Legislative History of Exemptions
The following historical notes pertain to a presentation about Exemptions to the Public Records Law prepared by the Vermont State Archives and Records Administration.
The definition of business day was added by Section 3 of Act 59 of 2011 (H. 73) to clarify required response times to public record requests in 1 V.S.A. §§318 and 319.
Public Agency or Agency
The public agency definition was part of Act 231 of 1976, the original public records act (H. 276). Commenting on the original bill, Attorney General Jerome Diamond found the list of public agencies “under-inclusive” in relation to the agencies already covered under the open meeting law. Further committee discussion in the senate on H. 276 touched on whether municipalities should be included. Ultimately, the senate amended the definition to exclude municipalities and other political subdivisions. Municipalities and other political subdivisions were brought back under the definition of public agency by Act 202 of 1978.
Public Record or Public Document
In Act 231 of 1976 (H. 276), the definition of a public record or document tried to enumerate various record types (staff reports, individual salaries, etc) before adding a more inclusive “or any other written or recorded matters produced or acquired in the course of agency business.” Subsequent amendments expanded the definition in attempts to cover emerging formats, such as “machine readable records.” Section 2 of Act 159 of 1996 (H. 780) added the more inclusive phrase “regardless of physical form or characteristics.” Even after Act 159, the public record definition was amended to embrace new formats. Act 158 of 2004 for example added “computer databases” to the list. Section 3 of Act 110 of 2008 (S. 229) recognized the inclusiveness of the “regardless of physical form or characteristics” language and removed references to specific formats.
The language in Exemption #1 has remained unchanged since first adopted as part of Act 231 of 1976 (H. 276), the original public records act. It formally exempts records that are identified as confidential elsewhere in the statutes. For example, the records of the proceedings of the Windsor County Youth Court are exempt from public inspection because they are designated as confidential in 12 V.S.A. § 7106.
Regarding records designated as confidential, the Vermont Supreme Court held in Norman v. Vermont Office of the Court Administrator, 176 Vt. 593 (2004) that redaction should be considered rather than complete denial of access to the records. Section 4 of Act 59 of 2011 amended 1 V.S.A. §318(e) to clarify that public agencies should redact confidential information, where possible, rather then deny access to the complete record.
The language in Exemption #2 has remained unchanged since first adopted as part of Act 231 of 1976 (H. 276), the original public records act. It formally exempts from public inspection and copying records that may only be disclosed to specific individuals or classes of individuals, as found in other statutes. The records of the Child Protection Registry outlined in 33 V.S.A. § 4919, for example, are exempt under this provision because they may only be disclosed to the limited group of individuals specified in the statute.
The language in Exemption #3 has remained unchanged since first adopted as part of Act 231 of 1976 (H. 276), the original public records act.
Exemption 4 is from Act 231 of 1976 (H. 276), the original public records act. Some communications, such as between an attorney and his or her client, are considered privileged under common law. This exemption preserves such privileges and precludes the disclosure of this type of information when it is a public record.
The original Exemption 4 language ended after “statutory or common law privilege.” Section 1 of Act 132 of 2006 (H. 615) added the phrase: “other than the common law deliberative process privilege as it applies to the general assembly and the executive branch agencies of the state of Vermont.” The legislature feared that the use of deliberative process privilege by agency and department heads created a loophole that would significantly undermine the public records act.
Among the case law and superior court decisions on Exemption 4 are 232511 Investments, Ltd. v. Town of Stowe (Vermont Supreme Court Entry Order May 9, 2005) which involved attorney-client privilege; Herald Association, Inc v. Dean, 174 Vt. 350 (2002) which involved executive privilege; Killington v. Lash, 153 Vt. 628 (1990) which involved executive privilege and attorney work-product privilege; Professional Nurses Services, Inc. v Smith, No. 732-12-04 (Washington Superior Court, July 14, 2004) involved deliberative process privilege.
Exemption 5 is from Act 231 of 1976 (H. 276), the original public records act. The language was amended by Section 3 of Act 59 of 2011 (H. 73) which expanded the exception of original arrest records to: “including any ticket, citation, or complaint issued for a traffic violation, as that term is defined in 23 V.S.A. § 2302.” This change came after questions were raised about the public's access to the records of traffic stops involving State Auditor Tom Salmon and gubernatorial candidate Peter Shumlin during their campaigns for state office in 2010.
Case law on Exemption 5 includes Caledonian-Record Publishing Co. v. Walton, 154 Vt. 15 (1990) involving arrest records; Douglas v. Windham Superior Court, 157 Vt. 34 (1991) involving licensing disciplinary records; and State v. Tallman, 148 Vt. 465 (1987) involving affidavits of probable cause.
