Tuesday, October 8, 2013

Vermont Federation of Sportsmen's Clubs Second FOIA request to the City of Burlinton

PO Box 225, Lyndonville, VT 05851
To:          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 4th, 2013
RE:          Freedom of Information Request
Dear Mr. Rusten;
The Vermont Federation of Sportsmen's Clubs (VFSC) is in receipt of your letter dated September 24.
As Vermont's largest local government, it would have been hoped that the City would be more familiar with, and respectful of, both the broad policy and specific details of the Vermont laws on public records.
As a preliminary matter, VFSC appoints and authorizes Evan Hughes of Barre, Vermont, who is a VFSC Vice-President, to be its representative in relation to this and future matters regarding VFSC's request for records from Burlington. There is no requirement that an organization be represented by a lawyer to make or pursue a records request, and Mr. Hughes is familiar with many aspects of law and administrative proceedings. Mr. Hughes' contact information is as follows and any and all  further correspondence or communication regarding the VFSC's record request should be directed to Mr. Hughes:
Evan Hughes
16 Millstone Blvd
Barre, VT 05641
As a second preliminary matter, VFSC is astonished at the repeated assertions in your September 24 letter that VFSC's request to inspect records is somehow "not a request" giving rise to any obligations whatsoever by the City under Vermont Statutes Title 1 Chapter 5. The only place in the law that even requires that a request be made in writing is in Section 316(c): "The agency may require that requests subject to staff time charges under this subsection be made in writing..."  It is common, and valid, for persons requesting public records under Title 1 to simply make a verbal request. A requester can never be as familiar with what records government holds as the government itself is. The decisions of the Vermont Supreme Court state over and over again that the purpose of the law is to foster responsive, transparent, and accountable government, with required receptivity to requests, and resolution of ambiguities in favor of requesters. Since a mere verbal request is sufficient, since the law is to be construed in favor of persons making record requests, and since VFSC is being clear on the subjects of interest, it is preposterous to assert, as the City has done via your letter, that no part of VFSC's September 16 request is actually really a request. The VFSC expects the City to revisit its position on this issue of "whether a request is really a request," and believes that if the City persists in maintaining that position, it will be in flagrant and deliberate violation of the spirit, purpose, and letter of the Vermont statutes on public access to records.
Your next assertion: "Please be advised that the City does not have a record that identifies and describes the documents identified in [VFSC's September 16 request]" similarly stands the purpose and requirements of the public records law on its head. It is inherent and unavoidable that a requester of records is tremendously less familiar with what records even exist, who made them, who keeps them, or what they are called, and other details, than the agency and personnel who make and keep records in their role as public servants. Public officials are responsible for being able to find and produce records that may be responsive to a records request, without a requester having to "pin the tail on the donkey, blindfolded" by crystal-balling and requesting exactly a certain record by exactly a certain name. Again, VFSC asserts that if the City persists in that position, it will be in open and deliberate violation of law.
Your letter then digresses into assertions that if VFSC wants the City to create a record that does not yet exist, the City expects VFSC to pay for the effort of doing so. VFSC acknowledges that in general a requester is only entitled to already-existing documents, but that is all that VFSC is asking for. VFSC does not agree with your assertion that any part of VFSC's request asks for the creation of new documents. The one exception is that VFSC expects the city to identify and describe items that the City may claim are exempt from examination or copying, in which case it is reasonable to expect that the City will identify and describe each of those items and why, specifically, it believes they are exempt. This is simply what is required under Section 318(a) (2): "if the custodian considers the record to be exempt from inspection under the provisions of this subchapter, the custodian shall so certify in writing. Such certification shall identify the records withheld and the basis for the denial." Compliance with that statutory requirement is not something that gives the City a basis to demand payment. Without some such particularized response, VFSC cannot know what is being withheld or on what basis, and would be unable to decide whether or to what extent VFSC may choose to pursue other measures under the public records law. Under Section 318(e), to the extent that the City asserts that some records are partially but not wholly exempt from examination or copying, the City is obligated to redact exempt portions, and only those portions, and produce the remainder of the responsive documents.
Your letter next asserts that "[g]iven the nature of our workforce your direction is unclear as to whose records are sought to be inspected" and that, supposedly, VFSC "must, therefore, clarify to which managerial staff [a request] is being directed." This, again, is an invalid attempt to make a requester of records "pin the tail on the donkey, blindfolded." A requester will never be as familiar with the structures and roles within government as the government itself is. Having to specify individuals or details of offices or roles within government would be burdensome to requesters and place requesters at risk of omitting someone, only to then have that official, alerted to the request but not yet specifically named in a request, take the liberty of destroying documents. There is no requirement in the public records law that a requester masters the intricacies of the organizational structure of a given part of government before they can validly make a request. That would be utterly at odds with the purpose of the law.
