Public Records Requirements in Vermont - Vermont Legislature

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Legislative Council Staff Report on

Public Records Requirements in Vermont

Pursuant to Sec. 4 of No. 132 of the Acts of the 2005 Adj. Sess. (2006)

January 2007 Legislative Council State House 115 State Street—Drawer 33 Montpelier, VT 05633-5301 (802) 828-2231 www.leg.state.vt.us

Principal author: Michael J. O’Grady, Legislative Council

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VT LEG 207892.v1

Public Records, Privacy, and Electronic Access in Vermont Legislative Council Staff Report Table of Contents Executive Summary and Staff Recommendations ..................................................................... 1 The Charge to Staff ....................................................................................................................... 5 Part I. Public Records Requirements ......................................................................................... 7 Part II. Ease of Access and Use of Public Records ..................................................................13 Part III. Management of Public Records ................................................................................. 21 Part IV. Vital Records................................................................................................................ 23 Part V. Enforcement of Public Records Requirements .......................................................... 27 Appendix A. Public Records Act Exemptions ......................................................................... 35 Appendix B. Proposed Legislation.......................................................................................... 121

VT LEG 207892.v1

VT LEG 207892.v1

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Executive Summary and Staff Recommendations A.

Executive Summary

Act 132 of the 2005 Adj. Sess. (2006) of the General Assembly required Legislative Council to study the public records law of the state of Vermont as set forth in chapter 5 of Title 1, 3 V.S.A. § 218, and the numerous exemptions to the public records requirements throughout the Vermont statutes. As part of the study, Act 132 required Legislative Council to address six issues and to propose legislation to amend, reorganize, and simplify the public records requirements of the state of Vermont. In the attached report, staff addressed the six issues and proposed legislation, but, for reasons discussed in the staff recommendations below, the proposed legislation does not include a comprehensive reorganization of the Public Records Act or current public records management in Vermont. Part I of the report provides a summary of the statutory requirements and organization of the state public records requirements. Part II of the report analyzes the ease of access and use of public records under the existing state public records requirements. Part III reviews the management and administration of public records requirements by the department of buildings and general services, other state agencies, and municipalities. Part IV summarizes current vital records management in Vermont and the pending federal regulations for the administration, issuance, and inspection of vital records. Part V summarizes the enforcement of public records requirements in the state, including the ability of an aggrieved person to appeal a decision of a public agency, and summarizes public records enforcement and appellate authority in other states. Appendix A lists each of the existing 206 exemptions to the inspection and review requirements of the public records act in statute and provides an analysis of the need and justification for each. Due to the time and resources it would require for staff to provide an analysis of the need and justification for each of the 206 exemptions in statute, staff solicited analysis and comment from state and municipal agencies that assert the various exemptions or that possess a familiarity with the substantive law that many of the exemptions address. Many agencies provided analysis or comment, and staff incorporated such analysis and comment into Appendix A. Appendix B proposes legislation to amend the public records requirements in Vermont, including a recommendation to improve use of and access to public records. The proposed legislation would establish a Public Records Advisory Office within the Office of the Secretary of State. The Public Records Advisory Office would be authorized to issue advisory opinions regarding public records disputes in the state. The proposed legislation also would clarify agency procedure for charging for staff time and would require all birth certificates issued in the state to be issued on safety paper.

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2 B.

Staff Recommendations

1.

Oversight of Records Management in the State

Currently, the responsibility for oversight of the management of public records in Vermont is divided between three state offices.1 The individuals that manage these programs are skilled, diligent, and committed to providing services to the best of their ability. However, the division in oversight and authority over records management contributes to the confusion and lack of cohesive records management policy within the state. In addition, each of the offices with records management oversight authority is understaffed and, as a result, overburdened. To improve the management of records by state agencies and municipalities in Vermont, the General Assembly should first improve and streamline the oversight of such management. Specifically, the oversight of records management should be consolidated in one office, most likely the Vermont State Archives. The majority of states now manage public records through the state office of archives. Such a consolidation of oversight would allow for efficient use of staff and a cohesive records management policy. Despite the staff recommendation to consolidate records management oversight in Vermont, the proposed legislation included in this report and required by Act 132 of the 2005 Adjourned Session (2006) does not reorganize and consolidate records management authority. The recommended consolidation was not included due to pending federal regulations regarding the issuance of birth certificates and other vital records. The pending regulations could impose significant restrictions and could significantly alter how vital records are issued in Vermont. For example, it is very possible that under the federal regulations, it would no longer be feasible for town clerks in Vermont to issue birth certificates and other vital records. If such a change were required under the federal regulations, Vermont would need to develop alternative methods or procedures for issuing vital records. One possible response would be a consolidation of records management and records oversight. The federal regulations regarding vital records were originally scheduled to be issued in August of 2006 but have been postponed until August 2007. Because these regulations could substantially impact how Vermont would or could consolidate records management in the state, staff recommends that the General Assembly postpone any significant records management reorganization until the federal regulations have been issued. This delay of one year potentially could prevent the General Assembly from engaging in unnecessary or duplicative work. Thus, the proposed legislation attached to this report does not recommend consolidation of records management oversight at this time.