The language in Exemption 6 has remained unchanged since Act 231 of 1976 (H. 276), the original public records act, although the original act reveals that the language was amended before passage. Certain tax information historically has been treated as exempt from disclosure. See for example Vermont's first state income tax law (Act. 17 of 1931).
Case law includes Finberg v. Murnane, 159 Vt. 431 (1992) involving lists of taxpayers and QueVt v. Town of Colchester No. 3894-7-03 (Washington County Superior Court, Nov. 5, 2003) a stipulated order involving a property tax database.
With the exception of adding gender inclusive language, Exemption 7 has remained unchanged since Act 231 of 1976 (H. 276), the original public records act, although the original act reveals that the language was amended before passage. Defining the distinctions between personal and personnel has remained a challenge.
Case law, unless otherwise noted, primarily addresses distinctions between personal and personnel records, and includes Kade v. Smith, Secretary, Agency Human Services 223-8-03 (Vermont Supreme Court Entry Order June 5, 2006); Norman v. Vermont Office of the Court Administrator, 176 Vt. 593 (2004); Sprague v. University of Vermont, 661 F. Supp. 1132 (1987); and Trombley v. Bellows Falls Union High School District 27, 160 Vt. 101 (1993).
Exemption 8 language has remained unchanged since Act 231 of 1976 (H. 276), the original public records act.
Exemption 9 was in Act 231 of 1976 (H. 276), the original public records act. It was amended by Section 5 of Act 59 of 2011 to eliminate the phrase “but not limited to” between “including” and “any formulae” on line one and by adding reference to 18 V.S.A. §4632.
Case law includes Omega Optical, Inc v. Chroma Technology Corp., 174 Vt. 10 (2002) involving unfair competition and employees’ duty of confidentiality.
Exemption 10 is from Act 231 of 1976 (H. 276), the original public records act. It was amended to add “to lists of professional or occupational licensees” by Section 4 of Act 227 of 1982 (H. 278). Testimony to the House Government Operations on March 30, 1982 by Peter Taylor of the Vermont Dental Society and Dwight Baker of the Vermont Board of Registration of Land Surveyors indicated that the lists were exempt and the regulated professions wanted access to the lists maintained by the Secretary of State so they could identify and contact members of their respective professions.
Exemption 11 is from Act 231 of 1976 (H. 276), the original public records act. It was amended by Section 14 of Act 107 of 2004 to cover home-schooled students. This exemption mirrors the Federal Family Educational Rights and Privacy Act (FERPA), which requires federally-funded educational institutions to protect from disclosure personally identifiable information found in student records.
Case law includes Caledonian-Record Pub. Co, Inc. v. Vermont State Colleges, 175 Vt. 438 (2003) involving student disciplinary records, and Sprague v. University of Vermont, 661 F. Supp. 1132 (1987).
Exemption 12 is from Act 231 of 1976 (H. 276), the original public records act. Former Attorney General Kim Cheney’s testimony to the House Committee on General and Military Affairs on February 26, 1975 suggests that this exemption originally was intended to establish an executive privilege exception to public access.
Exemption 13 is from Act 231 of 1976 (H. 276), the original public records act and has remained unchanged. The exemption is to protect the State from possible price manipulation if its interest in purchasing a property were known beforehand.
Exemption 14 has remained unchanged since its adoption as part of Act 231 of 1976 (H. 276), the original public records act. The original act however reveals that the language was amended before passage. The exemption prevents use of the public records act to circumvent access to records that had been withheld in response to a discovery request.
Case law includes Westco, Inc. v. Sorrell, 177 Vt. 287 (2004) involving public records relevant to the government’s pending case.
Exemption 15 has remained unchanged since the adoption of Act 231 of 1976 (H. 276), the original public records act. The exemption was not in the bill as introduced and was added during legislative passage of Act 231.
Exemption 16 has remained unchanged since the adoption of Act 231 of 1976 (H. 276), the original public records act. The exemption was not in the bill as introduced and was added during legislative passage of Act 231. It prevented the retroactive application of the Public Records Act.
Exemption 17 was added by Section 2 of Act 202 of 1978 (H. 350). Municipalities were not included under the definition of “public agency” in the original public records act in 1976. While the original language in H. 350 amended the definition of “public agency” in 1 V.S.A. §317(a) to include municipalities, it continued to exclude school districts from the definition. The House Committee on Municipal Corporations and Elections took testimony on H. 350 that included arguments on whether to include school districts. The committee voted to include school districts and then reported the new language to the House. The Senate, perhaps in an effort to assuage municipal concerns, added what is now Exemption 17, excluding certain municipal records from disclosure.
