§317. Definitions; public agency; public records and documents

Link to law: http://legislature.vermont.gov/statutes/section/01/005/00317
Published: 2015

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The Vermont Statutes Online



Title

01

:
General Provisions






Chapter

005

:
COMMON LAW; GENERAL RIGHTS






Subchapter

003
:
ACCESS TO PUBLIC RECORDS










 

§

317. Definitions; public agency; public records and documents

(a) As used in

this subchapter:

(1)

"Business day" means a day that a public agency is open to provide

services.

(2) "Public

agency" or "agency" means any agency, board, department, commission,

committee, branch, instrumentality, or authority of the State or any agency,

board, committee, department, branch, instrumentality, commission, or authority

of any political subdivision of the State.

(b) As used in

this subchapter, "public record" or "public document" means

any written or recorded information, regardless of physical form or

characteristics, which is produced or acquired in the course of public agency

business. Individual salaries and benefits of and salary schedules relating to elected

or appointed officials and employees of public agencies shall not be exempt

from public inspection and copying.

(c) The

following public records are exempt from public inspection and copying:

(1) Records

which by law are designated confidential or by a similar term.

(2) Records

which by law may only be disclosed to specifically designated persons.

(3) Records

which, if made public pursuant to this subchapter, would cause the custodian to

violate duly adopted standards of ethics or conduct for any profession

regulated by the State.

(4) Records

which, if made public pursuant to this subchapter, would cause the custodian to

violate any statutory or common law privilege 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.

(5)(A) Records

dealing with the detection and investigation of crime, but only to the extent

that the production of such records:

(i) could

reasonably be expected to interfere with enforcement proceedings;

(ii) would

deprive a person of a right to a fair trial or an impartial adjudication;

(iii) could

reasonably be expected to constitute an unwarranted invasion of personal

privacy;

(iv) could

reasonably be expected to disclose the identity of a confidential source,

including a state, local, or foreign agency or authority or any private

institution which furnished information on a confidential basis, and, in the

case of a record or information compiled by criminal law enforcement authority

in the course of a criminal investigation or by an agency conducting a lawful

national security intelligence investigation, information furnished by a

confidential source;

(v) would

disclose techniques and procedures for law enforcement investigations or prosecutions,

or would disclose guidelines for law enforcement investigations or prosecution

if such disclosure could reasonably be expected to risk circumvention of the

law;

(vi) could

reasonably be expected to endanger the life or physical safety of any individual.

(B)

Notwithstanding subdivision (A) of this subdivision (5), records relating to

management and direction of a law enforcement agency; records reflecting the

initial arrest of a person, including any ticket, citation, or complaint issued

for a traffic violation, as that term is defined in 23 V.S.A. § 2302; and

records reflecting the charge of a person shall be public.

(C) It is the

intent of the General Assembly that in construing subdivision (A) of this

subdivision (5), the courts of this State will be guided by the construction of

similar terms contained in 5 U.S.C. § 552(b)(7) (Freedom of Information Act) by

the courts of the United States.

(D) It is the

intent of the General Assembly that, consistent with the manner in which courts

have interpreted subdivision (A) of this subdivision (5), a public agency shall

not reveal information that could be used to facilitate the commission of a

crime or the identity of a private individual who is a witness to or victim of

a crime, unless withholding the identity or information would conceal

government wrongdoing. A record shall not be withheld in its entirety because

it contains identities or information that have been redacted pursuant to this

subdivision.

(6) A tax return

and related documents, correspondence and certain types of substantiating forms

which include the same type of information as in the tax return itself filed

with or maintained by the Vermont Department of Taxes or submitted by a person

to any public agency in connection with agency business.

(7) Personal

documents relating to an individual, including information in any files

maintained to hire, evaluate, promote, or discipline any employee of a public

agency, information in any files relating to personal finances, medical or

psychological facts concerning any individual or corporation; provided,

however, that all information in personnel files of an individual employee of

any public agency shall be made available to that individual employee or his or

her designated representative.

(8) Test

questions, scoring keys, and other examination instruments or data used to

administer a license, employment, or academic examination.

(9) Trade

secrets, meaning confidential business records or information, including any

formulae, plan, pattern, process, tool, mechanism, compound, procedure,

production data, or compilation of information which is not patented, which a

commercial concern makes efforts that are reasonable under the circumstances to

keep secret, and which gives its user or owner an opportunity to obtain

business advantage over competitors who do not know it or use it, except that

the disclosures required by 18 V.S.A. § 4632 are not exempt under this

subdivision.

(10) Lists of

names compiled or obtained by a public agency when disclosure would violate a

person's right to privacy or produce public or private gain; provided, however,

that this section does not apply to lists which are by law made available to

the public, or to lists of professional or occupational licensees.

(11) Student

records, including records of a home study student; provided, however, that

such records shall be made available upon request under the provisions of the

Federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g,

as may be amended.

(12) Records concerning

formulation of policy where such would constitute a clearly unwarranted

invasion of personal privacy, if disclosed.

(13) Information

pertaining to the location of real or personal property for public agency

purposes prior to public announcement of the project and information pertaining

to appraisals or purchase price of real or personal property for public

purposes prior to the formal award of contracts thereof.