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See discussion of records management requirements in Part I. The Public Records Division of the Department of Buildings and General Services stores state records and provides records training and guidance to state and municipal records management programs. The Vermont State Archives within the Office of the Secretary of State is the repository for records with continuing legal, administrative, or historic value. The State Archives also provides advice and guidance regarding the management and preservation of archival records. The department of information and innovation (DII) within the agency of administration is charged with management of electronic records. VT LEG 207892.v1

3 2.

Records Access

In previous sessions, much of the debate regarding public records revolved around access to public records and methods of recourse when public records were allegedly improperly withheld. Those seeking public records argue that under existing law, their only recourse is litigation, which many lack the wealth or resources to pursue. The legislation proposed by staff would create a Public Records Advisory Office in the office of the secretary of state. As discussed in Part V of this report, several states have similar offices intended to resolve public records disputes and eliminate the need for litigation. Generally, these offices have been successful in improving access to public records and defusing public records disputes. The Public Records Advisory Office would be authorized to issue advisory opinions regarding public records disputes. Under the legislation proposed in the final report, these opinions would not be binding on a public agency. It has been suggested by other state public records advisory commissions2 that an additional mechanism is needed to lend some import to an advisory opinion issued by a public records advisory office. At least one other state public records advisory office, specifically the New York Public Records Advisory office, has advised that an award of attorneys’ fee be mandatory when a person seeking a public record substantially prevails at trial.3 The Vermont attorney general’s office has suggested another option apart from a Public Records Advisory Office. The attorney general’s office maintains that it is required under statute to represent the interests of the public, and the creation of a Public Records Advisory Office potentially could usurp such authority. Moreover, there would be potential for conflict between legal advice offered by the attorney general’s office to a state agency and an advisory opinion issued by the Public Records Advisory office. Consequently, the attorney general recommends that a special docket be established within the superior court. The special docket could include reduced filing fees and a simplified process for pro se litigants. In addition, it would produce a judicial opinion that would be enforceable for or against a state agency.4 The Public Records Advisory Office recommended by staff in the attached draft legislation would provide the average citizen with an additional remedy that would not involve a court action. However, as currently drafted, the proposed Public Records Advisory Office is not a perfect solution. The General Assembly should consider other options such as mandatory attorneys’ fees for prevailing parties, a special docket at superior court, and other options proposed by interested parties.

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New York Committee on Open Government, Report to the Governor and State legislature: Adding Strength and Good Sense to Open Government Law 3 Id. 4 Memorandum from Bill Griffin, office of the attorney general of Vermont, to Bill Russell and Michael O’Grady, Vermont legislative council (Jan. 11, 2007). VT LEG 207892.v1

4 3.

Records Exemptions

Act 132 of the 2005 Adj. Sess. (2006) of the General Assembly requires this report to include an analysis of the need and justification for each of the existing exemptions in statute to the inspection and review requirements of the Public Records Act. In preparing this component of the report, Legislative Staff worked with the Office of the State Archives to identify the existing public records act exemptions in statute. This report identifies 206 exemptions, and it is possible that additional exemptions exist in statute. In responding to requests for comments regarding the 206 public records act exemptions, state agencies indicated that they use many of the exemptions. Specifically, 154 of the 206 exemptions were cited by at least one agency as an exemption used by or important to that agency. Although 154 of the exemptions are used or important to an agency, several of the exemptions contain ambiguities or technical flaws. In order to address such ambiguities and flaws and to address whether all 206 public records exemptions are necessary, the draft legislation attached to this report recommends the establishment of a Public Records Act Review Committee to review the numerous exemptions in statute and to recommend whether these exemptions should be repealed, modified, or left unchanged.