Exemption 18 was added by Section 6 of Act 156 of 1980 (H. 738). The exemption was added in connection with the creation of a process for conducting internal investigations within the Department of Public Safety.
It is possible to get a sense of the intent of the exemption by tracing reports documenting concerns over the Department of Public Safety’s internal controls and the need for a formal internal investigation process. The House Committee on Appropriations conducted an audit of the department in 1975 that included a recommendation for better internal controls. In 1980, a special legislative committee was created to examine the management of the Department of Public Safety; it found that the department suffered from “an impaired capacity to deal expeditiously and justly with allegations of wrongdoing.” The problems the Costello committee discovered were echoed in a 1980 investigation by the Office of Attorney General. The legislature responded by passing Act 156 of 1980 to provide for better internal controls and an internal investigation process for the Department of Public Safety.
Exemption 19 was added by Section 2 of Act 28 of 1989 (H. 137). The exemption was included in a larger piece of legislation which sought to update laws related to libraries. Exemption 19 also is an example of why relying exclusively on the exemptions enumerated in 1 V.S.A. §317 can be misleading. Act 129 of the 2008 fleshed out the protection of library patron records but that elaboration is found in 22 V.S.A. §§171-173, not in 1 V.S.A. §317.
Exemption 20 was added by Act 136 of 1990 (H. 689). As the State’s archeological program, starting in the mid-1970s, gathered information on early Native sites and the Lake Champlain Maritime Museum, created in 1985, began identifying shipwreck sites in Lake Champlain there was concern that premature public release of the information would put these sites at risk. The exception within the exemption, found in 22 V.S.A. § 762, permits the state to use the otherwise exempt information for public purposes.
Exemption 21 was added by Section 23 of Act 46 of 1995 (H. 508). The exemption was added to provide some protection to Vermont Life as competitors sought to acquire its subscription list through the Public Records Act.
Exemption 22 was added by Section 58 of Act 46 of 1995 (H. 508). The exemption was enacted as a small piece of a much larger bill related to economic development. The statute subchapters that the exemption references, found in 32 V.S.A. §5929 and 32 V.S.A §5930, were repealed by Act 94 of 2006. The exemption however remains.
Exemption 23 was added by Section 2 of Act 159 of 1996 (H. 780). This bill attempted to substantially re-write the Public Records Act. The Senate, feeling it did not have enough time to adequately review the bill, however struck all but amendments to 1 V.S.A §316 on actual cost and other provisions; to 1 V.S.A §317 relating to the definitions of public agencies and public records; and to the list of the exemptions.
In amending the definition of public agency, H. 780 added “instrumentality.” This inclusion clarified that the University of Vermont and the Vermont State Colleges, as instrumentalities of the state, were subject to the Public Records Act. That UVM was subject to the public records act had already been determined by the Vermont Supreme Court in Animal Legal Defense Fund v. Institutional Animal Care and Use Committee of UVM, 159 Vt. 133 (1992). University officials worried that being under the public records act would prematurely expose research records to release and possibly affect the University’s ability to protect work in progress, patent applications, and copyright. UVM then successfully proposed adding the Exemption 23 language to H. 780.
Exemption 24 was added by Section 2 of Act 159 of 1996 (H. 780). This bill attempted to substantially re-write the Public Records Act. The Senate, feeling it did not have enough time to adequately review the bill, however struck all but amendments to 1 V.S.A §316 on actual cost and other provisions; to 1 V.S.A §317 relating to the definitions of public agencies and public records; and to the list of the exemptions. This exemption seemingly underscores the deliberative process privilege for judicial bodies and other agencies carrying out an adjudicative function, such as those involved in administrative law.
Exemption 25 was added by Section 2 of Act 159 of 1996 (H. 780). This bill attempted to substantially re-write the Public Records Act. The Senate, feeling it did not have enough time to adequately review the bill, however struck all but amendments to 1 V.S.A §316 on actual cost and other provisions; to 1 V.S.A §317 relating to the definitions of public agencies and public records; and to the list of the exemptions. A significant portion of the deliberations on H. 780 looked at the impact of digital records on the Public Records Act and this exemption, in part, addressed one of the issues associated with the digital environment.
Exemption 26 was added by Section 29 of Act 167 of 1996 (H. 791), an act related to the enforcement of insurance regulations. The exemption seeks to ensure the confidentiality of consumer complaint records. Initially the section was erroneously listed as Exemption 23 but subsequent to passage was corrected to Exemption 26. Exemption 26 was amended by Sec. 38 of Act 180 of 1996 (S. 345) which changed the name of the Department of Banking, Insurance and Securities to the Department of Banking, Insurance, Securities and Health Care Administration.
