Vermont Legislature SmartTranscripts:

[Chair Matthew Birong]: Thanks. We are live. Alright. Thank you, everyone. It is shortly after 1PM on January 8. We are picking up committee work, and we are gonna have a conversation with representatives from the Vermont League of Cities and Towns in and around conversations pertaining to public records requests. We're be joined by Josh Hanford. Danes, we have the shins. Thanks, Samantha. You just don't like it. Alright. We're going solo. And someone's got a little bounce around on the firearm sound. Sorry,

[Samantha Sheahan (Vermont League of Cities and Towns)]: I forgot. My mute key

[Rep. Chea Waters Evans (Ranking Member)]: broke.

[Chair Matthew Birong]: Sorry, shall I just follow-up? Yes, please.

[Samantha Sheahan (Vermont League of Cities and Towns)]: Hello, everyone. For the record, I'm Samantha Shannon, the Municipal Policy and Advocacy Specialist for the Vermont League of Cities and Towns, and I'm really happy and excited to be back with you. I've just requested to screen share. Of course, session, when we were working together on the open meeting law bill, your committee heard from a number of our municipal official members about issues more specifically related to public records law and the burdensome experience of town offices across the state in really struggling to comply with the standard of the law as it is now, specifically in situations where a requestor or a member of the public may be making very voluminous records requests, records requests that require redaction and review from attorneys as appropriate, which is both expensive and requires a significant amount of staff time, and in situations where receiving requests every day, successive requests rather than one at a time. And so we spent the summer talking to our members about it. We actually had a session at our annual event last fall that represented Hango participated in along with one of our members and the Secretary of State's office. There was really productive discussion with a lot of municipal officials who had some really good ideas about how to support compliance without really substantially changing the spirit of the law, which is to make local government and state government transparent to the public. So what we're really not bringing forward is changes to who a requester is, what a record is, what redactions are appropriate or not appropriate. We think, for the most part, those elements of the law work well and strike an important balance between protecting private information where appropriate and making information that's rightfully public available through records. That said, what we would just really like is to help town offices avoid frivolous and costly lawsuits and to help with the interaction and have a clear, friendly, easy to understand process happening between the member of the public and the town office, the custodian of records, as it's called in the law, and also provide the appropriate financial resources and time for towns to comply with the law and make the records available. So the memo we provided breaks out our recommended changes into three sections. So I'll start with the first one, which is issues related to the administration of records. Sorry, I'm going take a sip of my allowed drink.

[Chair Matthew Birong]: That was all commercial worthy. There's a lot

[Samantha Sheahan (Vermont League of Cities and Towns)]: of YouTube clips in me opening seltzers on record. Okay, so first is simple. Currently, there's three business days to respond to initial request. We recommend moving that to fourteen. Massachusetts has thirty. Very few states that we've seen have less than five. We think given the reality, the volume, and the type of records that town offices manage now in 2026. Fourteen days is appropriate, but also will provide a timely response to the requester. We also recommend that this section of the law be changed to so right now, if a requester sends a communication to a town official requesting a record so say, I email my town clerk on Sunday night, and I say, can I have the last four years of tax bills for my next door neighbor? I don't know. And then the town clerk replies to me on the fourth day. Right now, that is a denial of the record, because the three days have expired. And so that becomes an appealable denial. So what we're asking for is clarity in the law, whereby custodian of the records who receives the request may still deny the public records request as appropriate under the law. And that denial may be appealed by the requester. But we think the town should have to deliver a denial. Your request is being denied pursuant to VSA, whatever is appropriate, and that a non response is not a denial. Similarly, there's definitely a need you may have heard this from your constituents to clarify the process for appeal at the municipal level. Right now, the law says that appeals will be heard by the head of the agency. And towns don't have agencies, so it's not immediately clear who the appeal should be directed to and how the appeal should be managed at the town level. I realized today on my drive into the car this part of the memo should have also said we would need to address notwithstanding charters, because many chartered towns do clarify who hears appeals of public records, whether it's a mayor or a treasurer or city attorney, town attorney. So we won't want to scramble up a bunch of charter processes. But for those that don't have that, this can be a confusing and difficult part of the lot to comply with. And then you heard last year testimony from towns that have racked up really significant local expenses in their town budget for the management of public records that they're not able to assess through the fee to the requester. And primarily, this type of expense that happens comes from the need to use an attorney to review the material and the redaction. So there's an amount of staff time that is used in locating the records, reviewing the records, and then doing their best work to determine if any redactions apply based off of information that only the town official would know. So for an example, one of the allowable redactions is deliberative material. So say two town officials are talking back and forth about a charter change they want to bring forward that would create a new tax, And then that doesn't happen, and that discussion is not brought forward to the public or the voters or by a majority of the body, then that's deliberative material. It's allowed to be redacted. So that process happens. But these requirements to redact, these are obligations of state law. They exist everywhere, such as employment law. Municipalities have employees. Those employees have rights under privacy of certain information about themselves. And it's the town official's duty to protect that information when records are released. The people that do that work of redaction are attorneys. And municipalities that don't have staff attorneys are spending a lot of money to redact these laws, keep them legal and compliant with the law, and make the records available to the public. And if the requester chooses to inspect the record rather than receive a paper copy of it, then the town can't recuperate that cost. So what happens is some folks request a large volume of records, The town pays an attorney a lot of money to make the records available to the public. And then the requester says, oh, I'll come into town hall and look at them. And then they don't show up and look at the records. And so the fee is never collected. So these bullet points, I won't go through them, are recommendations to make that possible to assess a fee and even take a deposit if it's a significant amount of money. And make this affordable for small town governments. I'll pause there, maybe.