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5 The Charge to Staff Act 132 of the 2005 Adjourned Session (2006) of the General Assembly included a section that read as follows: Sec. 4. LEGISLATIVE COUNCIL STUDY The legislative council, in consultation with the state archivist, the public records specialists in the department of buildings and general services, the agency of administration, the division of vital records in the department of health, the Vermont league of cities and towns, the Vermont municipal clerks and treasurers association, and other interested parties, shall study the public records law of the state of Vermont as set forth in chapter 5 of Title 1, 3 V.S.A. § 218, and the numerous exemptions to the public records requirements throughout the Vermont statutes. On or before January 15, 2007, the legislative council shall report to the house and senate committees on government operations. The report shall include: (1) A summary of the statutory requirements and organization of the state public records requirements; (2) An analysis of the ease of access and use of public records under the existing state public records requirements and any recommendations to improve use of and access to public records; (3) An analysis of the need and justification for each of the existing exemptions in statute to the inspection and review requirements of the public records act; (4) A review of the management and administration of public records requirements by the department of buildings and general services, other state agencies, and municipalities; (5) A summary of the pending federal regulations for the administration, issuance, and inspection of vital records and a review of how such regulations will impact Vermont public records management and inspection; (6) A summary of the enforcement of public records requirements in the state, including the ability of an aggrieved person to appeal a decision of a public agency, and a summary of public records enforcement and appellate authority in other states; and (7) Proposed legislation to amend, reorganize, and simplify the public records requirements of the state of Vermont.

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7 Part I. Public Records Requirements Act 132 (2005 Adj. Sess.) requires this report to include “a summary of the statutory requirements and organization of the state public records requirements.” This section utilizes information prepared in previous public records reports in summarizing public records requirements and organization in Vermont.5 A.

Vermont Constitution

Vermont is one of the 14 states generally considered an “open records” state because it allows any person to inspect any record defined as a public record regardless of the identity or motive of the person inspecting the record. This policy of openness is based upon the state Constitution and provisions within it which require government accountability. Specifically, under the Vermont Constitution, all power is originally inherent in and consequently derived from the people, “therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”6 This constitutional requirement eventually led the General Assembly to enact the Public Records Act, which would require free and open examination of public records and, consequently, inspire government accountability. B.

Vermont Public Records Act

1.

Policy of Public Records Act

The policy of the Vermont Public Records Act attempts to balance the constitutional requirements for government accountability against a competing need to protect certain private or personal information. These competing interests and the perceived need of various parties to protect these interests are the source of much of the tension inherent in the current and past public records disputes in the state. An examination of the policy of the Public Records Act and its attempt to balance both interests is integral to understanding the Public Records Act and any attempt to amend it. The Public Records Act begins with the following statement of policy: It is the policy of [the Public Records Act] to provide free and open examination of records consistent with Chapter I, Article 6 of the Vermont Constitution. Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decision even though such examination may cause inconvenience or embarrassment. All people, however, have a right to privacy in their personal and economic pursuits, which ought to be protected unless specific information 5

See Vermont Secretary of Administration and State Archivist, Executive Agency Records Report Preliminary Strategic Plan (Jan. 15, 2006); Vermont Secretary of State, Office of State Archives, Vermont Public Records and the Right to Know: Is There a Requirement to Create Records?, at http://vermont-archives.org/records/right-to-know/create.html (last visited Jan. 4, 2007). See also, Vermont Secretary of State, Right to Know, at http://vermont-archives.org/records/access/index.htm (last visited Jan. 4, 2007); Vermont Secretary of State, Right to Know Database, at http://vermont-archives.org/records/access/database.index.htm (last visited Jan. 4, 2007); Vermont Secretary of State, Vermont Public Records and the Right to Know; Overview, http://vermont-archives.org/records/right-to-know/overview.html (last visited Jan. 4, 2007). 6 Vt. Const. Ch. 1, Art. 6. VT LEG 207892.v1

8 is needed to review the action of a governmental officer. Consistent with these principles, the general assembly hereby declares that certain public records shall be made available to any person as hereinafter provided. To that end, the provisions of this subchapter shall be liberally construed with the view toward carrying out the above declaration of public policy.7 This policy clearly indicates a preference for open records that should be tempered only by the need to protect an individual’s right to privacy. However, the Public Records Act does not define the scope or application of the right to privacy. Instead, the Public Records Act focuses on accountability through a general policy of open access to public records. 2.