Exemption 27 was added by Section 21 of Act 182 of 1996 (H. 792), an act which amended a number of laws related to Vermont’s utilities. This exemption seeks to ensure the confidentiality of utility consumer complaint records. Initially the exemption was erroneously listed as Exemption 23 but subsequent to passage was changed to Exemption 27.
Exemption 28 was added by Section 12 of Act 159 of 1998 (H. 163), an act which sought to improve consumer protections related to health insurance. Exemption 28 was amended by Sec 3 of Act 76 of 2002 (S. 225) to extend the exemption to include records of independent reviews of mental health care decisions.
Exemption 29 was added by Section 3 of Act 134 of 2000 (H. 807). The exemption protects from disclosure information related to people who are victims of domestic violence, sexual assault, or stalking who have registered with the Secretary of State’s address confidentiality program. The exemption was modeled after a law in Washington State. Exemption 29 was amended by Section 9 of Act 28 of 2001 (H. 476) to restrict the exemption to records in the custody of the secretary of state and to eliminate the phrase “during the period of certification.”
Exemption 30 was added by Section 1 of Act 78 of 2002 (H. 723). The exemption seeks to preserve the state’s marketing advantage by protecting from disclosure information about how certain state agencies collect and analyze data from state databases.
Exemption 32 was added by Section 29 of Act 63 of 2003 (H. 457), which was the capital construction bill. Note that Section 29 purports to add Exemption 31. Since there was already an Exemption 31, it was renumbered as Exemption 32. This exemption was offered to address security concerns for the State’s infrastructure in the aftermath of the 9/11 terrorist attacks.
Exemption 33 was added by Section 30 of Act 63 of 2003 (H. 457), which was the capital construction bill. Note that Section 30 purports to add Exemption 32. Since there was already an Exemption 32 (see history of Exemption 32), it was renumbered as Exemption 33.
Exemption 34 was added by Section 12 of Act 159 of 2004 (H. 35). Exemption 34 was actually included in two separate 2004 acts: Act 159 and Section 6 of Act 146 (H. 538). Since the exemption language in Act 159 was broader and adopted later, it is the language used for Exemption 34. The exemptions relate to income statements used to calculate child support obligations outlined in 15 V.S.A. § 662 and Vermont Court Rules for Family Proceedings.
The former Exemption 35 was added by Act 158 of 2004 (H. 547). This act added “computer databases” to the public record definition in 1 V.S.A. § 317(b) and addressed certain data in the computer assisted mass appraisal system. It reflected concerns arising from the QueVT court case that seemed to expose personal and financial information contained in a property tax database. A conference committee added a sunset provision to the bill, which took effect June 30, 2005.
Exemption 36 was added by Section 3 of Act 179 of 2006 (H. 150), a larger piece of legislation that established insurance fraud as a crime. The act mandated that insurers develop and implement anti-fraud plans and required the Department of Banking, Insurance, Securities, and Health Care Administration (BISHCA) to enforce this provision. The exemption prevents the disclosure of any anti- fraud plans obtained by BISHCA as part of its oversight function.
Exemption 37 was added by Section 326 of Act 215 of 2006 (H. 881). Included within the massive Appropriations bill for that year, the exemption pertains to information collected by the Department of Health as part of a patient safety surveillance and improvement system designed to reduce the number of medical mistakes and other adverse events in hospitals (18 V.S.A., Chapter 43a). The legislation followed enactment of the federal Patient Safety and Quality Improvement Act of 2005 which also contained exemptions to public access in order to promote the reporting of events in hospitals that affected patient safety.
Exemption 38 was added by Section 18 of Act 80 of 2007 (S. 115). The exemption was included in a larger bill intended to improve the transparency of the costs of prescription drugs. The act makes other prescriber-identifiable information confidential outside of Exemption 38. One of these provisions, found in 18 V.S.A. § 4631(d), was struck down as unconstitutional by the United States Supreme Court in Sorrell v. IMS Health, Inc., 10-779 (2011).
Exemption 39 was added by Section 18 of Act 80 of 2007 (S. 115). The exemption was included in a larger bill intended to improve the transparency of the costs of prescription drugs. While Exemption 38 applies to prescriber-identifiable information, Exemption 39 precludes the disclosure of patient-identifiable information.
Exemption 40 was added by Section 5 of Act 107 of 2010 (S.222). The exemption attempts to address certain information used for documentation for tribal recognition. A draft from March 3, 2010 (see Section 3g) and a draft from April 20, 2010 (see Section 3e) show a transition from leaving all the information open to closing all the information. A memo written by Fred Wiseman provides some insight into the closing of just the genealogical records.