A Swing and a Miss for Donovan

Attorney General TJ Donovan is clothing himself in the mantle of Taxpayer’s Protector as he tries, once again, to defend his new public records policy. He takes a nice solid swing, but misses. STEEEERIKE TWO!

As you may recall, Donovan recently issued a policy stating that any requester who takes pictures of public records (or scans or whatever) should be charged a copying fee — even though the state would not be providing any service for the fee.

In the days that followed, Democratic Secretary of State Jim Condos and Republican Gov. Phil Scott both disagreed with the new policy. Which is more than a little embarrassing for Our Guy TJ.

Apparently he was feeling the heat, as he and/or his staff took the time to write an opinion piece defending his policy. I could think of better uses for his time; writing opinion pieces is such a 20th Century move. It reaches only the rapidly shrinking population of People Who Read Opinion Pieces.

The more pertinent critique of Donovan’s op-ed is that he misses the point.

Donovan rightly identifies a problem with the public records system: It can be a significant drain on staff time. Requesting public records is an invaluable journalistic method for uncovering official misdeeds and screw-ups. But increasingly, it’s used by big law firms representing special and corporate interests to go fishing for scandal. The right-wing advocacy group Judicial Watch, for instance, puts out reams of requests for federal and state documents in hopes of uncovering — or manufacturing — controversy.

That means a lot of work. (And a huge backlog in the federal FOIA system, but that’s another story.) Donovan complains that his office is heavily burdened by public records requests.

Anyone can request to copy or inspect a record. To inspect is free. The law does allow the government to be reimbursed (after 30 minutes) for the cost of gathering, preparing, analyzing, and redacting the document in anticipation of copying.

Recently, the Vermont Supreme Court drew a line between inspecting public documents and requesting copies of them. If state workers make copies for a requester, the court ruled, their agency can charge a fee. But Donovan claims that even if requesters make the copies themselves, they should be “subject to a request of reimbursement from the government.”

Which seems, on the face of it, to be linguistic trickeration of a very lawyerly sort. It’s an end run around an inconvenient Supreme Court ruling. Donovan is seeking reimbursement for the real work of “gathering, preparing, analyzing and redacting” by imposing a charge for the nonexistent work of reproducing the documents when requesters do it themselves.

It’s funny, we haven’t heard complaints from other state agencies about the burden of public records requests. They seem to be absorbing the costs without complaint. Is the AGO particularly besieged by these requests?

It may be so. But the remedy is making that case to the legislature, not ginning up fees for doing no work.

The count is 0-and-2 on the batter. He’d best be ready for a high hard one.

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