Friday, October 25, 2013

FOIA to City of Burlington 10-25-13

Subject: Freedom of Information Request - Response #4

Proudly Serving Vermont Since 1875
16 Millstone Blvd, Barre, VT 05641
To:       Robert Rusten, Chief Administrator, City of Burlington
            Miro Weinberger, Mayor, City of Burlington
            All Personnel in City Attorney's Office, City of Burlington
            All City Council Members, City of Burlington
            City Management Personnel, City of Burlington
            William Ellis Esq., McNeil, Leddy & Sheahan
Date:   October 25, 2013
RE:       Freedom of Information Request
Dear Mr. Rusten:
Please treat this as the Vermont Federation of Sportsmen's Club's (VFSC) initial response to your letter dated October 22 and to communications made in person to the undersigned on October 22 by Assistant City Attorney Eugene Bergman and Assistant Chief Administrative Officer Scott Schrader during VFSC's initial trip to examine records that the City has begun to make available in response to VFSC's requests.
In making the points made in this correspondence, VFSC does not waive other issues that it may wish to raise in response to your October 22 letter or the verbal communications that day from Messrs. Bergman and Schrader.
As preliminary matters, VFSC wishes to direct the City's attention to its obligation to redact documents to remove only specifically exempt portions and to provide the remainder of documents, per explicit statutory requirement at Title 1, Section 318(e).  VFSC also notes the explicit provision by the Legislature in Section 315 that "It is the policy of this subchapter to provide for free and open examination of records consistent with Chapter I, Article 6 of the Vermont Constitution. Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment." VFSC also notes that while, under Section 316(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," the term "rules" indicates policies of general applicability, developed in advance of a specific situation or controversy, and equally applicable to all requesters. The City has made no indication that it has developed any such generally applicable policies in advance, and VFSC asserts and insists that the City cannot make up standards on the fly to suit the City's own convenience in responding to VFSC's already-pending requests. One need not read very far into the Vermont Supreme Court case law noted in the annotations to Title 1 Subchapter 5 to see the unwavering rulings by the Court that the Legislature has already resolved doubts in favor of requesters over government claims of inconvenience, and that all ambiguities in the records law are to be resolved against government and in favor of requesters.
VFSC does not and will not accept the proposal made by the City to VFSC on October 22 that the City will allocate one day a week for VFSC to examine records, or that the City may proceed at its convenience or leisure to examine or provide records to VFSC.
VFSC also does not accept the City's self-serving contention in your October 22 letter and prior correspondence that VFSC's request somehow originated on October 8; it is and has at all times been clear that VFSC's requests originate in VFSC's initial September 18 request for records- notwithstanding the City's initial attempt, unfounded in either law or fact, to argue that "a request isn't really a request."
It is not lost on VFSC that the City did not begin to make any records available for examination until the day after a hearing and City Council action on the very subjects on which VFSC made inquiry over a month earlier. This is a flagrant departure from both spirit and letter of the law.
Much of what the City provided to VFSC for examination on October 22, such as minutes and agendas, should have been made immediately available within three days of VFSC's initial September 18 request, per the requirement at Section 318(a) that "the custodian of a public record shall promptly produce the record for inspection" and the requirement at (a)(2) to make records available within three days.
The law requires the City to do no less than to rigorously and diligently provide records for examination. Vermont's records law makes no exception for inconvenience or for situations where government has failed to keep and understand its own records in a manner that would allow it to comply with the law's requirement for prompt availability. Such an interpretation would reward and encourage poor record keeping.
Please make specific indication of how the City intends to accelerate and make good on its obligations under law, particularly with regard to the subjects and records highlighted in VFSC's October 8 correspondence (which do not waive or withdraw VFSC's initial broader requests), or in the alternative, please state with particularity that the City is refusing to do so, and the "head of agency" to which VFSC must appeal under Section 318.
Thank you;
Evan Hughes
Vice President - Vermont Federation of Sportsmen's Clubs