Tuesday, December 31, 2013

New Year's Resolution For Vermonters

Mary and I want to wish you a very Happy New Year in 2014!
Today, like many, I went through the exercise of what I wanted to have for a New Year's Resolution(s). 
I wanted something I could not only make, but also keep.
So, I will share my New Year's Resolution with you and ask if you want, you too can adopt the same one or create a similar wish with your own features.
My New Year's Resolution is based upon the following:
The Vermont Federation of Sportsmen's Clubs, Inc., established a fund to help defray the costs generated to defend "OUR" Sportsmen's Bill of Rights. 
This is one of the most precious laws we have and need to vigorously defend it for all Sportsmen.
My resolution is to pledge the amount of $19.00 per month for 12 months in 2014.  I know this resolution is one I can easily make and easily keep. 

I am asking as many as possible to make the same or similar pledge for which I thank you in advance.
The pledge can be sent to VFSC; 14 Stafford Avenue; Morrisville, VT 05661with a note stating for the "Sportsmen's Bill of Rights Defense Fund" or at www.vtfsc.org.

Again, Happy New Year from our home to yours.

Clint and Mary
Clint Gray,
Immediate Past-President
Vermont Federation of Sportsmen's Clubs, Inc.
Care Trak Northeast

Friday, December 27, 2013

Public Records Request - Burlington Report #11

Proudly Serving Vermont Since 1875
Report for Day #11 of On-site VT Public Record Law Review of Burlington Anti-Gun Proposals
Burlington City Hall, 12/23 1:00PM – 4:30PM
On Monday, December 13, Chris Bradley and Evan Hughes were in Burlington City Hall for a document review session for the Vermont Public Records Review Law request the Vermont Federation of Sportsmen's Clubs (VFSC) submitted to the city on September 19.
On December 16 the VFSC filed an "appeal" letter challenging the city on numerous deficiencies of the city in complying with the public records request. Below and above is the written response of Burlington Miro Weinberger to the federation's challenge.
In the letter the mayor acknowledges that of the 117 documents it had previously withheld from public view, 25 would be released in a file among other documents made available in a computer file. A cross-reference of a log of withheld documents, with 25 marked for disclosure and the computer file revealed that only 3 of the listed 25 had been released.
When the city IT personnel were advised of the missing 22 document, the city administrator and city attorney were notified and the staff provided hard copies of the documents. The documents were provided at closing time and there was insufficient time to again cross-reference the materials with the log. A review reveals that one document is still missing and has again been requested.
The city attorney and city administrator has previously told us that there were 900 documents that had been set aside for review and the review would be completed by the end of the year.
Chris Bradley & Evan Hughes
Office of Mayor Miro Weinberger
December 23,2013
Evan Hughes, VFSC Vice-President
16 Millstone Blvd.
Barre, VT 05641
RE: Appeal of Public Records Request dated December 16, 2013
Dear Mr. Hughes,
This letter is in response to your email of December 16, 2013, concerning an appeal of records issues under 1 V.S.A.§31B(c).
I begin by restating the City's commitment to transparency and to meeting the requirements of Vermont's public records law. To that end, the Administration has been working steadily to respond to your request. As you know. the initial search terms led to
many thousands of documents, and we have now reviewed over 9,000 of those. Of those, we have produced to you over 2,500 documents and identified 117 as exempt. We are reviewing and logging a further batch of exempt documents and are working to have a complete log of those exempt documents to you by the end of the calendar year.
The first seven paragraphs of your letter do not request or appeal records under the Vermont Public Records Act, so do not require a response. I do want to emphasize that, as you have been told, the City has taken your request for public records seriously and has been working diligently to respond to it. All City officers, employees, and Council members have been asked to provide all communications or other materials that are responsive to your request, and it is my understanding that they have done so.
As to paragraphs B,9, and 10, you request that I revisit and reverse the City's exemption of documents under 317(c)(17). I have reviewed your request and the documents we have withheld under that exemption. As you undoubtedly are aware, this exemption is designed to "allow decision makers access to the fuller spectrum of competing ideas that the promise of candor encourages and the specter of public scrutiny chills before voting or otherwise choosing a particular course." Montpelier Firefighters Ass'n v. City of Montpelier, No. 85-2-13 Wncv (Vermont Superior Court, Washington Unit, March 4,2013). Vermont courts have recognized the importance of municipal officials' having an opportunity for private exchange and analysis prior to making a decision. See, e.g., Bethel v. Bennington School District, Inc., No. 403-10-07 Bncv (Bennington Superior Court July 24,2008). These court decisions support my personal belief that the most effective decision-making for the public
good comes through thoughtful, well-reasoned analysis and debate.
However, after careful re-examination, I have found that the City's exemption of documents under (c)(17) may have been applied too broadly with respect to certain documents, and I have decided to disclose a number of records previously claimed as exempt and as outlined in the attached log. This log cross-references the previous five exemption logs that have been provided to you. These documents are included in the records being provided to you today. For the remaining documents claimed under this exemption, the City will continue to exert the exemption for the reasons described above.
Your next request in paragraph 12 is for me to reconsider the attorney-client privilege and you specifically reference email correspondence with Eric Miller. It appears to me that the exempt log does incorrectly reference (c)(3) for some of these communications when they should just have cited (c)(17). These references are corrected on the attached complete log.
As to paragraph 13, the City does not currently maintain a record reflecting all personnel hours spent in responding to your requests to date by date, hours, and person. We are working to pull together the information on Attorney Bergman's time that was previously promised.
As to paragraph 14, the City is diligently attempting to try to complete its review and production of the exemption log and most of the responsive documents (although perhaps not the updated records requested more recently) by the end of the calendar year. To that end, we have hired outside personnel to assist. If, for some reason, we cannot meet that timeline, we will let you know but believe we are on track to do so at this point.
Miro Weinberger, Mayor
Chris Bradley - Secretary
Vermont State Rifle And Pistol Association (VSRPA)