Disclosure of Records Under the Public Records Act

The principal requirement of the Public Records Act is that any person is authorized to inspect or copy a public record or document of a public agency.8 A “public agency” is defined broadly as “any agency, board, department, commission, branch, instrumentality, or authority of the state or any political subdivision of the state.”9 This definition envelops all executive branch state agencies and all municipal government. “Public record” is also defined broadly as “all papers, documents, machine readable materials, computer databases, or any other written or recorded matters, regardless of their physical form, that are produced or acquired in the course of agency business.”10 Under this definition, any paper document, e-mail, computer database, or other digital document produced by a state agency or municipality in the course of agency business would likely qualify as a public record subject to public inspection and review. Thus, except for telephone conversations, almost all communications by agency personnel may be subject to the disclosure requirements of the Public Records Act. The 37 general exemptions to the state policy of open inspection of public records are set forth at 1 V.S.A. § 317(c).11 One of the general § 317(c) exemptions from public inspection is for records designated by law as confidential.12 The Vermont Office of State Archives has identified at least 169 public records designated by statute as confidential or otherwise exempt.13 All of the 206 general exemptions and specific exemptions “designated by law” are included in this report in Appendix A. In theory, the 206 exemptions to record inspection provide individuals, corporations, associations, and other entities with protection of their right to privacy. However, the right to 7

1 V.S.A. § 315. 1 V.S.A. § 316. 1 V.S.A. § 317(a). 10 1 V.S.A. § 317(b), as amended by Act No. 158, § 2 (2004). 11 1 V.S.A. § 317(c) includes 36 other exemptions in addition to the confidential records exemption. 12 1 V.S.A. § 317(c)(1). 13 Vermont Secretary of State, Office of Vermont State Archives, Vermont Public Records and the Right to Know: What are Examples of Specific Exemptions, at http://vermont-archives.org/records/right-to-know/exempt.html (last visited Jan. 4, 2006). See also, Vermont Secretary of State, Right to Know, at http://vermont-archives.org/records/access/index.htm (last visited Jan. 4, 2007); Vermont Secretary of State, Right to Know Database, at http://vermont-archives.org/records/access/database.index.htm (last visited Jan. 4, 2007); Vermont Secretary of State, Vermont Public Records and the Right to Know; Overview, http://vermont-archives.org/records/right-toknow/overview.html (last visited Jan. 4, 2007). 8 9

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9 privacy is not specifically framed by statute. Consequently, the right to privacy remains subject to interpretation. Moreover, the Public Records Act exemptions apply only to the information requested for disclosure. In many cases, exempt information may be redacted from the requested document, but redaction requires agency staff time and expense. In addition, Public Records Act exemptions do not apply to the use or misuse of personal information in public records subject to disclosure. In addition, there are numerous federal requirements governing access to records that are not incorporated in the Vermont Public Records Act. Usually the federal requirements address privacy and security concerns.14 For example, as discussed in Part V of this report, the federal Agency of Health and Human Services is currently developing regulations that would govern how states issue and allow review of vital records, such as birth certificates. These regulations were required under the Intelligence Reform and Terrorism Prevention Act of 2004 due to concerns that vital records could be used to secure fake identification for terrorists and others. Similarly, although town clerks are required to keep indices of certain transactions and activities and otherwise comply with the open meeting law and other specific statutory recordkeeping requirements,15 there is no duty or broad statutory requirement that requires town clerks to create public records in order to ensure government accountability. However, a municipality and any government position, department, or office of a municipality is a public agency under the definition of that term in 1 V.S.A. § 317(a). Consequently, municipalities are subject to the Public Records Act and its requirements regarding access to and inspection of public records. C.

Records Management

1.