[Chair Matthew Birong]: Yes. I'm actually going jump in real quick before I get to you because I have one question to the deck. Is there a record of how many, I'll call them open invoices on these?

[Samantha Sheahan (Vermont League of Cities and Towns)]: We don't have a total, but I could go into my email and find. Mean, there's

[Chair Matthew Birong]: Just a curiosity for later, I'd be interested to see how much unremitted fees there When are for

[Samantha Sheahan (Vermont League of Cities and Towns)]: we talked in October ish, some members had already exceeded $100,000 I recall. And that's with their budget starting in July. As an individual? Yes.

[Chair Matthew Birong]: Okay. I think that covers my question. Yeah. Representative Martin.

[Rep. Chea Waters Evans (Ranking Member)]: When you said four days or three days, is it business days or is it days days? I'm pretty sure it's business days. It's business. Okay. And then my other question is, and we don't have to go into this right now, but it's just something I'm thinking about regarding that time period. If they don't go, a tenant is required to actually issue a denial, It doesn't go to that default denial period. What happens if they just don't respond ever and never issue that denial?

[Samantha Sheahan (Vermont League of Cities and Towns)]: In theory, what happens? Then

[Rep. Lucy Boyden (Clerk)]: I have

[Samantha Sheahan (Vermont League of Cities and Towns)]: to get back to you. Because I'm pretty sure there's another subsection that addresses non responsiveness as Yeah. Yeah, and there's a person to escalate to, but it's not an appeal. But I'm fuzzy on it, so I can follow-up. I figured there was a little more than we were

[Rep. Chea Waters Evans (Ranking Member)]: ready for right now, but I was just thinking about it. So, thanks.

[Chair Matthew Birong]: I got one more

[Samantha Sheahan (Vermont League of Cities and Towns)]: question. When

[Rep. Lucy Boyden (Clerk)]: you're talking about individuals or organizations, whoever, that don't show up after they've requested records. What about people who show up and don't actually take copies of the records, but all that time has been expended and or they take photos with their phone and leave

[Samantha Sheahan (Vermont League of Cities and Towns)]: with them. I know you're shaking your head that it's not allowed, but if no one has eyes on that person, so how do you account for the cost of that? Yeah, currently, the town cannot collect a fee for that, either of those scenarios. It's only if copies are created. Yeah, which feels like, I don't know, very 1985 to me. We got Xerox machines and mostly town halls. And that probably worked really well for a long time. And that probably was the primary cost of complying. And now that's just not the case. That's de minimis compared to the professional time that goes into generating not all requests. Some are quite simple to put together, but some are not. And they become very expensive.

[Rep. Sandra "Sandy" Pinsonault (Member)]: I have denied photos of cameras in the vaults, and if I caught them, I charged them.

[Chair Matthew Birong]: Because if

[Rep. Sandra "Sandy" Pinsonault (Member)]: it was a copy, I would say, how many pictures did you take? Oh, I took this one. I heard a quick couple of times.

[Rep. Chea Waters Evans (Ranking Member)]: And they'll come out

[Rep. Lucy Boyden (Clerk)]: and say, oh, well,

[Rep. Sandra "Sandy" Pinsonault (Member)]: I actually took four. Great.

