1 V.S.A. § 317(b) Definitions;
public agency; public records and documents
As
used in this subchapter, "public record" or "public document"
means all papers, documents, machine readable materials or any other
written or recorded matters, regardless of their physical form or characteristics,
that are produced or acquired in the course of agency business. Individual
salaries and benefits of and salary schedules relating to elected or
appointed officials and employees of public agencies shall not be exempt
from public inspection and copying.
1 V.S.A. § 317(a) Definitions;
public agency; public records and documents
As
used in this subchapter, “public agency” or “agency” means any agency,
board, department, commission, committee, branch, instrumentality or
authority of the state or any agency, board, committee, department,
branch, instrumentality, commission or authority of any political subdivision
of the state.
10 V.S.A.§ 121 Definitions
As
used in this chapter:
(1) "VGIS" means the Vermont geographic information system
developed pursuant to the comprehensive strategy developed by the center
as required by section 122 of this title.
(2) "Electronic products and services" means computer-related
services and products provided by the center, including:
(A) Electronic manipulation of the data contained in public records
in order to tailor the data to a customer's request, or to develop a
product that meets the needs of customers.
(B) Duplication of public records in alternative formats not used by
the center, providing periodic updates of an electronic file or database,
or duplicating an electronic file or database.
(C) Provision of on-line access to an electronic file or database or
any form of electronic access to the information system of the center.
(D) Provision of software developed by or for the center.
(E) Generating maps, listings, or other standard or customized products
from an electronic geographic information system.
(3) "Media" means the physical material on which written,
printed, or electronically encoded information is stored.
9 V.S.A.§ 271 Definitions
For
purposes of this chapter:
(1)
“Agreement” means the bargain of the parties in fact, as found in their
language or inferred from other circumstances and from rules, regulations,
and procedures given the effect of agreements under laws otherwise applicable
to a particular transaction.
(2)
“Automated transaction” means a transaction conducted or performed,
in whole or in part, by electronic means or electronic records, in which
the acts or records of one or both parties are not reviewed by an individual
in the ordinary course in forming a contract, performing under an existing
contract, or fulfilling an obligation required by the transaction.
(3)
“Computer program” means a set of statements or instructions to be used
directly or indirectly in an information processing system in order
to bring about a certain result.
(4)
“Consumer” means an individual who obtains, through a transaction, products
or services which are used primarily for personal, family, or household
purposes, and also means the legal representative of such an individual.
(5)
“Contract” means the total legal obligation resulting from the parties’
agreement as affected by this chapter and other applicable law.
(6)
“Electronic” means relating to technology having electrical, digital,
magnetic, wireless, optical, electromagnetic, or similar capabilities.
(7)
“Electronic agent” means a computer program or an electronic or other
automated means used independently to initiate an action or respond
to electronic records or performances in whole or in part, without review
or action by an individual.
(8)
“Electronic record” means a record created, generated, sent, communicated,
received, or stored by electronic means.
(9) “Electronic signature” means an electronic sound, symbol,
or process attached to or logically associated with a record, and executed
or adopted by a person with the intent to sign the record.
(10) “Governmental agency” means an executive, legislative, or
judicial agency, department, board, commission, authority, institution,
or instrumentality of the federal government or of a state or of a county,
municipality, or other political subdivision of a state.
(11) “Information” means data, text, images, sounds, codes, computer
programs, software, databases, or the like.
(12) “Information processing system” means an electronic system
for creating, generating, sending, receiving, storing, displaying, or
processing information.
(13) “Person” means an individual, corporation, business trust,
estate, trust, partnership, limited liability company, association,
joint venture, governmental agency, public corporation, or any other
legal or commercial entity.
(14) “Record” means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is retrievable
in perceivable form.
(15) “Security procedure” means a procedure employed for the purpose
of verifying that an electronic signature, record, or performance is
that of a specific person or for detecting changes or errors in the
information in an electronic record. The term includes a procedure
that requires the use of algorithms or other codes, identifying words
or numbers, encryption, or callback or other acknowledgment procedures.
