Penalties for Improper
Withholding of Public Records: There are general penalties for improperly
withholding public records in 1 V.S.A.§ 320. These range from the court assessing the
agency reasonable attorney and other litigation costs to possible disciplinary
action.
Penalties for Unauthorized
Destruction of Public Records: There are penalties, in
22 V.S.A. § 455, for “a person who willfully destroys,
gives away, sells, discards or damages” public records without authorization
to do so. Authorization is provided for in 22 V.S.A.§ 454. Fines range from $50 to $1,000 for each
offence.
Penalties for Unauthorized
Disclosure of Confidential Records: In some cases violation of confidentiality
mandates is punishable by fines and/or imprisonment or by limiting the use
of released records in litigation. Such penalties are scattered throughout
the statutes and agencies should make their staff aware of confidentiality
requirements, including penalties.
A few examples
of penalties
include:
Employee Drug Testing
(18 V.S.A.§ 516(c)): If information about employee drug test results is released
without authorization “it shall be inadmissible as evidence in any judicial
or quasi-judicial proceeding, except in a court of competent jurisdiction
in connection with action brought under this subchapter.”
Health Department (21 V.S.A.§ 519): Unauthorized disclosure of laboratory drug test results carry
either a civil penalty of fines not less than $500 or more than $2,000 or
a criminal penalty of a fine not less than $500 or more than $1,000 and/or
imprisonment for not more than six months.
Health Department (18 V.S.A.§ 1001): Unauthorized disclosure of any confidential public health record
is subject to a civil penalty fine of not less than $10,000 or more than $25,000,
and costs and attorney fees as determined by the court.
Human Services (33 V.S.A.
§ 7116): Unauthorized disclosure of confidential nursing home information
can result in a fine of not more than $500 and/or imprisonment for six months.
Public Safety (20 V.S.A.§
1941): Unauthorized disclosure of DNA samples shall result in imprisonment
for not more than one year and/or a fine of not more than $10,000.
See Case Law (1 V.S.A. § 320)
1 V.S.A. § 320 Penalties
(a) Whenever the court
orders the production of any public agency records, improperly withheld from
the complainant and assesses against the agency reasonable attorney fees and
other litigation costs, and the court additionally issues a written finding
that the circumstances surrounding the withholding raise questions whether
the agency personnel acted arbitrarily or capriciously with respect to the
withholding, the department of personnel if applicable to that employee, shall
promptly initiate a proceeding to determine whether disciplinary action is
warranted against the officer or employee who was primarily responsible for
the withholding. The department, after investigation and consideration of
the evidence submitted, shall submit its findings and recommendations to the
administrative authority of the agency concerned and shall send copies of
the findings and recommendations to the officer or employee or his representative.
The administrative authority shall take the corrective action that the department
recommends.
(b) In the event of noncompliance with the order of the court, the superior
court may punish for contempt the responsible employee or official, and in
the case of a uniformed service, the responsible member.
22 V.S.A. § 455. Penalties
A person who willfully destroys,
gives away, sells, discards or damages the public records referred to in section
454 of this title, without having authority so to do, shall be fined at least
$50.00 but not more than $1,000.00 for each offense.
22 V.S.A. § 454. Disposition of public
records
(a) A custodian of public records
shall not destroy, give away, sell, discard or damage any record or records
in his or her charge, unless specifically so authorized by law, without having
first submitted to the commissioner of buildings and general services a list
thereof, with accurate description.
(b) Within sixty days after receipt
of the list and description, with an application for permission to destroy,
cancel or dispose of the records, the commissioner of buildings and general
services with the prior advice of the public records advisory board shall
order the preservation, destruction, cancellation, or disposal thereof, in
whole or in part, which order shall be duly recorded by the custodian, and
shall be binding on him or her and his or her successors.
(c) Before approving a request for
the destruction of any public record, the commissioner of buildings and general
services, or the custodian of the record if the commissioner approves, may
make photographic or electronically captured copies of it and copies so made
shall have the same force and effect for all purposes as the original record.
statutes concerning the retention of original materials shall be considered
satisfied and no violation incurred when public records are officially microfilmed
or electronically captured and stored and the original material destroyed
pursuant to sections 453 and 457 of this title.
Case Law for 1 V.S.A. § 320
In Finberg v. Murnane (1992) 159 Vt. 431, 623 A.2d 979 the court found
that motive is irrelevant to the right of access as it relates to 1 V.S.A. § 320.
Note: Case law summaries
come in pertinent part from Vt. Stat. Ann.
1§ 320(West, Westlaw through 2003).
