1 V.S.A. § 318 Procedure
(a) Upon request the
custodian of a public record shall promptly produce the record for inspection,
except that:
(1) if the record is in
active use or in storage and therefore not available for use at the time the
person asks to examine it, the custodian shall so certify this fact in writing
to the applicant and set a date and hour within one calendar week of the request
when the record will be available for examination;
(2) if the custodian considers the record to be exempt from inspection
under the provisions of this subchapter, he shall so certify in writing stating
his reasons for denial of access to the record. Such certification shall be
made within two business days, unless otherwise provided in subdivision (5)
of this subsection. The custodian shall also notify the person of his right
to appeal to the head of the agency any adverse determination;
(3) if appealed to the head of the agency, the head of the agency
shall make a determination with respect to any appeal within five days, excepting
Saturdays, Sundays, and legal public holidays, after the receipt of such appeal.
If an appeal of the denial of the request for records is in whole or in part
upheld, the agency shall notify the person making such request of the provisions
for judicial review of that determination under section 319 of this title;
(4) if
a record does not exist, the custodian shall certify in writing that the record
does not exist under the name given to him by the applicant or by any other
name known to the custodian;
(5) in
unusual circumstances as herein specified the time limits prescribed in this
subsection may be extended by written notice to the person making such request
setting forth the reasons for such extension and the date on which a determination
is expected to be dispatched. No such notice shall specify a date that would
result in an extension for more than ten working days. As used in this subdivision,
"unusual circumstances" means to the extent reasonably necessary
to the proper processing of the particular request:
(A) the need to search for and collect the requested records from
field facilities or other establishments that are separate from the office
processing the request;
(B) the need to
search for, collect, and appropriately examine a voluminous amount of separate
and distinct records which are demanded in a single request; or
(C) the need for consultation, which shall
be conducted with all practicable speed, with another agency having a substantial
interest in the determination of the request or among two or more components
of the agency having substantial subject matter interest therein, or with
the attorney general.
1 V.S.A. § 319 Enforcement
(a) Any person aggrieved by the denial of a request for public records under
this subchapter may apply to the superior court in the county in which the
complainant resides, or has his personal place of business, or in which the
public records are situated, or in the superior court of Washington County,
to enjoin the public agency from withholding agency records and to order the
production of any agency records improperly withheld from the complainant.
In such a case the court shall determine the matter de novo, and may examine
the contents of such agency records in camera to determine whether such records
or any part thereof shall be withheld under any of the exemptions set forth
in section 317 of this title, and the burden is on the agency to sustain its
action.
(b) Except as to cases the court considers of greater importance, proceedings
before the superior court, as authorized by this section, and appeals there
from, take precedence on the docket over all cases and shall be assigned for
hearing and trial or for argument at the earliest practicable date and
expedited in every way.
(c) If the public agency can show the court that exceptional circumstances
exist and that the agency
is exercising due diligence in responding to the request, the court may retain
jurisdiction and allow the agency additional time to complete its review of
the records.
(d) The court may assess against the public agency reasonable attorney fees
and other litigation costs reasonably incurred in any case under this section
in which the complainant has substantially prevailed.
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Case Law for 1 V.S.A. § 319
Executive privilege:
In Killington, Ltd. v.
Lash (1990) 153 Vt. 628, 572 A.2d 1368 the court
found that an in camera inspection of public records requested can permanently
forgo the protection of the interest by an exercise of executive privilege,
regardless of whether the court decides that an interest in secrecy outweighs
a need for disclosure.
The court further reasoned
however if an in camera inspection might risk the interests of the executive
branch then the governor or agency may pursue judicial review of the issues
before they are effected.
The court went on to find
that "a person seeking disclosure of documents concerning which an agency
has made a prima facie case for executive privilege must first demonstrate
why the need for the information outweighs the interest in confidentiality
before obtaining a right to in camera inspection by the court; common law
executive privilege was incorporated into the statute with its established
burdens."
This case was remanded
to allow "plaintiff to meet its burden of showing necessity for the documents."
Construction with other
laws:
Bloch v. Angney (1987) 149 Vt. 29, 538 A.2d
174
the court found that 1 V.S.A. § 319(a) makes the procedural requirements
of 1 V.S.A. § 318 a prerequisite to an action in the superior courts.
The court further reasoned
that the trial court “lacked subject matter jurisdiction to entertain action
seeking access to public records where complaint failed to allege compliance
with the procedural requirements of section 318 of this title."
Attorney's fees:
In The Burlington Free
Press v. University of Vermont (2001) 172 Vt. 303, 779 A.2d 60 the court looked
at four issues to determine whether the Free Press' suit against UVM, seeking
the release of documents, entitled them to legal fees. The four factors the
court looked at are: "(1) the public benefit derived by the lawsuit;
(2) the commercial benefit the requesting party will receive from release
of the requested documents; (3) the nature of the requesting party's interest
in the documents; and (4) whether the public agency had a reasonable basis
for withholding the documents."
The court went on to find
that the newspaper in their lawsuit against UVM met their burden of showing
and that trial court failed to exercise its discretion in denying award of
attorney fees, it was first necessary to consider whether plaintiff substantially
prevailed in its lawsuit and thus was eligible for attorney's fees.
The court further reasoned,
that based on the trial court's "statement indicating its belief that
newspaper's lawsuit against university was necessary for release of documents
it sought, it met the threshold test that it substantially prevailed, thereby
requiring consideration as to whether it was entitled to attorney's fees."
The court also found that
"News organizations are not automatically entitled to attorney's fees
when an award of fees does not serve as an incentive to encourage either the
requesting party to seek the release of documents or the public agency to
remove resistance to their release."
The court also held that
"In lawsuit against university by newspaper seeking release of documents
related to hazing incidents, trial court's denial of plaintiff's request for
attorney's fees was not an abuse of discretion where the denial was based
on several factors, including that (1) university's decision not to release
many of the documents was not only reasonable, but advisable; (2) attorney's
fee award was not necessary to remedy situation in which state agency delayed
release of public documents in the hopes that the delay and ensuing litigation
would create a financial barrier to those seeking the documents; and (3) some
of the documents would have been released anyway because of the federal lawsuit
filed by the complaining student.
In Animal Legal Defense Fund, Inc. v. Institutional Animal Care &
Use Committee of the University of Vermont (1992) 159 Vt. 133, 616 A.2d
224. The
court found that it was within discretion of trial court to award attorney's
fees to prevailing plaintiffs in action seeking declaration that Institutional
Animal Care and Use Committee of the University of Vermont was subject to
Open Meeting Law and Public Records Act.
They went on to find that
in an action "seeking declaration that Institutional Animal Care and
Use Committee of University of Vermont was subject to Open Meeting Law and
Public Records Act, award of $3,713 attorney's fees, which amounted to one-half
of prevailing plaintiffs' requested fees, was not unreasonable."
Note: Case law summaries
come in pertinent part from Vt. Stat. Ann.
1§ 319 (West, WESTLAW through 2003).