(16) “State” means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands, or any territory
or insular possession subject to the jurisdiction of the United States.
The term includes an Indian tribe or band, or Alaskan native village,
which is recognized by federal law or formally acknowledged by a state.
(17) “Transaction” means an action or set of actions occurring
between two or more persons relating to the conduct of business, commercial,
or governmental affairs.
(7)
personal documents relating to an individual, including information
in any files maintained to hire, evaluate, promote or discipline any
employee of a public agency, information in any files relating to personal
finances, medical or psychological facts concerning any individual or
corporation; provided, however, that all information in personnel files
of an individual employee of any public agency shall be made available
to that individual employee or his designated representative;
(8)
test questions, scoring keys, and other examination instruments or data
used to administer a license, employment, or academic examination;
(9)
trade secrets, including, but not limited to, any formulae, plan, pattern,
process, tool, mechanism, compound, procedure, production data, or compilation
of information which is not patented, which is known only to certain
individuals within a commercial concern, and which gives its user or
owner an opportunity to obtain business advantage over competitors who
do not know it or use it;
(10)
lists of names compiled or obtained by a public agency when disclosure
would violate a person’s right to privacy or produce public or private
gain; provided, however, that this section does not apply to lists which
are by law made available to the public, or to lists of professional
or occupational licensees;
(11)
student records at educational institutions funded wholly or in part
by state revenue; provided, however, that such records shall be made
available upon request under the provisions of the Federal Family Educational
Rights and Privacy Act of 1974 (P.L. 93-380) and as amended;
(12)
records concerning formulation of policy where such would constitute
a clearly unwarranted invasion of personal privacy, if disclosed;
(13)
information pertaining to the location of real or personal property
for public agency purposes prior to public announcement of the project
and information pertaining to appraisals or purchase price of real or
personal property for public purposes prior to the formal award of contracts
thereof;
(14)
records which are relevant to litigation to which the public agency
is a party of record, provided all such matters shall be available to
the public after ruled discoverable by the court before which the litigation
is pending, but in any event upon final termination of the litigation;
(15)
records relating specifically to negotiation of contracts including
but not limited to collective bargaining agreements with public employees;
(16)
any voluntary information provided by an individual, corporation, organization,
partnership, association, trustee, estate, or any other entity in the
state of Vermont, which has been gathered prior to the enactment of
this subchapter, shall not be considered a public document;
(17)
records of inter-departmental and intra-departmental communications
in any County, City, Town, Village, Town School District, Incorporated
School District, Union School District, Consolidated Water District,
Fire District, or any other political subdivision of the state to the
extent that they cover other than primarily factual materials and are
preliminary to any determination of policy or action or precede the
presentation of the budget at a meeting held in accordance with 1 V.S.A.
§ 312;
(18) records of the office of internal investigation of the department
of public safety, except as provided in section 1923 of Title 20;
(19)
records relating to the identity of library patrons or the identity
of library patrons in regard to the circulation of library materials;
(20)
information which would reveal the location of archeological sites and
underwater historic properties, except as provided in section 762 of
Title 22;
(21)
lists of names compiled or obtained by Vermont Life magazine for the
purpose of developing and maintaining a subscription list, which list
may be sold or rented in the sole discretion of Vermont Life magazine,
provided that such discretion is exercised in furtherance of that magazine’s
continued financial viability, and is exercised pursuant to specific
guidelines adopted by the editor of the magazine;
(22)
any documents filed, received, or maintained by the agency of commerce
and community development with regard to administration of 32 V.S.A.
chapter 151, subchapters 11C and 11D (new jobs tax credit; manufacturer’s
tax credit), except that all such documents shall become public records
under this section subchapter when a tax credit certification has been
granted by the secretary of administration, and provided that the disclosure
of such documents does not otherwise violate any provision of Title
32.