[Chair Matthew Birong]: I thought it would be a fly on the wall for that.

[Samantha Sheahan (Vermont League of Cities and Towns)]: You may want to hear from a records clerk at a police department as well. Because they go through they more frequently deal with an inspection of records, because it's just very difficult to move video files, basically, for both the requester. It's like you need a lot of internet to move a bunch of video files. So police departments often do the inspection of records in person, where the body cam footage, redacted, whatever is requested is put up on a computer and someone can come in and watch it, and that's really great. That is also super expensive. The storage and redaction of body camera footage is very costly, and that is the easier way for the member of the public to access the information for them, depending on what type of situation they have for technology and data storage and whatever. But still, there's no fee that can be collected there. But I think I'm not the specialist in that. Most departments have a records clerk that could talk in more detail about it.

[Chair Matthew Birong]: Did you have the

[Rep. Lucy Boyden (Clerk)]: last have one last question. And it's pretty simple. I don't think there is, but there's no statute that says you cannot take a picture of the record.

[Samantha Sheahan (Vermont League of Cities and Towns)]: Not that I'm aware of.

[Rep. Sandra "Sandy" Pinsonault (Member)]: I'm not sure if there's a statute or not, but we've been trained that the photos of Flash, all that stuff is not put to the paper, and the image on

[Chair Matthew Birong]: the Makes sense.

[Rep. Sandra "Sandy" Pinsonault (Member)]: So, can

[Chair Matthew Birong]: have the editing, maintaining the integrity of the art class That's what

[Rep. Chea Waters Evans (Ranking Member)]: I can understand.

[Rep. Sandra "Sandy" Pinsonault (Member)]: It's part of our office rules. No photos.

[Samantha Sheahan (Vermont League of Cities and Towns)]: Okay, this is the fun part, I think. Josh and I, we go to this meeting every year of the folks who have our job in other parts of New England. And this year, it was in Maine, and public records was discussed. And Maine has something called vexatious request decisions. And so we are recommending that Vermont, in the future, have this thing called a vexatious request. And so what could happen, what Maine does, is that vexatious request is defined in the law. And then if the municipality has evidence that the request meets that definition, the municipality does not have to. If they want to just comply with the request, they can. Or they could request a decision from a superior court judge where they provide the evidence that the requests are vexatious. If the judge agrees and decides so, then what would happen is there would just be a relief to comply. So then the town wouldn't have to respond to the request. And so situations where this might be really useful and really help with the administration of local government and saving taxpayers money is when this has happened in Vermont, where a requester requests something really big. So say, I want every email between the select board and the clerk from the month of October. And then four hours later, they request the same thing for the month of November. And then four hours later, they request the same thing from the month of December. And then what's happening is the two municipal officials involved in this and or whoever is the custodian of the records in this situation, if it's a third person, is in this infinity loop of pulling together this records request. So if that met the definition of vexatious requests, they could go to the judge. The judge could decide and agree and order that the town doesn't have to respond. And that's it.

[Chair Matthew Birong]: Hi. Any further questions for Samantha?

[Samantha Sheahan (Vermont League of Cities and Towns)]: Is that it? Yeah, that's

[Chair Matthew Birong]: Stop sharing. I'll just say from the side of the room, sorry, the record Josh Hanford, the LCT. Some of our partner groups like Replanication and others also interested in sort of a proposal there, they're experiencing the same challenges. So

[Josh Hanford]: I hope you'll hear from others about this. As Samantha said, we're not going for the moon here. We're kind

[Chair Matthew Birong]: of trying to meet the spirit of the law, but find a way to manage it. And

[Will Clark (National Conference of State Legislatures)]: oh, I have a train of thought, but it's gone. But I'm sure we'll

[Chair Matthew Birong]: talk to

[Rep. Chea Waters Evans (Ranking Member)]: you about this.

[Chair Matthew Birong]: No. Need this. On this station, Josh. Don't worry.

[Rep. Sandra "Sandy" Pinsonault (Member)]: What happened?

[Chair Matthew Birong]: Okay. Final call for Samantha. No? Seeing your hands. We're relieved. Yeah. Yes. And, well, didn't that just immediately bump up at 01:30 for our next witness? Goodbye. Yes. Is he in it? Oh, he's up there. Right there. Boom. Look at that technology working for me. So we're moving up. Yeah. We're moving up. Correct. Yes. Alright. Welcome. Do you prefer Will or William?

