Doyle v City of Burlington Pd Brief of Amicus Curiae Vt Secretary of State

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INTL SUPREME COURT OF THE STATE OF VERMONT
REKD DOYLE
Appellant

CITY OF BURLINGTON POLICE DEPARTMENL
Appellee

Supreme Court Docket No. 2018-342

Appeal
rom the

‘Vermont Superior Court, Civil Division, Washington Unit

Dockel Number $15-1-18 Wnev

BRIE OF THU AMICUS CURIAE JIM CONDOS
SECRETARY OF S7A1H OF LU STATE OF VERMONT

David Putter, Esquire
6 Towne Street

Montpelier, Vermont 05602
Tel, [phone]

Christopher D. Winters, Esquire
128 State Street

Montpelier, VT 05633-1101
Yel, [phone]
[email protected]
VIL

Certificate of Compliance.

i, TABLE OF CONTENTS

Table of Contents , .. ales 9 am, ae “ii
Table of Authorities. eae s tenes ohn
Fosue Presented... .ccecececees feed

Thicrest of the Amicus Curiae... 2.600... cee on . 1

The Standard of Review. ceeteeeeree 3
Argument... 4
A. Lach of the aforesaid principles provides an independent

justification for reversal of the trial court’s decision and a
Judgment in Appellant's favor forbidding charging to inspect... 4

1B. ‘The PRA provisions which enable state subdivisions to establish
and collect charges for publie records access do not extend to requests
to inspect. Read literally they extend only to requests for copies... 4

6

C._Detetminative Factors in the PRA’s Literal Language...

D. The Trial Court’s “Requester Pays for Inspection” Rationale. ..

Some of the General Rules Governing Stamtory Construction
that Support Appellant’s Contrary Position 8

F_ The Polity Pays by Reasonable Legislative Policy Choice. 9

Conclusion. ..... 0... ceeceeeee eee cee I,
Il. TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

3, 10,12
VRAP.29, 1
1VSA.$$415-1 VBA. 88 316 (0), ween SIR
1VSA§TS 2G 1213
1VSA.$ 516. 1245,6.712
1YSA.§ 31600 5
TSA. §316(R) 5
IVSA.§16( 6). 5,4.
IYS.A.§ 4160. L
1VS.A.§ 3186 2
3VSAB IIT L
CASE LAW

{ns Ball Mountain Dano Hyrtrocloctic Project, 154 Vt. 1NY, S76 A.2d 124 (1990). 3
Cavanaugh v, Abbott Laboratories, 145 Vi. 516, 496 A.2U 134 (1985), 8
(Clemen: v. Graham, 78 V. 290 (1906), 3
InReG, 142 Vi273, 485 4.20805 (1982) 8
In Ree Hodedon, 2011 VT 19, 189 V6. 265, 19 4.3.59, 9.
Judisicd Watch, ne, Staw, 2005 VI 108, 178 VL 214, 892 A.2a 191 9n
Town of Killington v. State, 172 Vi. 182. 776.A.24395 (2000), KY,
Nichols. Hoffman, 2010 VT 36, 188 VL J. 998.A.2¢ 1040, .
Robes v. Lown gf Hartord, 161 Vt, 187, 686 A.2d 342 (1999), 3
State v. Reynolds, WD Vs, 308.1 Ad 7301938), on
Swett v Haig, In. 164 Ve 1, 669 A.2d 930 (1995). a1
Tarrant v. Dept. of Taxes, 169 V. 189, 733 .20 733 (1999. Run.
Valeaur v, Village of Morrisville, 104 Vt, 119, 158 A. 83 (1932). 4

Vermont Suite kmplayens Aca'n v, Vormout Agere off Natural Resources, Nos. $17-7-10

Wey, 517-111 Wace, 2011 WI. 121699 (Centon J. Vi, Super Cl fa. 6, 201 1).89, Ml 1

WESCO v. Somrell. 2004 VT 102, 177 V2 287, 291, R65 A.2a.350 (2004),

3,901
It, ISSUE PRESENTED

by eonsiruing TW.