Tuesday, December 17, 2013

VFSC Burlington Report #9

Proudly Serving Vermont Since 1875




Report for Day #9 of On-site VT Public Record Law Review of Burlington Anti-Gun Proposals

Burlington City Hall, 12/11 9AM – 11:30AM



Chris Bradley and Evan Hughes were at the Burlington City Hall on Wednesday, December 11th for a material review session. 


The day started with a meeting between Eileen Blackwood (City Attorney) and Bob Rusten (Chief Administrative Officer) which lasted approximately 40 minutes with all parties demonstrating their professionalism. 

In this meeting, Chief Administrator Rusten indicated that they believed they have reviewed a total of approximately 5,000 documents.


Of those 5,000 documents, Mr. Rusten explained that they have produced approximately 2,400 documents (mostly emails) for our examination.  He then explained that another 1,600 documents from the 5,000 total were not produced as the City deemed them "not responsive" (meaning that they were not given to us as it was felt that they had no bearing on the Federation's Public Records Request). 


They then explained that approximately 800-900 additional documents have been set aside by the City for further review by them to ascertain whether they should be exempted, redacted or otherwise given to the Federation for review.


In considering the 800-900 documents which have been set aside for further review by the City, it must be noted that the City has already made the determination to redact or exempt 117 documents from Public Review and Inspection.  It should be further mentioned that in the trip to Burlington on 12/4, the Federation was informed by a City Official that the Federation would likely be receiving "hundreds and hundreds" more exemptions and/or redactions.  While it is purely conjecture, the Federation has reason to believe that most of the 800-900 documents will be the likely source of these additional redactions/exemptions, as these documents were already set aside at least once by the City for further internal scrutiny and consideration.


City Attorney Blackwood indicated that she would be pursuing the hiring of a person to help the City expedite the production of records, and she clearly stated that she felt the City had not been prepared at all to be responsive to the Federation's Public Records Request.  Mr. Rusten further indicated that there was still another 13,000 records to be reviewed – but that it was felt that most of these would not be responsive the Federation's Public Records Request.


As of today, December 16th, the Federation has formally appealed to Mayor Weinberger in regards to the 117 redacted or exempted documents to date.  In this letter we have requested that these documents be opened for inspection and, among other points concerning Burlington's responsiveness (or lack thereof), reminded him of his commitments to open government – which so far has been slow to be seen by the Federation.


We have additionally requested that the city return to not merely listing redacted or exempted documents, but physically provide them with appropriate sections blacked out.  We have further requested the amount of time spent by the City to date, and have now specifically asked for documents not previously provided (but requested), such as the notes kept by Charter Change Committee Chairwoman Siegal, and documents from/to Burlington Police Chief Michael Schirling.



Monday, December 16, 2013

Letter of Appeal of Public Record Request to City of Burlington

Proudly Serving Vermont Since 1875
16 Millstone Blvd, Barre, VT 05641
To:       Miro Weinberger, Mayor, City of Burlington
            City Attorney Office Personnel, City of Burlington
            City Council Members, City of Burlington
            City Management Personnel, City of Burlington
Date:   December 16, 2013
Re:       Appeal of Records Issues under 1 VSA § 318(c)
Dear Mayor Weinberger:
By this Letter, the Vermont Federation of Sportsmen's Clubs (VFSC) appeals the issues described below in regard to VFSC's Public Records Requests to the City of Burlington.
By appealing the specific issues below, VFSC does not waive the right to appeal other issues (to you or to court), or concede that the City has been in compliance with law on matters not mentioned below.
1.      As a preliminary matter, please be aware that VFSC's forty five different member clubs have thousands and thousands of members throughout Vermont, and a number of these individuals serve in local offices and are thus familiar with Vermont's Public Records law.  We request that you and the City of Burlington refer to and review the Vermont League of Cities and Towns' excellent "How to Respond to A Public Records Request" contained at pages 8 through 56 of VLCT's 'Selectboard Institute' 2012 materials, which can be found at the following:


2.      Please acknowledge that VFSC's initial September 18, 2013 letter to the City was and at all times has been a request for public records giving rise to obligations under Vermont's Public Records Law.