(14) Records

which are relevant to litigation to which the public agency is a party of

record, provided all such matters shall be available to the public after ruled

discoverable by the court before which the litigation is pending, but in any

event upon final termination of the litigation.

(15) Records

relating specifically to negotiation of contracts including collective

bargaining agreements with public employees.

(16) Any

voluntary information provided by an individual, corporation, organization,

partnership, association, trustee, estate, or any other entity in the State of

Vermont, which has been gathered prior to the enactment of this subchapter,

shall not be considered a public document.

(17) Records of

interdepartmental and intradepartmental communications in any county, city,

town, village, town school district, incorporated school district, union school

district, consolidated water district, fire district, or any other political

subdivision of the State to the extent that they cover other than primarily

factual materials and are preliminary to any determination of policy or action or

precede the presentation of the budget at a meeting held in accordance with

section 312 of this title.

(18) Records of

the Office of Internal Investigation of the Department of Public Safety, except

as provided in 20 V.S.A. § 1923.

(19) Records

relating to the identity of library patrons or the identity of library patrons

in regard to library patron registration records and patron transaction records

in accordance with 22 V.S.A. chapter 4.

(20) Information

that would reveal the location of archeological sites and underwater historic

properties, except as provided in 22 V.S.A. § 761.

(21) Lists of

names compiled or obtained by Vermont Life magazine for the purpose of

developing and maintaining a subscription list, which list may be sold or

rented in the sole discretion of Vermont Life magazine, provided that such

discretion is exercised in furtherance of that magazine's continued financial

viability, and is exercised pursuant to specific guidelines adopted by the

editor of the magazine.

(22) Repealed.]

(23) Any data,

records, or information produced or acquired by or on behalf of faculty, staff,

employees, or students of the University of Vermont or the Vermont State

Colleges in the conduct of study, research, or creative efforts on medical,

scientific, technical, scholarly, or artistic matters, whether such activities

are sponsored alone by the institution or in conjunction with a governmental

body or private entity, until such data, records, or information are published,

disclosed in an issued patent, or publicly released by the institution or its

authorized agents. This subdivision applies to, but is not limited to, research

notes and laboratory notebooks, lecture notes, manuscripts, creative works,

correspondence, research proposals and agreements, methodologies, protocols,

and the identities of or any personally identifiable information about

participants in research. This subdivision shall not exempt records, other than

research protocols, produced or acquired by an institutional animal care and

use committee regarding the committee's compliance with State law or federal

law regarding or regulating animal care.

(24) Records of,

or internal materials prepared for, the deliberations of any public agency

acting in a judicial or quasi-judicial capacity.

(25) Passwords,

access codes, user identifications, security procedures, and similar

information the disclosure of which would threaten the safety of persons or the

security of public property.

(26) Information

and records provided to the Department of Financial Regulation by a person for

the purposes of having the Department assist that person in resolving a dispute

with any person regulated by the Department, and any information or records

provided by a person in connection with the dispute.

(27) Information

and records provided to the Department of Public Service by an individual for

the purposes of having the Department assist that individual in resolving a

dispute with a utility regulated by the Department, or by the utility or any

other person in connection with the individual's dispute.

(28) Records of,

and internal materials prepared for, independent external reviews of health

care service decisions pursuant to 8 V.S.A. § 4089f and of mental health care

service decisions pursuant to 8 V.S.A. § 4089a.

(29) The records

in the custody of the Secretary of State of a participant in the address

Confidentiality Program described in 15 V.S.A. chapter 21, subchapter 3, except

as provided in that subchapter.

(30) All

State-controlled database structures and application code, including the

vermontvacation.com website and Travel Planner application, which are known

only to certain State departments engaging in marketing activities and which

give the State an opportunity to obtain a marketing advantage over any other

state, regional, or local governmental or nonprofit quasi-governmental entity,

or private sector entity, unless any such State department engaging in

marketing activities determines that the license or other voluntary disclosure

of such materials is in the State's best interests.

(31) Records of

a registered voter's month and day of birth, motor vehicle operator's license

number, and the last four digits of the applicant's Social Security number

contained in an application to the statewide voter checklist or the statewide

voter checklist established under 17 V.S.A. § 2154.

(32) With

respect to publicly owned, managed, or leased structures, and only to the

extent that release of information contained in the record would present a

substantial likelihood of jeopardizing the safety of persons or the security of

public property, final building plans, and as-built plans, including drafts of

security systems within a facility, that depict the internal layout and

structural elements of buildings, facilities, infrastructures, systems, or

other structures owned, operated, or leased by an agency before, on, or after

the effective date of this provision; emergency evacuation, escape, or other

emergency response plans that have not been published for public use; and

vulnerability assessments, operation and security manuals, plans, and security

codes. For purposes of this subdivision, "system" shall include

electrical, heating, ventilation, air conditioning, telecommunication,

elevator, and security systems. Information made exempt by this subdivision may

be disclosed to another governmental entity if disclosure is necessary for the

receiving entity to perform its duties and responsibilities; to a licensed

architect, engineer, or contractor who is bidding on or performing work on or

related to buildings, facilities, infrastructures, systems, or other structures

owned, operated, or leased by the State. The entities or persons receiving such

information shall maintain the exempt status of the information. Such

information may also be disclosed by order of a court of competent

jurisdiction, which may impose protective conditions on the release of such

information as it deems appropriate. Nothing in this subdivision shall preclude

or limit the right of the General Assembly or its committees to examine such

information in carrying out its responsibilities or to subpoena such

information. In exercising the exemption set forth in this subdivision and

denying access to information requested, the custodian of the information shall

articulate the grounds for the denial.