Statutory Requirements

Although certain state agencies are required by statute to create specific public records, Vermont generally does not mandate that state or municipal agencies generate records to ensure government accountability.16 Nevertheless, state agencies are required to establish, maintain, and implement an active and continuing program for the management, preservation, and disposition of records in part to “provide citizens a means of monitoring government programs and measuring the performance of public officials.”17 In addition and as set forth in the policy section of the Public Records Act, management of public records is “essential to the administration of state and local government.”18 14

Vermont Secretary of Administration and State Archivist, Executive Agency Records Report Preliminary Strategic Plan (Jan. 15, 2006). 24 V.S.A. § 1161 (real estate transactions index); 24 V.S.A. § 1164 (index of attachments); 18 V.S.A. § 5012 (index of marriages and civil unions); 18 V.S.A. § 5013 (index of births). 16 But see, 8 V.S.A. § 11(4) requiring BISHCA to create and maintain a record of all department employees holding loans with institutions regulated by BISHCA; see also, Vermont Secretary of State, Office of State Archives, Vermont Public Records and the Right to Know: Is There a Requirement to Create Records?, at http://vermont-archives.org/records/right-to-know/create.html (last visited Sept. 28, 2004). 17 3 V.S.A. § 218. 18 3 V.S.A. § 218. The state policy on public records management is set forth in statute: (a) The general assembly finds that public records are essential to the administration of state and local government. Public records contain information which allows government programs to function, provides officials with a basis for making decisions, and ensures continuity with past operations. Public records document the legal responsibilities of government, help protect the rights of citizens, and provide citizens a means of monitoring government programs and measuring the performance of public officials. Public records provide documentation for the functioning of government and for the retrospective analysis of the development of Vermont 15

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10 Heads of state agencies are required to establish and maintain a record management program for their agencies.19 Each agency program for public records must be approved by the commissioner of buildings and general services (BGS)20 and must meet certain statutory requirements—such as establishing an inventory of all records, developing justifiable retention schedules for all records, and efficiently and economically processing and storing agency records—in order to be approved.21 An agency archival records program must also be approved by the secretary of state, but the secretary of state has no enforcement authority beyond this approval.22 In addition, BGS must approve the destruction of all public records. Specifically, a custodian of public records shall not destroy, give away, sell, or dispose of a record without first receiving approval from BGS.23 BGS authorizes disposal through its record retention schedules, which set a retention period for records common to all agencies. When a record is unique to an agency, the agency is required to seek BGS approval. 2.

Records Management Guidance

The BGS Office of the Information Specialist (OIS) provides records management advice and information to custodians of public records at the state agency and municipal level.24 The aid provided includes visiting municipal records custodians, inspecting public records vaults, providing vault design standards, and interpreting the statutory record management requirements.25 The OIS also provides training and educational materials regarding records management.26 The educational publications produced by BGS and the OIS focus on how to inventory, store, and dispose of public records, rather than on their creation or public inspection. The OIS provides records management training classes to state agencies generally once a year and meets individually with the records management officer of each agency for one-on-one instruction. The OIS also provides training to municipal clerks twice a year and one-on-one instruction when visiting municipal offices. The Vermont State Archives also provides guidance and establishes standards for the identification and management of archival records.27 The State Archives maintains several government and the impact of programs on citizens. Public records in general and archival records in particular need to be systematically managed to preserve their legal, historic, and informational value, to provide ready access to vital information, and to promote the efficient and economical operation of government. 3 V.S.A. § 218(a). 19 3 V.S.A. § 218(b). 20 Id. Each agency program for archival records must be approved by the Secretary of State. 21 Under 3 V.S.A. § 218(c), each agency department head is required to: (1) establish and maintain an accurate inventory of all records; (2) develop justifiable retention periods for all records; (3) dispose promptly of those records authorized for destruction by the department of buildings and general services of the agency of administration; (4) establish and maintain accurate records indicating the identity and quantity of all records destroyed, the savings in space and equipment, and any money savings resulting from the disposal of such records; (5) establish and maintain other records related to management of the agency's or department's records as required by the director of public records or the state archivist; (6) provide for furnishing to the division of public records and state archives, such special reports regarding the records of the agency or department as the department of buildings and general services or the secretary of state may deem necessary; (7) process, store and preserve records kept by the agency or department in an efficient and economical manner; (8) where practicable, consolidate or eliminate existing records of the agency or department and control the creation of new records; and (9) maintain the records of the agency or department in a manner that permits the prompt and orderly removal of records authorized for destruction. 22 3 V.S.A. § 218(b). 23 22 V.S.A. § 454. 24 22 V.S.A. § 453(a)(1). 25 Vermont Department of Buildings and General Services, Office of the Information Specialist, Our Mission, at http://www.bgs.state.vt.us/gsc/pubrec/infospec/index.html (last visited Sept. 28, 2004). 26 Id. 27 3 V.S.A. § 117. VT LEG 207892.v1

11 web pages and other guidance tools that are useful in understanding and identifying the various public records requirements in the state.28 Similarly, the State Archives is constructing a database that the public may use to search the various public records exemptions and requirements.29 In addition, the Vermont Department of Health regulates the issuance and recording of vital records, including the forms used by the towns when issuing certificates of birth, marriage, civil union, divorce, death, and fetal death.30 However, statute requires town clerks to use the recording method specified by BGS when recording or indexing vital records.31 3.