[Will Clark (National Conference of State Legislatures)]: Yeah. I go by Will.

[Chair Matthew Birong]: Okay. Cool. Well, welcome to the committee, Will. I guess, have you ever joined us before on any subject matter?

[Will Clark (National Conference of State Legislatures)]: I have, think a couple of times.

[Chair Matthew Birong]: Yep. Okay. Yeah. Yeah. I thought you looked familiar. Well, good to see you again. Alright. So I know you had been in primary communication with rep Waters Evans, so welcome. But I wanted to hand off to her to let her lead the conversation with you as she has been the one primarily engaging.

[Will Clark (National Conference of State Legislatures)]: Great. Thank you.

[Rep. Chea Waters Evans (Ranking Member)]: Hello. How are you?

[Will Clark (National Conference of State Legislatures)]: Good. How are doing?

[Rep. Chea Waters Evans (Ranking Member)]: Good. Thank you for sending me that information. So you did. So we had communicated a little bit by email with some materials. And it looks like Samantha set us up pretty well for a conversation about the vexatious requests. I think what we're looking for in this context is, first of all, what people do in other states to tackle this issue. And second of all, keeping in mind, I'm a little biased in this regard, maybe, and I'll admit it because I'm a former journalist. And maintaining those public records laws and access to those records. I think not just me, but it's it's really important to all of us. And so what we're trying to do when we consider this issue is make sure that we are carefully treading that line between limiting access and also allowing people to take advantage of the system and do stuff that really burdens small towns financially and time wise and things like that. But also really making sure that, I guess, even in the case of someone who is exceedingly vexatious, which is a word I enjoy, that they are also should they make a legitimate request that is not vexatious, that they are not just being dismissed entirely because they've been overly enthusiastic with their public records request in the past. So those are just some things we've been thinking about and I know you can speak to.

[Will Clark (National Conference of State Legislatures)]: Excellent, well, have a PowerPoint presentation, if you don't mind me going through that today.

[Rep. Chea Waters Evans (Ranking Member)]: Wonderful, thank you.

[Chair Matthew Birong]: The street is yours. Perfect.

[Will Clark (National Conference of State Legislatures)]: Great. Okay. And then, oh, we are. Okay. Making sure I have sharing. Are you able to see my presentation?

[Chair Matthew Birong]: Yeah. Excellent.