In regard to your request that VFSC limit how far back in time VFSC's request reaches, VFSC is willing to confine its request to documents created, sent, received, or modified on or after January 1, 2012.
In regard to geographic scope, VFSC does not expect the City to research laws or regulations from other places outside Vermont, except that VFSC does expect the City to provide VFSC the opportunity to examine laws or regulations, on the subjects of VFSC's request, from any location or source, that the City has already actually acquired in the time frame covered by the last paragraph up until the present. If the source of any particular document is evident in such document or related documents, VFSC expects that the information as to the source also be made available to VFSC. Without limiting the foregoing, VFSC is particularly interested in materials indicating coordination with government officials, elected, hired or appointed and the personnel or representatives of organizations involved in or advancing gun control laws or regulations.
In regard to the various electronic messages and media covered by VFSC's II(F)-(M) as to which you assert that "materials [created or received] ... by employees outside the scope of their duties are records that are not produced in the course of agency business and are, therefore, outside the scope of the PRA" the City's response is dismissively and invalidly oversimplified. If a public employee or elected or appointed official happens to use outside systems or technologies other than centralized office systems in order to communicate about actions, potential actions, goals, policies, or other substance that relate to actual or contemplated government action or their individual inclinations in relation to their role in government, then the mode of transmission or reception does not take those records outside of the scope of the public records law. By analogy/ illustration, the City's position would mean that if employees or elected or appointed officials chose to conduct portions of government business on plain paper (instead of office letterhead) that they then mailed with their own envelope and stamp, such records would somehow be exempt from the public records laws. Such a position would encourage government action by back channels. The purpose of the public records laws is to let the governed know what the government is doing, and advances in technology, and employees and officials use of technology, should enhance, and not detract, from that transparency.
Regarding the City's response to VFSC's II (Q), the point of VFSC's request is to make sure that the City is not deleting or destroying records that could relate to VFSC's request when the City may not have a valid basis to do so; this is part of being responsive and responsible in providing access to public records.
One of the City's final points is to ask that VFSC narrow its request, purportedly to "allow us both to meet the benefits, bounds, and requirements of the law." Section 318(d) says that government "may request that a person... narrow the scope of a public records request...." Government may ask, but government may not demand, nor may it fail to answer or delay or condition its response, on whether the requester actually narrows the request. To whatever extent public records requests are burdensome, court decisions make clear that the Legislature has knowingly and deliberately chosen to place the burden on government, rather than to deny, curtail, or discourage the public's access to information. See for example Judge (now Justice) Crawford's decision in VSEA v. Vt. Agency of Natural Resources, Docket 517-7-10 Wncv, January 6, 2011. In stark contrast, the earlier part of Section 318(d) makes it mandatory that government "shall consult with the person making the request in order to clarify the request or to obtain additional information that will assist the public agency in responding to the request." VFSC believes that the City's September 24 letter- starting with its claim that a request is not a request- makes no attempt to confer or help VFSC understand what records may be available, or that would otherwise allow VFSC to assist the City in responding to VFSC.
At minimum, VFSC expects the City to cease any deletion or destruction of records potentially within the scope of VFSC's request. Such preservation should have already immediately commenced upon the City's receipt of VFSC's request, as outlined in the Vermont Supreme Court's decision in Price v. Town of Fairlee "[routine or intentional record destruction] must be stayed when a public-records request for the material is filed pursuant to 1 V.S.A. § 318, and the stay must remain in effect until the request is resolved.") 2011 VT 48, paragraph 21. The City should begin to identify and provide records that squarely and clearly fall within VFSC's request and that are not exempt. It is unreasonable to withhold all records until all aspects of the request are mutually clear to both sides. Once the City begins to be responsive to VFSC on the obvious and simple, VFSC *may* be willing, having gained a better understanding of what is available, or the relative responsiveness or difficulty of accessing particular records, to refine other portions of its request.
VFSC appreciates the City's attention to these matters consistent with the spirit and purpose of the public records law, and intends to hold the City to that spirit and purpose.
Clint Gray
President - Vermont Federation of Sportsmen's Clubs, Inc.