(23)
any data, records or information developed, discovered, collected or
received by or on behalf of faculty, staff, employees or students of
the University of Vermont or the Vermont state colleges in the conduct
of study, research or creative efforts on medical, scientific, technical,
scholarly or artistic matters, whether such activities are sponsored
alone by the institution or in conjunction with a governmental body
or private entity, until such data, records or information are published,
disclosed in an issued patent or publicly released by the institution
or its authorized agents. This subdivision applies to, but is not limited
to, research notes and laboratory notebooks, lecture notes, manuscripts,
creative works, correspondence, research proposals and agreements, methodologies,
protocols, and the identities of or any personally identifiable information
about participants in research.
(24)
records of, or internal materials prepared for, the deliberations of
any public agency acting in a judicial or quasi-judicial capacity.
(25)
passwords, access codes, user identifications, security procedures and
similar information the disclosure of which would threaten the safety
of persons or the security of public property.
(26)
Information and records provided to the department of banking, insurance,
securities, and health care administration by an individual for the
purposes of having the department assist that individual in resolving
a dispute with any person or company regulated by the department, and
any information or records provided by a company or any other person
in connection with the individual’s dispute.
(27)
Information and records provided to the department of public service
by an individual for the purposes of having the department assist that
individual in resolving a dispute with a utility regulated by the department,
or by the utility or any other person in connection with the individual’s
dispute.
(28) records of, and internal materials prepared for, independent
external reviews of health care service decisions pursuant to 8 V.S.A.
§ 4089f and of mental health care service decisions pursuant to 8 V.S.A.
§ 4089a.
(29)
the records in the custody of the secretary of state of a participant
in the address confidentiality program described in chapter 21, subchapter
3 of Title 15, except as provided in that subchapter.
(30) all code
and machine-readable structures of state-funded and controlled database
applications, which are known only to certain state departments engaging
in marketing activities and which give the state an opportunity to obtain
a marketing advantage over any other state, regional or local governmental
or nonprofit quasi-governmental entity, or private sector entity, unless
any such state department engaging in marketing activities
determines that the license or other voluntary disclosure of such materials
is in the state’s best interests.
(31) records of a registered voter’s month and day of birth, motor
vehicle operator’s license number, the last four digits of the applicant’s
Social Security number, and street address if different from the applicant’s
mailing address contained in an application to the statewide voter checklist
or the statewide voter checklist established under section 2154 of Title
17.
(32) With respect to publicly-owned, -managed, or -leased structures,
and only to the extent that release of information contained in the
record would present a substantial likelihood of jeopardizing the safety
of persons or the security of public property, final building plans
and as-built plans, including drafts of security systems within a facility,
that depict the internal layout and structural elements of buildings,
facilities, infrastructures, systems, or other structures owned, operated,
or leased by an agency before, on, or after the effective date of this
provision; emergency evacuation, escape, or other emergency response
plans that have not been published for public use; and vulnerability
assessments, operation and security manuals, plans, and security codes.
For purposes of this subdivision, “system” shall include electrical,
heating, ventilation, air conditioning, telecommunication, elevator,
and security systems. Information made exempt by this subdivision
may be disclosed to another governmental entity if disclosure is necessary
for the receiving entity to perform its duties and responsibilities;
to a licensed architect, engineer, or contractor who is bidding on or
performing work on or related to buildings, facilities, infrastructures,
systems, or other structures owned, operated, or leased by the state.
The entities or persons receiving such information shall maintain the
exempt status of the information. Such information may also be
disclosed by order of a court of competent jurisdiction, which may impose
protective conditions on the release of such information as it deems
appropriate. Nothing in this subdivision shall preclude or limit
the right of the general assembly or its committees to examine such
information in carrying out its responsibilities or to subpoena such
information. In exercising the exemption set forth in this subdivsion
and denying access to information requested, the custodian of the information
shall articulate the grounds for the denial.