[Will Clark (National Conference of State Legislatures)]: Okay, great. Well, again, starting from the beginning, thank you very much, Chair Birong and Vice Chair Hong Go and Representative Waters for having me here today. Again, my name is Will Clark from the National Conference of State Legislatures. I work in the Center for Legislative Strengthening and one of my major portfolio areas on issues that I work on is public records law. So we'll be talking to you about that today. Pleasure to be back. I'm going to kind of break my content into two sections and I'll stop in the middle, but if you have any questions please just go ahead and flag me and stop me and I can stop on a page. But I'm just going to kind of go over the different laws the states kind of more generally, so I'll pull out some examples of court cases and statutes towards the end of the presentation, but generally I'll just be kind of talking about kind of general trends and really state public records laws encompass a wide spectrum of different practices, so I'll be kind of going through those just in terms of records that are covered in states, exemptions, who can make requests, timelines and penalties for non compliance. And then the second half, I'll be focusing more on fees. I think that's really kind of the balancing point for a lot of these requests. It's really about the effort that an agency needs to go through to comply with the request versus a fair price for a requester in terms of getting records. And I'll go into fee limitations and waivers a little bit and then talk about prohibited fees and then broad, vague or unreasonable requests, again thinking about this issue as really a balance. I just want to start off just with a couple preambles to a couple open records acts from Arkansas and Rhode Island, just to kind of highlight that this isn't a partisan issue across states. Every single state has a public records law and Republican states, Democratic states, traditionally run by those parties, they have very shared interest in their public records law. Really focusing on transparency, rights to access of records, but also balancing that with very real need for privacy in some instances and also for balancing of records requests. As kind of was alluded to by the previous speaker, state records laws have changed quite a bit over time. Again, a lot of records laws when they were implemented were really about the right to inspection, so you can think of someone going into a county recorder's office, they want to inspect records, they would go to the building and then have the right to inspect that. That still happens, but a lot of requests now, because we're able to do photocopies and then now electronic information is so ubiquitous, states have really had to work over time processes to make this information available. So public records laws in each state are generally very long laws and they're very detailed and again they vary quite a bit across states. So conversely, terms of making information available, states also have to be careful to protect certain types of information, and they can be things like plans related to physical and digital security. So you can think about confidential building security plans, sensitive personal information like personnel records, and then there's a lot of information that needs to be protected according to federal law, so things like HIPAA. So again, there are generally a lot of records that are required to be requestable, but then also there are exceptions. In terms of who's covered, the laws generally are very comprehensive, so state and local governments, they might either be called out or it's implied or there have been court cases that say the records law applies very broadly, so generally the principle of these laws is that all records are public with exceptions being the distinction. So everything should be requestable except for this small group technically of things that shouldn't be, and those exceptions are really what create a lot of the contrast between states in terms of what's requestable and what's not. There's also an idea of defining what a public body is or what an agency is. The previous requester also talked about that in terms of who do these apply to or if they need to make an appeal, who does that go to? So definitions in these laws are really important and so a disclaimer here, I will be talking about court cases, I'm not an attorney and so we can't provide legal advice, but with public records law particularly those nuances and definitions are important and I'll get into some of that later. In terms of exemptions, so just like every state has a public records law, every single state has exemptions that can be very general or specific, so they might apply to an entire agency or a branch of government, so some states have exemptions for the legislative branch where they might have a specific code that applies to public records for the legislature, same thing with the judicial branch. And then for specific records, for example, with law enforcement, ongoing investigation, there might be exemptions for certain types of records depending on the requester. And all of these are guided by state constitutions and statutes and court decisions that have interpreted the implementation of these individual laws over time and it's something that's constantly evolving. As you all are deliberating these things, language and statutes is very important when these issues make it to courts, but also in filing of appeals and maybe working with ombudsman. So this language is really important. In terms of who can request, now I'll be kind of getting into some distinctions and the actual technical laws of states. Most states allow any person to request records and they don't have a distinction about who can request, although there are at least seven states that require a requester to be a citizen of the state or a resident. Timelines also vary a lot, some states don't specify a timeline for when requests need to be responded to, Others say they need to be addressed in a quote unquote timely manner, which sometimes needs to be interpreted by courts. Some states specify timeline that can vary based on the type of request, and then others have exemptions for difficult or time consuming requests. That's something that I'll be getting into as well because that really gets into these larger requests that might be burdensome. There are also varying penalties for non compliance, so some states allow for injunctive relief in court, so a requester would need to go on their own and file that. In the courts, some states don't mention any penalties for non compliance, some states have criminal and civil enforcement provisions, some have penalties related to specific types of records, so for example if there's an agency maybe that has a history of not complying or there's certain records that the legislature really wants to be more available, they might set specific penalties for that. And then there are some states that have an open records ombudsman so really this kind of functions as an entity between the appeals process with the state and then before something goes to courts there is this body that maybe a requester and an entity, a government entity can work with to maybe find some sort of resolution to a disagreement. So that's kind of like my brief overview. Are there any questions so far?

[Chair Matthew Birong]: Anyone? No, it looks so good to keep going.