3.      Please acknowledge that the Public Records law specifically does not contain any basis to refuse or delay compliance, and, in fact, 1 VSA § 315 states that "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."

4.      Please acknowledge Vermont's well-settled principle that under the Public Records Law, any ambiguity as to whether an exemption applies is to be resolved in favor of the requester and against the government.

5.      Please acknowledge that "records" for purposes of a Record Request consist of "any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business" (1 VSA § 317(b)) and that any records that public officials create, transmit, revise, or receive, regardless of the method or means, relating to the topics before them, or business that they contemplate future action on, are public records. Therefore, please confirm that the City and all Officers, Employees, and Council Members have provided VFSC with all materials, including but not limited to emails from accounts or systems other than City IT systems, social media, text messages, communications on or by web sites, and other communications, within the scope of VFSC's requests, or make prompt arrangements to provide all such materials and give VFSC a date certain by which all such records will be provided.

6.      Please identify any other known instances in which the City or its officers or employees have invoked the inter- or intra-departmental exemption (c)(17) to withhold materials or portions of materials in response to a Public Record Request.

7.      Please:
a.      Acknowledge that you as Mayor have been communicating and coordinating with other Mayors and government officials within and beyond Vermont with interests or goals in restricting firearms and/ or other weapons.
b.      Acknowledge that you are aware that members of the City Council in general, and the Charter Change Committee in particular, have been actively communicating and coordinating with organizations and persons outside of Burlington's own City Government that support restricting firearms and/ or other weapons.
c.       Acknowledge that no exemption applies in those instances, and provide any such communications to or from or copied or forwarded regarding such other officials, persons, or organizations.

8.      VFSC asks that you, as Mayor, revisit and reverse the City's withholding of records that the City has withheld on the basis of exemption (c)(17) (intergovernmental deliberations related to policy formulation) for the following reason:  the Vermont Supreme Court has repeatedly held that even where certain materials may be subject to an exemption from the Public Records Law, the exemption does not justify the withholding of records if the public interest in availability of the records outweighs the purpose of the exemption. See for example Rutland Herald v. City of Rutland, 2013 VT 98, October 11, 2013, paragraph 10. The City's contemplated course of action would affect the statewide statute that preempts individual municipalities from regulating firearms (24 VSA Section 2295). The City's involvement with other governments and advocacy organizations elsewhere in Vermont and beyond Vermont also raises the importance of transparency as to what the City is doing, how, why, and with whom. All of this renders what the City is doing, how, why, and with who, subjects where the importance of disclosure outweighs the purpose of the inter- or intra- governmental exemption, and VFSC requests disclosure of all materials that the City has been withholding, or will or would withhold, based on that exemption.

9.      VFSC asks that you, as Mayor, revisit and reverse its withholding of records that the City has withheld on the basis of exemption (c)(17) (intergovernmental deliberations related to policy formulation) for the following further reason:

Although VFSC is not aware of any Vermont court decisions interpreting or applying this exemption, the State of Washington has an equivalent exemption and the Washington Supreme Court has made clear that the exemption does not authorize the type of carte blanche blanket withholding that the City has sought to date regarding records of communications within government:

"The purpose of this exemption severely limits its scope. Its purpose is to protect the give and take of deliberations necessary to formulation of agency policy. For that reason, the exemption "only protects documents which are part of `a deliberative or policy-making process'. We have specifically rejected the contention that this exemption applies to all documents in which opinions are expressed regardless of whether the opinions pertain to the formulation of policy. Moreover, unless disclosure would reveal and expose the deliberative process, as distinct from the facts upon which a decision is based, the exemption does not apply. In order to rely on this exemption, an agency must show that the records contain pre-decisional opinions or recommendations of subordinates expressed as part of a deliberative process; that disclosure would be injurious to the deliberative or consultative function of the process; that disclosure would inhibit the flow of recommendations, observations, and opinions; and finally, that the materials covered by the exemption reflect policy recommendations and opinions and not the raw factual data on which a decision is based. Subjective evaluations are not exempt under this provision if they are treated as raw factual data and are not subject to further deliberation and consideration. Once the policies or recommendations are implemented, the records cease to be protected under this exemption."
Progressive Animal Welfare Society v. Univ. of Washington, 884 P.2d 592 (1994).

The burden is on the government to show each of the prerequisites, as to each record it seeks to withhold, in order to validly invoke this exemption.