(33) The account numbers for bank, debit, charge, and credit cards
held by an agency or its employees on behalf of the agency.
Case Law for 1 V.S.A. §317
Addresses
and Names:
In
Finberg v. Murnane (1992) 159 Vt. 431, 623 A.2d 979 the court
established that lists of names and address were part of examinable
public records so long as they were not provided for by an exemption(s).
Affidavits:
In
State v. Tallman (1987) 148 Vt.465, 537 A.2d 422 the court held
that affidavits of probable cause (prior to their examination by the
court) are excluded by 1 V.S.A. §317(c)(5).
Detection
and Investigation:
In
Caledonian-Record Publishing Co. v. Walton (1990) 154 Vt. 15,
573 A.2d 296 the court found that 1 V.S.A. §317(c)(5)
(exempting records dealing with detection and investigation of a crime)
"should be construed strictly against the custodians of records
and any doubts should be resolved in favor of disclosure."
The court also held that arrest records are not records that deal with
detection and investigation and are therefore subject to disclosure.
Additionally the court found that citations must be disclosed as well
and are not subject to the exemptions of 1 V.S.A.
§317(c)(5). However the court concluded that enforcement agencies
may exclude names of persons if there is an ongoing investigation.
Disciplinary
Investigation:
The
court in Douglas v. Windham Superior Court (1991) 157 Vt. 34,
597 A.2d 774, found that disciplinary investigation records of a professional
licensing agency are provided for by exception in 1
V.S.A. §317(c)(5), but the court reasoned that this in no way applies
to discovery in litigation.
Executive Privilege:
In
Killington, Ltd. v. Lash (1990) 153 Vt. 628, 572 A.2d 1368 the
court held that if an agency of the governor has made a prima facie
case for executive privilege in regards to a request for records that
fit within an exemption, the person making the request must show that
the need for the information is greater than the interest in confidentiality.
Executive privilege is based on the common law exemption provided in
1 V.S.A. §317(c)(4). Killington, LTD v.
Lash (1990) 153 Vt.
628, 572 A.2d 1368
In
Killington, LTD v. Lash (1990) 153 Vt. 628, 572 A.2d 1368 the
court held that Executive privilege protects the deliberative process
through which government decisions and policies are formulated, promoting
frank expression and discussion.
In
Herald Association, Inc. v. Dean 816 A2d 469 the court held that
a governor’s schedule is a public record and certain specific information
contained within it is so unrelated to the deliberative or policymaking
process that it fails to qualify for a claim of executive privilege.
In
New England Coalition v. Office of the Governor 164 Vt. 327 (1995)
the court held that the decision-making of the chief executive is not
prescribed by statute, not does it consist of regularized procedures.
The public does not have the same interest in examining the internal
workings of the process. The chief executive has a range of consultative
and decisional responsibilities not easily separated by discrete predecision
and postdecision lines.
Motive:
In
Finberg v. Murnane (1992) 159 Vt.
431, 623 A.2d 979 the court held that motive is irrelevant as it relates
to the right of access.
Personal Documents:
In
the Trombley v. Bellows Falls Union High School District No. 27 (1993)
160 Vt. 101, 624 A.2d 857 court found that the 'personal documents'
exception to this subchapter applies only to documents that reveal "intimate
details of a person's life."
Public Agency:
In
Herald Association, Inc. v. Dean 816 A2d 469 The court established
that the Governor is an “agency” under 1 V.S.A.
317(b).
In
Sprague v. University of Vermont,
661 F. Supp. 1132 (D. Vt. 1987), the court found that since records
of students at public universities are exempt from disclosure under
1 V.S.A. §317(c)(11), the University is an
'agency.' The court further reasoned that the University of Vermont
professor being charged with forging her own evaluations was entitled
to examine those documents pursuant to 1 V.S.A.
§317(c)(7).