Enforcement of Records Management Requirements

BGS possesses little enforcement authority after an agency records program is approved. Moreover, it is difficult for BGS to determine when or if a record has been disposed of without its approval. BGS may fine a person who willfully destroys, gives away, sells, or disposes of a public record without BGS approval,32 but BGS issues few fines because of the difficulty in determining when or if a record has been improperly destroyed. The commissioner of BGS also may refuse to provide an agency with file cabinets, open shelving, or other equipment if that agency is not making sufficient effort to improve records management, but an agency with an insufficient records management program is not subject to monetary penalty for substandard records management and need not comply with BGS advice or an order. Additional enforcement authority is discussed in Part V of this report. D.

Vermont State Archives

The Vermont State Archives administers and implements an archival management program that is separate from and in addition to the state Public Records Act and records management requirements. Archival management is defined as the identification and management of archival records to assure their authenticity and accessibility from creation to ultimate disposition.33 Archives or archival records are public records that have continuing legal, administrative, or historic value.34 The Archives develops and establishes standards for creation of, preservation of, and access to archival records.35 The State Archives can also identify archival records in state agencies and take custody of archival records.36 The State Archives cooperates with heads of state agencies to establish and maintain a program for identification and preservation of archival records.37 The Vermont secretary of state, in whose office the State Archives is located, has the authority to approve or disapprove of a state agency’s archival records 28

See, Vermont Secretary of State, Right to Know, at http://vermont-archives.org/records/access/index.htm (last visited Jan. 4, 2007); Vermont Secretary of State, Vermont Public Records and the Right to Know; Overview, http://vermont-archives.org/records/right-toknow/overview.html (last visited Jan. 4, 2007). 29 Vermont Secretary of State, Right to Know Database, at http://vermont-archives.org/records/access/database.index.htm (last visited Jan. 4, 2007) 30 18 V.S.A. § 5001. 31 18 V.S.A. § 5008. 32 22 V.S.A. § 456. 33 3 V.S.A. § 117(a)(1). 34 3 V.S.A. § 117(a)(2). 35 3 V.S.A. § 117(g)(4). 36 3 V.S.A. § 117(g)(5), (6). 37 3 V.S.A. § 117(g)(3). VT LEG 207892.v1

12 management program.38 However, the State Archives has little enforcement authority beyond approval of a state agency archival records program. E.

Electronic Records

The department of information and innovation (DII) within the agency of administration is charged with management of electronic records. Specifically, 3 V.S.A. § 2222(a)(10)(a) requires DII annually to submit to the general assembly a five-year information technology plan which indicates the anticipated information technology activities of the legislative, executive, and judicial branches of state government. “Information technology activities” are defined as “the creation, collection, processing, storage, management, transmission, or conversion of electronic data, documents, or records.”

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3 V.S.A. § 218(b). VT LEG 207892.v1

13 Part II. Ease of Access and Use of Public Records Act 132 (2005 Adj. Sess.) requires this report to include “an analysis of the ease of access and use of public records under the existing state public records requirements and any recommendations to improve use of and access to public records.” As discussed with the Senate and House Committees on Government Operations during committee debate preceding passage of Act No. 132, quantifying ease of access to public records would be difficult if not impossible without years of detailed tracking and reporting. As a surrogate for such detailed analysis, this section summarizes records management data collected by the agency of administration over the past six months. In addition, Legislative Council solicited comment from the public regarding the ability of the average citizen to request and receive a public record from a state agency or local government. As approved by the Senate and House Committees on Government Operations, these comments and the anecdotal evidence they provide are included in this section as a responsiveness summary regarding ease of access. The views set forth in the responsiveness summary of this section are those of individuals who provided public comment and are not necessarily the views of Legislative Council. A.