(33) The account

numbers for bank, debit, charge, and credit cards held by an agency or its

employees on behalf of the agency.

(34) Affidavits

of income and assets as provided in 15 V.S.A. § 662 and Rule 4 of the Vermont

Rules for Family Proceedings.

(35) Expired.]

(36) Anti-fraud

plans and summaries submitted for the purposes of complying with 8 V.S.A. §

4750.

(37) Records

provided to the Department of Health pursuant to the Patient Safety

Surveillance and Improvement System established by 18 V.S.A. chapter 43a.

(38) Records

that include prescription information containing data that could be used to

identify a prescriber, except that the records shall be made available upon

request for medical research, consistent with and for purposes expressed in 18

V.S.A. § 4622 or 9410, 18 V.S.A. chapter 84 or 84A, and for other law

enforcement activities.

(39) Records

held by the Agency of Human Services or the Department of Financial Regulation,

which include prescription information containing patient-identifiable data,

that could be used to identify a patient.

(40) Records of

genealogy provided in an application or in support of an application for tribal

recognition pursuant to chapter 23 of this title.

(41) Documents

reviewed by the Victims Compensation Board for purposes of approving an

application for compensation pursuant to 13 V.S.A. chapter 167, except as

provided by 13 V.S.A. §§ 5358a(b) and 7043(c).

(42) Except as

otherwise provided by law, information that could be used to identify a

complainant who alleges that a public agency, a public employee or official, or

a person providing goods or services to a public agency under contract has

engaged in a violation of law, or in waste, fraud, or abuse of authority, or in

an act creating a threat to health or safety, unless the complainant consents

to disclosure of his or her identity.

(d) On or before

December 1, 2015, the Office of Legislative Council shall compile a list of all

Public Records Act exemptions found in the Vermont Statutes Annotated. In

compiling the list, the Office of Legislative Council shall consult with the

Attorney General's office. The list shall be updated no less often than every

two years, and shall be arranged by subject area, and in order by title and

section number. The list, and any updates thereto, shall be posted on the

websites of the General Assembly, the Secretary of State's Office, the Attorney

General's Office, and the State Library, and shall be sent to the Vermont

League of Cities and Towns. (Added 1975, No. 231 (Adj. Sess.), § 1; amended

1977, No. 202 (Adj. Sess.); 1979, No. 156 (Adj. Sess.), § 6; 1981, No. 227

(Adj. Sess.), § 4; 1989, No. 28, § 2; 1989, No. 136 (Adj. Sess.), § 1; 1995,

No. 46, §§ 23, 58; 1995, No. 159 (Adj. Sess.), § 2; No. 167 (Adj. Sess.), § 29;

No. 182 (Adj. Sess.), § 21, eff. May 22, 1996; No. 180 (Adj. Sess.), § 38; No.

190 (Adj. Sess.), § 1(a); 1997, No. 159 (Adj. Sess.), § 12, eff. April 29,

1998; 1999, No. 134 (Adj. Sess.), § 3, eff. Jan. 1, 2001; 2001, No. 28, § 9,

eff. May 21, 2001; 2001, No. 76 (Adj. Sess.), § 3, eff. Feb. 19, 2002; No. 78

(Adj. Sess.), § 1, eff. Apr. 3, 2002; 2003, No. 59, § 1, eff. Jan. 1, 2006;

2003, No. 63, § 29, eff. June 11, 2003; 2003, No. 107 (Adj. Sess.), § 14; 2003,

No. 146 (Adj. Sess.), § 6, eff. Jan. 1, 2005; 2003, No. 158 (Adj. Sess.), § 2;

2003, No. 159 (Adj. Sess.), § 12; 2005, No. 132 (Adj. Sess.), § 1; 2005, No.

179 (Adj. Sess.), § 3; 2005, No. 215 (Adj. Sess.), § 326; 2007, No. 80, § 18;

2007, No. 110 (Adj. Sess.), § 3; 2007, No. 129 (Adj. Sess.), § 2; 2009, No. 59,

§ 5; 2009, No. 107 (Adj. Sess.), § 5, eff. May 14, 2010; 2011, No. 59, § 3;

2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2011, No. 145 (Adj. Sess.),

§ 8, eff. May 15, 2012; 2013, No. 70, § 1; 2013, No. 129 (Adj. Sess.), § 1;

2013, No. 194 (Adj. Sess.), § 1, eff. June 17, 2014; 2015, No. 23, § 2; 2015,

No. 29, §§ 2, 3, 6, 23; 2015, No. 30, § 3, eff. May 26, 2015.)
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