[Will Clark (National Conference of State Legislatures)]: Great, I'll just jump into the next section then. So I think and as the previous speaker, you know, we spent some time on, fees are a really important part of public records loss. This really gets down to the relationship between the requester and the government entity that's required to do this work to comply with their requests. So I think for the vast majority of requests, or not maybe not the vast majority of requests, for a lot of requests, this might not be much of an issue because maybe they were just requesting a single report or a certain set of documents. It's very specific, limited. Not where the issues come up. The issues come up when there are these large requests. So but in terms of defining fees that can be set for paper or electronic formats, previously in the past, a couple of decades ago when most requests were in paper, these were a little bit easier because you could just set a per page fee in a lot of instances, so you could still bring some requests, but it was a lot clearer for the requester how much it was going to cost usually just by that per page. Now with electronic formats, I'll get into this with a court case, that gets a lot trickier because the information that people might request can be spread out across lots of different systems and also in different types of formats. You can think about databases, the work that might go into combing a database for certain types of information and then how you have to provide that information to a requester. So we're starting to get into some interesting territory now with that. Fees can also vary by the type of record, so for example, a motor vehicle accident report versus a registry of deeds. And then some states have a really clearly defined fee schedule that really outlines the different fees per item, then as I'll talk about here in a little bit, additional costs may apply if there are extraordinary expenditures of time required, and this is something that you all are looking to deliberate. I wanted to touch on fee limitations and waivers, so as Representative Waters mentioned, this is an important component in a lot of state records laws. This has been changing a little bit over time. I think there used to be a lot more exemptions for news media and some states have kind of been rolling that back and turning it into more of a focusing on public interest. And so you can see states allow some states allow required agencies to reduce or waive fees if it can be determined that it's in the public interest, but this does vary quite a bit. There might be requirements about how to apply those waivers on the request. They might also consider costs of copying and the amount of materials and making a determination, so just because a request is in the public interest, if it's going to cost thousands of dollars, maybe that's not something that an agency should have to waive the fee for. And then there are some states that cap fee waivers at a certain amount per agency per year. So maybe if the agency has had reductions in fees or waive fees up to $500 in a single year, then after that they can't do any more reductions or waiving. There's also, as I mentioned, special exemptions for news media. There have been in the past for in some states. However, like I said, this is changing and some states are starting to look at the definition of news media because I think when these exemptions were passed, maybe think about your local newspaper or the New York Times or broadcasters. But now we have blogs, we've got independent people who are working in media with TikTok, YouTube channels and a whole range of other types of people. So some states are starting to look at what is the definition of someone from the news media and then does a waiver or a reduction in a fee apply to them. And then one of the last types of distinctions I think is just waivers and reductions for requests that are considered primarily non commercial, and so this is an attempt to again try to honor the principle of transparency for the public, and again getting back to public interest, as opposed to when requests are made by commercial entities for commercial purposes.

[Rep. Chea Waters Evans (Ranking Member)]: I have a question. Could you explain a little bit to us, please? What? You mean by public interest? And do you have maybe some examples? Or, because it's a specific term that's used intentionally. So can you dive in? Don't dive all the way in, maybe just a little bit.

[Will Clark (National Conference of State Legislatures)]: Yeah, absolutely. Yeah. I could find some more specific examples for you, but it's a great point and something that I meant to highlight too is this is where it starts to get a little bit murky in public records law is you do have terms like public interest, terms like unreasonable request start to show up, and I'm going be talking about those as well. And sometimes in statutes, they are specifically defined or there's some language around how they're defined. In other states, I think when there's disagreements about what's in the public interest or not, sometimes attorney generals have stepped in to clarify, sometimes it's gone to courts. But I think there's a sort of I know it when I see it a measure to public interest in some instances, but I think sometimes it's also combined with the non commercial purpose. So for example, I think most requests generally granted for correspondence, things like that, but I think a good example might be for a newspaper report, there's a building fire and so and there was some maybe an investigation into the owner of the building and they had had previous complaints, perhaps if the newspaper became aware of that incidentally and then made a request, perhaps it could be considered in the public interest that the fee for that should be waived for the reporter for that important story, for example. So I think that's maybe one example, I'd be happy to kind of go through the statutes as well after we're done here and find you some examples.

[Rep. Chea Waters Evans (Ranking Member)]: Thank you.