State Agency Response to Public Records Requests

As stated above, an accurate and precise “analysis of the ease of access and use of public records” in Vermont could take years of detailed reporting and monitoring. Legislative staff lacked the time or resources for such an analysis. However, Act 132 also required the secretary of administration to submit an annual report to the General Assembly indicating the number of written public records requests received for the prior calendar year for each state agency; the number of records delivered or withheld by each state agency; the number of records that could not be located by each state agency; and the agency time needed to respond to each request. In complying with this statutory requirement, the agency of administration and the department of information and innovation created a database into which all public records requests—written, verbal, and e-mail—and responses were entered. The secretary of administration will present the full and final report of its activities and the data collected in the database in a separate and independent report. Nevertheless, some of the data collected by the agency of administration sheds light on and may ultimately be indicative of the ease of access and use of public records in Vermont. Between July 1, 2006 and December 31, 2006, the state agencies of Vermont reported receiving 1,344 written public records requests. Of those requests, 1,319 were finalized according to the requirements of the Public Records Act, 22 requests are outstanding, and three requests were withdrawn by the requesting party. These numbers indicate that 98% of all records requests to state agencies were finalized and only 2 percent remain open. Some of the 98% requests finalized by the agency were fulfilled by providing the requested records, and some were final because one of the 206 exemptions in statute applied. However, in its cursory review of the database, legislative staff identified few instances where an exemption was asserted preventing disclosure of the requested public record. In most instances, the database indicated that the requested record was disclosed. Moreover, in many instances the

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14 agency disclosed hundreds of pages of records and occasionally thousands of pages of records. The agency of administration database as reviewed by legislative staff also indicated the number of days within which each public records request was met. Although not every request was met within the statutorily established time line, most requests were met within one day and on time, and many of the requests that exceeded the statutory limit involved hundreds of pages of records or files. Such responses and response time are admirable considering the recognized fact that most agencies lack sufficient staff to respond to public records requests and considering the need for some review of certain public records in order to ensure compliance with the law and to protect the privacy interests embodied in the exemptions to the Public Records Act. Review of the agency of administration’s database results in the initial conclusion that for the vast majority of Vermonters, it is relatively easy to access public records from state agencies. However, without gathering input regarding the “ease of access” to records from every person requesting records from state agencies, such a conclusion is a superficial one. Nevertheless, the agency of administration’s database does reveal that state agencies do take public records requests seriously, do spend considerable time in meeting the requests, and do meet most of the requests in a reasonable amount of time. B.

Responsiveness Summary

In order to comply with Act 132 and to aid in the analysis of the ease of access to public records required by that act, Legislative Council solicited and received the comments regarding “ease of access and use of public records under the existing state public records requirements and any recommendations to improve use of and access to public records.” The comments received by Legislative Council are summarized and organized according to the subject matter of the comment. The name and organization of the commentator or commentators follow each comment. 1.

Agency Records Management, Process, and Response i. Agencies fail to respond at all to public records requests or refuse to disclose obviously public records upon request and in a timely manner. An individual requesting a document often must be dogged and diligent in his or her request, must make repeated requests for the same document, and must expend considerable time and expense in pursuit of the disclosure of an obviously public document. (Comments of Rep. Anne Donahue, on file with Legislative Council). ii. Responses or lack of response from agencies clearly violates the timing requirements in the Public Records Act and can create delay that frustrates the need for the record. (Comments of Laura Ziegler, on file with Legislative Council). iii. Delay is often caused or created when documents are referred to legal staff at a particular agency for review. Because records are not labeled as public or confidential

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15 from the point of their creation, the average agency employee refers most public records requests to legal staff in order to avoid disclosure of an exempt or confidential document. (Comments of Gregory Sanford, state archivist, on file with Legislative Council ). iv. Many documents referred to legal staff are obviously public records (e.g., minutes of public meetings, members of public committees, etc.) that do not require the delay or expense of legal review. (Comments of Rep. Anne Donahue, on file with Legislative Council). v. Agency response and procedure vary significantly from agency to agency. (Comments of Annette Smith, executive director of Vermonters for a Clean Environment, on file with Legislative Council). vi. Some agencies make public records readily available according to the requirements of the Public Records Act, and some agencies and municipalities make obviously public records freely available over the Internet. (Comments of Ken Hertz, on file with Legislative Council (discussing availability of municipal plans available over the internet]). vii. Many agencies do not follow the timing and process requirements of the Public Records Act, and some agencies impose additional procedural requirements unique to that agency. For example, a county sheriff refused to comply with a public records request because the request had not been made in writing. (Comments of Ross Connelly, editor and co-publisher, The Hardwick Gazette; comments of Michael Donoghue, state chairman of Project Sunshine and executive director of the Vermont Press Association, on file with Legislative Council). 2.