A. § 316 50 as to expand beyond its cleat, concise
and literal language, the categories of fees a custodian of public records is
empowered to charge a records requester - from payment for providing an
actual copy of he record to payment for merely éaspecting it~ the trial court
committed reversible error.

IV. INTEREST OF

E AMICUS CURIAE,

Jin Condos is Vermont's Sceretary of State. In that capacity, this
‘Court's niles permit him to file an amicus bricf without further request or
permission, V.RALP, 29,

Seerctury Condos has un interest in the outcome of this litigation that,
hhad such permission to file been necessary, would probably have induced the
eourt to grant it to him, This ease eoncemns the means ol access by whieh
‘Vermont public records are made available to the public.

As Seoruiary of Stute, Mr. Condos establishes the actual coal of
providing a public revord. 1 V.S.A. § 316(d), He also administers both the

Statewide Records and Information Management Program and the state

archives. 3 V.S.A. §117. His office iy a major, if not the most prolific

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responder to requests for public access to reconis of Vermont government.
Further, the Secretary of State’s office is statutorily charged with the
responsibility of providing municipal public agencies and members af the
Public with information and advice regarding the requirements of the Public
Revortls Act (*PRA"). See 1 S.A. § 318(8).

The

retary of State’s office begins any discussion about public
records with the promise that these revords are the comerstone of government
transparency and belong to the people of Vermont, nol to the government.
Bul in the ease at bar, the Appellee has taken the position that charging
requesters for inspecting documents reduces the umber and scope of search
requests to which it must respond, that this is 2 laudable goal and that itis
imposing charges for, inter alia, this very purpose. [ PC 43 (stating
Appellee’s view that “The ability to collect fees is necessary to limit
burdensome publi¢ records requests”).

‘Mr. Condos wants to apprise this Court that, us Secretary of State, he
adamantly challenges the validity of this goal und Appellec's pursuit of it, He
posits that the trial counts view of the municipal enaetment wsthority

conferred by 1 V.S.A. §§ 315 et saq, (tte PRA) is over expansive. Thal over-

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inclusiveness, he maintains, violates the express “free and open examination’
stalulory language and the policy enshrined in Vermont Constitution h.1,
Act 6 that undeclies it
V. THESTANDARD OF REVIEW

The subject matict of this case invokes more than the usual collection
of doctrines of statutory interpretation (some of which are discussed further
below), Italso includes the following principles:

1) “that all power being originally inberent in and consequently

derived ftom the people, therefore, all officers of government, whether

legislative ot executive, are [heir trusloes and servants, and at all times,
ina legal way, accountable to them.” Vt Const. Ch i, Art, 6

2) “ILis the poticy of this subchapter to provide for free and opien
exunination of records consistent with Chapter I, Article 6 of the
‘Vermont Constitution” [Zmphasis supplied.| 1 V.S.A. § 115.

3. Doubts in construction of access to public document claims
should be resolved in favor of disclosure because the PRA
represents a strong policy in Favoring access to public records
WESCO v. Sorrell, 2004 VT 102, 177 Vi. 287, 291, 865 A.2d 350
(2004), See also Clement v. Graham, 78 Vt, 290 (1906), especially
316-317 and 330-331,

4. Thus in construing municipal enactments, this court resolves
against the municipality any fair, reasonable, substantial doubt
concerming a municipaligy's authority to act. re Ball Mountain
Dem Hydroelectric Project, 154 V1. 189, 192, 976 A.2d 124, 126
(1990); Robes v. Town of Hartford, 161 VL 187, 190, 636 A.2d 342

age 3 of 17
(1993) and see Valeour v. Village of Morrisville, 104 Vt, 119, 129-130,
158 A.¥3 (1952),

VI. ARGUMEN

A. Principles promoting transparency, governmental
accountability and limiting munieipal government authority favor public
access to public records. Tach of the preceding four principles provides
separate and independent justification for reversal of the trial court's
decision and the grant of Judgment in Appellant’s fivor forbidding
charging requesters to inspeet,

B. The PRA provisions which enable state subdivisions to establish
and collect charges for publie revords access do not extend to inspection
requests. Read literally, they extend the power to charge fees power only

to contexls in which person requests to receive an actual copy ofa record.