And once the decision being contemplated has been made, the exemption ceases to apply. Therefore, for deliberations that led up to City Council action to date, even if exemption (c)(17) did apply prior to action, the exemption no longer applies post-action.

VFSC thus requests that you either provide specific justification for each record withheld as to why each prerequisite justifies the exemption, or, in the absence of that justification for each record, that you provide that record, and, also, even if the exemption had applied, if the deliberations were pertinent to action that has now already been taken, that you now provide such records since the exemption now no longer applies.

10.  VFSC asks that you reverse decisions to date and provide all previously-withheld records (and going forward) meeting the following circumstances. Please acknowledge that Vermont law is clear that if privileged materials are shared beyond the immediate scope of persons and roles (in this context, within government) entitled to assert the privilege, then the privilege is waived. See Vermont Rule of Evidence 510. Thus, please provide any and all materials responsive to VFSC's requests, which the City has previously claimed are exempt, but that the City has shared, in any manner and at any time (whether by "CC," "blind CC," forwarding, or other transmittal), with persons or organizations outside of City government and the limited confines of specific outside legal counsel.  These requested records include but are not limited to circumstances where any sender or recipient was not part of the current administration or City Council as of the time that such person sent or received any item. Examples would include (but not be limited to): Andrew Savage, Judith Stanley, and Emma Mulvaney-Stanak.

11.  VFSC asks that you reverse decisions to date and provide all previously-withheld records (and going forward) meeting the following circumstances. Please acknowledge that the attorney-client privilege does not apply merely because a lawyer is the sender or recipient of a message, or copied on a message, but only applies when the communication is necessary to the lawyer's representation of the client. Thus please provide messages that may have involved lawyers but were to or from external senders, recipients, or copies (cc or bcc).

12.  VFSC asks that you reverse decisions to date and provide all previously-withheld records (and going forward) meeting the following circumstances. Please acknowledge that the attorney-client privilege only applies where there is in fact an attorney-client relationship and legal representation that is established and ongoing regarding the subjects of communication, not merely because a sender or recipient happens to be a lawyer.  Thus please provide any and all materials to or from Eric Miller, or on which Mr. Miller was copied, since Mr. Miller, although a lawyer, does not appear to be in any role where he is providing formal legal representation.

13.  Please provide any records reflecting personnel hours spent to date, by date and hours and person, showing what the City has done over time to respond to VFSC's requests.

14.  It has now been nearly three months since VFSC's initial request. Please provide a specific frame of action, and time frames, by which the City will complete compliance with review and disclosure obligations.
Evan Hughes
Vice President - Vermont Federation of Sportsmen's Clubs

Tuesday, December 10, 2013

Fwd: Report #8

Vermont Federation of Sportsmen's Clubs, Inc.

Proudly Serving Vermont Since 1875



Report for Day #8 of On-site VT Public Record Law Review of Burlington Anti-Gun Proposals

Burlington City Hall, 12/4 9AM – 11:30AM


Chris Bradley and Evan Hughes were at the Burlington City Hall on Wednesday, December 4th for a material review session. The city did not have enough documents available in the preceding week to make a site visit worthwhile.


During this visit the city produced 540 Emails of which 46 were originals and the rest were duplications of previously provided items; this brings the overall total of emails provided by Burlington to 2,544 – of which approximately 625 are non-duplicates. The City of Burlington has informed the Vermont Federation of Sportsmen's Clubs that thus far it has withheld 117 documents from the Federation review.


During this meeting the city informed the Federation that given a decision by the mayor, city council and city attorney that the number of withheld documents would increase dramatically. The city related the related the increased documents would be in the "hundreds" and when asked for clarification of that term of numbers, the number of "500" was cited.


If the city holds to that number, there would be over six hundred documents that the city will have withheld from public view via the Vermont Public Record Law request the Federation has submitted to the city.


The City of Burlington would be withholding these documents about how it creates a proposal to have the legislature on its proposed gun control ordinance that will give the city the power to arrest, prosecute, imprison, fine and seize the property of citizens.


Is this the way you believe Vermont law should be enacted?


Just FYI:  The 4 attachments to this email are examples of exempted and redacted documents that have been given to us.




Chris Bradley - Secretary

Vermont State Rifle And Pistol Association (VSRPA)



Thursday, December 5, 2013

Another National Recognition of the VFSC battle with Burlington

A national gun rights organization publishes the Vermont Federation of Sportsmen's Clubs
campaign to protect our Vermont Sportsmen's Bill of Rights.  To read click on the link below:

The Vermont Federation of Sportsmen's Clubs has created a fund to aid in its campaigns
to defend freedom, such as defending the Vermont Sportsmen's Bill of Rights.  It is
available by clicking on the link above.
You can read the GUNS Magazine article on the VFSC battle with the City of Burlington