[Will Clark (National Conference of State Legislatures)]: Okay, so this next part of my presentation, I'm kind getting towards the final part, and this is where getting into some of those definitions like public interest unreasonable. This is where it starts to be important. And again, this really gets to this balance between the requester and their rights, the rights of the public versus having realistic expectations for what an agency needs to do to comply with this request, the work that needs to go into it. So on one hand you have court cases, I'll get into some of them, about prohibitive and excessive fees, which anecdotally some people have claimed may be attempts to discourage people from requesting records. On the other hand, you have these burdensome unreasonable vague requests potentially that might be intentionally to halt the function of an agency or just provide unreasonable amounts of work. And so I think that's kind of where this balance is, and then how states have handled this balance, there's a real spectrum in terms of how courts have decided on certain things, and that really comes back to how statutes are written, and so I'll get into some examples of that now. So some states have laws that specifically prohibit fees in excess of direct cost of duplication, but more recently there have been questions about what is a reasonable cost for electronic transmission. I'll get into a case or two that kind of touches on that, but it starts to get into, again, definitions and statute, but also the courts deciding maybe what is reasonable and can an agency make a justification, a valid justification for maybe denial of a request because it's considered unreasonable. And then there's also kind of another option with these fees, states might be required to provide an estimate, so Vermont has this component to requesters if they if no cost of producing exceeds certain threshold, but then also might be allowed to require prepayment from requester. So, yeah, a previous speaker also talked about that. That's the kind of a way to prevent an agency from doing some sort of large request and then the requester refuses to pay or doesn't want the documents after it's been completed. So I just want to go through some examples of statutes around prohibitive fees. So Idaho, again, they have a very clear statutory language that says fee for residents may not exceed the actual cost of the agency of copying the record if another fee is not otherwise provided by law. So very clear on one part of the spectrum. In Michigan, you have a little bit more leniency, so this comes with some strong language about how a fee shall not be charged for the cost of the search, examination, review and deletion and separation of exempt from non exempt information. So this is another part of statutes where they outline certain tasks of requested entities, what they can't charge for. And so, however, sometimes they introduce caveats like with Michigan, where they say unless failure to charge a fee would result in unreasonably high cost to the public property. So that's where you again you start to get this language of what is reasonable, what's unreasonable. And then on the other kind of side of the spectrum for this particular issue, North Carolina has language that if a request is going to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, they may be able to charge a special service charge. And so there's been some contention with requesters for this language, because again getting down to that definition of how much information technology resource usage or clerical supervisor assistance is needed before it justifies the triggering of a special service charge. And so this is something that's still being resolved, I think, between requesters and entities, but so far the statute does stand. Some examples of court cases, again, non attorney, so this is not legal advice, want to provide some examples for you of how this might play out in some states. California the Supreme Court there held that a city could not charge requesters for time the city employees spent editing videos to redact exempt but otherwise producible data. Again, these decisions sometimes are very stark, but they do conform with the statutes and that's why the statutes of any state public records law are very important for your intentions and for setting kind of the playing field for records requests. In Georgia, kind of in a similar vein, just a little different, custodian of city records, the court held that custodian of city records could not charge citizen fee to cover cost of temporary employee to supervise such inspection unless the custodian could show that supervision was necessary that the fee was reasonable. So you need to get back to this sort of balance where you have what is reasonable and then states needing to provide some sort of justification or maybe some evidence. And then New Hampshire, just kind of an interesting one, this harkens back to what I was saying about the format of records now. The Supreme Court held that an applicant was entitled to Medicaid claims, which is what they were requesting in their original form. However, they also found that the agency was not required to create a new document in order to comply with the request. So this kind of gets into this nuance of not just maybe how much time it would take to do the request, but also how do you comply with the request, especially with electronic records. This is something that is an evolving issue and I think the court in this particular case also identified that this is something that states are really going to have to reckon with as data and information technology adapts and evolves over time. Getting to my last kind of three slides, talking about broad, vague or unreasonable requests. So yes, as you have heard and probably aware across states, agencies across The US have attempted to deny requests that were considered overly burdensome or broad. States might distinguish between a request for particular records versus research and analysis. I'll talk about that here in a little bit in a case, the idea behind that being that an entity might not need to comply with the request if the requester is asking the entity to do significant work to identify records that the requester might want, as opposed to the requester having a better idea of particular records or types of records. And then there are at least two states that have clear statutes about allowing refusal of unreasonable requests with sustained evidence, and I'll show an example of that here shortly. So the first example, kind of more on one side of the spectrum again, from Georgia. So in any instance in which an agency will seek costs in excess of $25 for responding to a records request, the agency needs to notify the requester within a reasonable amount of time, again that word reasonable, and then inform the requester of the estimated cost and then the agency may defer the search and retrieval of records until after the requester agrees to pay the estimated costs. So again, this is a sort of a way for agencies to maybe try to find the middle ground in order to head off some of those requests that might be vexatious. In Wisconsin, they have a statute that says a request is deemed sufficient if it's reasonably describes the requested record or the information requested. However, they have this other caveat: a request for a record without reasonable limitation as to the subject matter or length of time represented by the record does not constitute a sufficient request. Again, getting back to that word reasonable. And then in Kentucky, this is one of the two states that has this very clear language that if an application places unreasonable burden on producing public records, or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the custodian may refuse to permit inspection of the public records or mail copies thereof, but they need to have sustained, the refusal needs to be sustained by clear and convincing evidence. And then just getting to some court cases again that kind of touch on this issue, again in California, a Court of Appeal held that the finding that a request was overbroad and unduly burdensome was not supported by substantial evidence. So this is a case again where an entity made a determination that that request was overbroad and burdensome. They provided they took it to court and then they provided their evidence for that and the court found it insufficient. And District Of Columbia, kind of another perspective, again, they construed their law with a view toward expansion of public access, and so they found the court there found that neither the DC code nor any other provision of their FOIA states that a requester's failure to reasonably describe records to a FOIA officer's satisfaction will render the request void. And so in this instance, really gets back to this idea of the obligation of some entities to have more of a discussion with the requester. So if request is potentially unreasonable or unclear, at least in DC, an entity is not allowed to just dismiss the records request at hand, they need to maybe work with the requester before they do so. And then my last example is from New Jersey, so more favoring an agency. So while the Open Public Records Law Act may provide access to government records otherwise unavailable, the plaintiff's request was not a proper one for specific documents within the oprah's reach, but rather a broad based demand for research and analysis decidedly outside the statutory ambit. So this is again a court case where the court determined that agency was not responsible necessarily for research and analysis as opposed to providing records. So that's my presentation, I just wanted to share this page as well that we have. It has links to all state public records web pages, and then also some exemptions and kind of discusses the issue further. With that, happy to take any questions you all may have. And again, thank you for having me here.