S.A. §§ 316 et seq. On the issue of charging for inspections as well they

are silent.

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315.

§316.

Those subsections provide, in pertineut part, as follows:
Statemet of policy, short title

(a) Tris the policy of this subchapter to provide lar free and open

examination of records consistent wily Cagptcr T, Article 6 of the Vermont

‘Constitulion.

Access tp public records and dacurcats

(a) Any person muy inypeet oF eopy any public record of a public agency, as
Iollows,

(2) For any agency, boord, comunitice, department, insrumentali

conmmissiou, or authority ofa political subdivision of the state, a person
may inspect a public record duting custamary business hours

tb) Feopying equipment maintained for use by a public agency is used by
the agency to copy lhe public revrd or dacument requeséed, the agency may
charge and collect from the person requesting the copy the acwual cust of
providing the copy. Ihe agency may also charge aud colfout trom the person
making the request, the costs associated with mailing or uansmitting the record
bby facsimile of other elevtronie means. Nothing in this secticn shall exempt
"any pervon Irom paying fees otherwise estahlished by law for obtaining copics
of public records or dacuments, but if auch fc is established for the vapy, na
adttianal costs or fees shall be changed.

(©) Unless otherwise provided by law, in the following instancos an agency
may also charge and collect the cost of suf? time associated with complying,
swith a request for @ copy ol'4 public record: (J) the time directly invalved in
complying with the request excords 30 minutes; (2) the agency agrees 1 create
a public record; or (3) the agency agrees to provid the public record in a
nnonstandert! formal wd the time Urey involved in complying with the
request exeveds 30 minutes. The agency may require chat requests subject 10
sta time charges under this subsection be made ia veriting and that sll charges
be paid. in whole or in patt, prior to delivery of the copies. Upon request, the
agency shall provide xn cstimat of the charge.

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ative Factors Tu the PRA’s Language

The literal language of the only portions of the enabling PRA
statutory language conferring authority upon stale subdivisions to
ausscas charges for access to public documents makes no memtion of
any charging for “inspection” of public records

The literal Language of those sections of the enabling act which

describe the purpose of the enabling authority conferred is short,
concise and unambiguous. It expressly uses the word “tree” to
describe the “examination” to which the requester is to be provided
access:
“Itis the policy of this subchapter to provide for free and open
examination of records consistent with Chaptcr [, Article 6 of
the Vermont Constitution.” [Emphasi supplied] 1 V.S.A,
§ 315.
The literal language of § 316 recognizes a distinction in

authorizations between charging for “providing” “copies” of a
public record and charging to “inspcet” it, So, while the statutory

language expressly authorizes utilization of both (hese wo

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categories of disclosure, itis only for providing copies that § 316
expressly authorizes the responder to charge.

D, The Triat Court's “Requester Pays for Inspection” Rationale
Comment is warranted about the trial court's rationale for enabling

the Appellee 10 charge for public document inspection. It did recognize

that the fiteral language of the PRA crcates a dichotomy benween

charging for providing copies and charging for inspection, But the court

predicated its result on its conclusion that for purposes of assessing

charges, the differences between these two methods of disclosure are

not significant enough to justify treating them differently, given the
current state of technology. That conflation was error.

Significantly, the decision on appeal also expressly acknowledges
that the interpretation we lake here, namely that the PRA authorizes
charging for copics but nor for inspections, is a reasonable legislative
decision. [Sec the tial court’s Decision on Plaintifi’s Motion for
Judgment on the Pleadings, at pp. 4-5.][PC! al 6-7. ]

Judge Crawford agrees. See his opinion in uuolher case presenting

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