review committee in determining the value of the exception as compared to the public’s interest in the record protected by the exception. 

(d)  The review committee may hold public hearings and solicit the input of interested parties regarding exemptions under its review.  The agency of administration and the office of the attorney general shall provide staff services to the committee.  Members of the committee may receive a per diem and expenses pursuant to section 1010 of Title 32.

Sec. 5.  3 V.S.A. chapter 5, subchapter 4 is added to read:

Subchapter 4.  Public Records Advisory Office

§ 140.  PUBLIC RECORDS ADVISORY OFFICE

(a)  A public records advisory office is created within the office of the secretary of state.  The public records advisory office shall have a director and necessary staff.  The director of the public records advisory office shall be appointed by the secretary of state and shall be an exempt employee.

(b)  The duties of the public records advisory board shall include the following:

(1)  Issue advisory opinions under 1 V.S.A. § 318a to interpret the public records law of the state upon the request of a person.  However, the board may not issue an advisory opinion concerning a specific matter with respect to which a lawsuit has been filed under 1 V.S.A. § 319;

(2)  Provide public agencies with legal guidance and advisory opinions regarding public records requests under chapter 5 of Title 1 and disposal of public records; and

(3)  Consult with and provide legal advice to the office of the state archives, the commissioner of buildings and general services, and the department of information and innovation regarding records management requirements for public agencies.


Sec. 6.  18 V.S.A. § 5001 is amended to read:

§ 5001.  VITAL RECORDS; FORMS OF CERTIFICATES

(a)  Certificates of birth, marriage, civil union, divorce, death, and fetal death shall be in form prescribed by the commissioner of health and distributed by the health department.

(b)  Beginning January 1, 2008, all certificates of birth, marriage, civil union, divorce, death, and fetal death shall be issued on unique paper with

antifraud features approved by the commissioner of health and available from the health department.

Sec. 7.  APPROPRIATIONS

In addition to any other funds appropriated to the office of the secretary of state in fiscal year 2009, there is appropriated from the general fund to the office of the secretary of state $150,000.00 in fiscal year 2009 for the purpose of establishing the public records advisory office.

Sec. 8.  REPEAL

22 V.S.A. §§ 456 (public records advisory board) and 457 (duties of public records advisory board) are repealed.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us