Tuesday, February 18, 2014

Vermont Public Records Request to Burlington

Proudly Serving Vermont Since 1875
16 Millstone Blvd, Barre, VT 05641
To:       Bob Rusten, Chief Administrative Officer of Burlington
Date:     February 17, 2014
Re:        VFSC Freedom of Information – Public Records Request
Mr. Rusten -
The Vermont Federation of Sportsmen’s Clubs (VFSC) would like to review with the City of Burlington the approach the City is using to handle the VFSC’s Public Records Request (PRR).
The VFSC requests that the City respond to this letter in accordance with the City's obligation under Title 1 Section 318(d): "a public agency 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 and, when authorized by this subchapter, in facilitating production of the requested record for inspection or copying."
At the current time, the VFSC believes it understands that for those documents stored electronically, the City executes various searches so as to find documents and records that may be responsive to the VFSC’s PRR.  For the purposes of this letter, the VFSC will refer to this phase as “Step 1 – Initial Record Selection”.
Against the set of documents and records resulting from Step 1, the VFSC believes that the City then initially reviews each and every document or record so as to ascertain if the document or record might contain any material that the City feels would make it exempt, and the City additionally ascertains whether or not the document or record contains any material that the City feels would require redaction.  For the purposes of this letter, the VFSC will refer to this phase as “Step 2 – Initial Review”.
If the result of Step 2 finds no need to exempt or redact, the VFSC believes it understands that the document is then released and made available to the VFSC for review and inspection.
If however the result of Step 2 finds that any given document or record may contain material that might make that document or record exempt, or the Step 2 review finds that any given document or record may contain material that might require redaction, the VFSC believes it understands that the City sets that document or record aside for a later, and more detailed review by the City.  For the purpose of this letter, the VFSC will refer to this phase as “Step 3 – Final Review”.
If the Step 3 review by the City determines that the document or record does not require exemption or redaction, the VFSC believes that the document is released for subsequent review and examination.  If however the Step 3 review determines that an exemption or redaction is required, then the City updates what the City has referred to as the “Exemption Log” with information regarding the exemption or redaction, and then handles the document or record as the Step 3 – Final Review determination requires.    
Based on the above, the VFSC has the following specific questions that we respectfully request answers to at your earliest convenience:
1.    Is the process described above a generally accurate description of the process the City is using?

2.    If the answer to Question #1 above is “no”, then the VFSC respectfully requests a brief written description of the City’s processing, using “Step” descriptions similar to what the VFSC has attempted to do above.

3.    If the answer to Question #1 above is “yes”, then at any given point in time the City either has documents and records that are pending a final determination, or it has no such documents pending a final determination. 

While it may be “convenient” for the City to set documents aside in order to make a final determination on them at some nebulous point in the future, this is not in keeping with 1 V.S.A. § 318 (2) which indicates that a determination of exempt records must occur within 3 business days.  While 1 V.S.A § 318 (5) does allow for an extension in making an exempt determination under “unusual circumstances”; the VFSC notes that this section of statute requires that the City provide written notice of the reasons for such a delay, and the VFSC does not believe it has ever been given such written notice. Even if such notice has been given – 1 V.S.A. § 318 (5) only grants a 10 day extension on making a final determination.

Given that the nature of the VFSC’s PRR is comprehensive, and that the City is already far behind the strict deadlines for response contained in the public records law, the VFSC formally requests that VFSC representatives be given access to the current copy of the Exemption Log whenever they schedule an onsite request visit – with these visits usually occurring with several days notice to the City.

Further, and again given the comprehensive nature of the VFSC’s PRR and the City's tardiness in meeting the statutory timelines for response, the VFSC formally requests that the VFSC representatives additionally be given the current count of documents and records which are awaiting a final determination at the time of the VFSC scheduled visit, and the VFSC additionally requests assurances from the City that the City has not, and will not in the future, delay making a final determination within 3 business days.

Given that the Statement of Policy regarding 1 V.S.A. Chapter 5, Sub-Chapter 3 indicates that its provisions will be “liberally construed”, does the City agree to the VFSC’s formal request to make available to VFSC personnel both a copy of the current version of the Exemption Log, and additionally the count of documents and records pending final determination, when VFSC personnel present themselves onsite?

4.      From the records the City has produced to date, it is crystal clear that City Councilor Blais was pivotal in the creation of the situation that set the stage for the VFSC’s PRR.  For example:  Certain City records show that Mr. Blais was working in conjunction with Councilor Brennan on topics concerning Firearms as early as April of 2012, yet there is a complete dearth of any emails, notes or documents from or to Norm Blais, or between Councilors Blais and Brennan, that concern firearms prior to December 17, 2012, and it really doesn’t make much sense that this would be the case.

The VFSC is therefore skeptical that Councilor Blais has been forthcoming with all material that would be responsive to our request, including all emails, notes, documents or any other material.

Will the City please review this situation and either provide any and all material which may have been overlooked or not forwarded to the City by Councilor Blais, and also provide a written response concerning this specific question?

5.      The VFSC requests information on whether or not Judith Stephany was in the employ of the City for the period of time between January 1, 2012 and the date of this letter, in any capacity.
Evan Hughes
Vice President - Vermont Federation of Sportsmen’s Clubs
CC:       Burlington City Mayor Miro Weinberger
             Burlington City Chief of Staff
             Burlington City Attorney  Eileen Blackwood
             Burlington Assistant City Attorney Eugene Bergman
             Burlington City Councilors