[Rep. Chea Waters Evans (Ranking Member)]: Thank you so much. That was really interesting. Can you quickly explain to us, I think they're used interchangeably around here, could be wrong. It's not totally interchangeable, a public records request on a state level and a VOIRA request, correct?

[Will Clark (National Conference of State Legislatures)]: I believe it depends. With the FOIA specifically, that FOIA is federal act. Some states have a FOIA style law or open records law, but my understanding is that public records requests are generally just covered under the public records law in the state, they would be under the state's quote unquote FOIA, even if it was to a local entity. Does it answer your question?

[Rep. Chea Waters Evans (Ranking Member)]: Yes, it does. Thank you. It's just to clarify for people because it gets a little confusing sometimes. Sorry about the banging. I think someone's hanging pictures in the room next door. There's some nail hammering going on. Did anyone have any questions? Comments so. I think that we're interested in here in particular in Vermont is that and. I don't know if you can speak to this, but my town that I live in has fewer than 4,000 people. And so many public record requests of any substantial size are burdensome to the town because we don't have any money ever for things like that. And we need attorneys and it's expensive. And and so it frequently seems to overlap. I I would like to see something we're we're gonna need to do a diagram or something of like the small towns with very small budgets, and the excessive number of unreasonable requests. Those two things often seem to go hand in hand, I think, for whatever reason. But it's very different for my town, versus the biggest city in Vermont. Unreasonable might be two very different things in those regards. So do you have any information or ideas about how those two things overlap or how those laws adapt pertaining to certain circumstances like town budgets or population size? Or is it just kind of one size fits all?

[Will Clark (National Conference of State Legislatures)]: Yeah, I think generally it is is considered as kind of a one size fits all and kind of like with a lot of other issues outside of public records law, local governments can take the scale of something, the scale of an impact to a local community versus a large city or versus the state, like you said, can be disproportionate, can have a disproportionate impact. And so I think it's the same thing with unfunded regulations on local entities. That's an issue that pops up, think in a lot of states unfunded mandates. And so yeah, unfortunately, I think it is a one size fits all. But I think some states have started to kind of tackle this issue. I think in Nevada they were looking specifically at potentially having an ombudsman because I think there are around 11 to 13 states that have an ombudsman and so I think the idea of that is that before these get, they rise to litigation or further debate, then you can maybe work with an ombudsman to help resolve the issue in a neutral manner. But that's one avenue that some states have been looking at as well.

[Rep. Chea Waters Evans (Ranking Member)]: Thank you. Anyone else? Think we're good. Thank you so much. That was really helpful.

[Will Clark (National Conference of State Legislatures)]: And then if you have any other further requests about any of the information I presented today, I'm happy to follow-up.

[Chair Matthew Birong]: Thank you so much. We definitely will not be shy. All right. We're gonna So, be doing more work on this subject matter as, as the weeks progress. We seem to have been able to compress our schedule in a way where it's been more effectively delivered. So we have some time in front of

[Rep. Sandra "Sandy" Pinsonault (Member)]: us, for yes. Do want me to see

[Rep. Lucy Boyden (Clerk)]: if Rob Lipsky can come in early?

[Chair Matthew Birong]: Yeah. Sure. He can come down a little early because we're just talking to him. So we're gonna go offline now until we, speak with, representative with