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