Agency Charges for Disclosure i. Charges for staff time vary widely from agency to agency, and the charges are often exorbitant. (Comments of Laura Ziegler, on file with Legislative Council [discussing a $81.00 staff time charge for legal time reviewing one redaction]). ii. The procedure for collection of agency charges is also inconsistent. For example, one state agency, in contrast with all others, requires a person requesting a public record to pay for staff charges prior to disclosure of the document. (Comments of Annette Smith, executive director of Vermonters for a Clean Environment, on file with Legislative Council [discussing the staff charges policy at the Agency of Commerce and Community Development]). iii. A person requesting a record often has no idea how much the agency will assess for staff charges, and there is little recourse for an individual assessed an exorbitant staff time charge because the Public Records Act does not provide for an appeal of costs assessed by an agency in response to a Public Records Act request. (Comments of Laura Ziegler, on file with Legislative Council).

VT LEG 207892.v1

16

3.

Enforcement and Penalties i. The Vermont statutes do not designate a public records enforcement authority. (Comments of Michael Donoghue, state chairman of Project Sunshine and executive director of the Vermont Press Association, on file with Legislative Council). ii. The attorney general represents state agencies, not the public interests, in Public Records Act disputes. (Comments of Michael Donoghue, state chairman of Project Sunshine and executive director of the Vermont Press Association, on file with Legislative Council ). iii. It is left to individual citizens, advocacy groups and the press to pursue litigation in order to ensure that state and local governmental agencies comply with the Public Records Act. (Comments of Allen Gilbert, executive director of the ACLU, on file with Legislative Council). iv. There are few to no penalties or other repercussions for agency failure to meet the timing, procedural, and other requirements of the Public Records Act. (Comments of Rep. Janet Ancel, on file with Legislative Council). v. There should be penalties or some other mechanism that helps ensure that public agencies comply with the requirements of the Public Records Act. (Comments of Rep. Janet Ancel and comments of the Reporters Committee for Freedom of the Press, on file with Legislative Council).

4.

Appeals i. Currently, 1 V.S.A. § 318 allows a person denied access to a record to appeal the agency determination to withhold the record to the head of the agency.39 However, this “quick and easy” initial appeal to the agency head does not work. (Comments of Anthony Iarapino, Conservation Law Foundation; comments of Rep. Janet Ancel, on file with Legislative Council). ii. In the vast majority of cases, the head of the agency simply “rubber stamps” the original agency decision. (Comments of Anthony Iarapino, Conservation Law Foundation, on file with Legislative Council). iii. A more objective quick and easy appeal route is necessary. (Comments of Rep. Janet Ancel, on file with Legislative Council). iv. One option to address or improve the appellate process for public records disputes would be a quasi-judicial panel with review authority. (Comments of Anthony Iarapino, Conservation Law Foundation, on file with Legislative Council).

39

1 V.S.A. § 318(a)(3). VT LEG 207892.v1

17

5.

Attorneys’ Fees for Substantially Prevailing Parties i. The Public Records Act should be amended to require the mandatory award of attorneys’ fees when a person substantially prevails in a lawsuit seeking disclosure of a public record. (Comments of Anthony Iarapino, Conservation Law Foundation; comments of Allen Gilbert, executive director of the ACLU; comments of the Reporters Committee for Freedom of the Press; comments of Michael Donoghue, state chairman of Project Sunshine and executive director of the Vermont Press Association; comments of Laura Ziegler; and comments of Ross Connelly, editor and co-publisher, The Hardwick Gazette, on file with Legislative Council). ii. Approximately 50 percent of the states in the country make attorneys’ fees and other costs of litigation compulsory for successful public records litigants. (Comments of the Reporters Committee for Freedom of the Press, on file with Legislative Council). iii. Currently, the Vermont Public Records Act requires citizens to pursue litigation in order to challenge an agency refusal to disclose a public record. This provides public agencies with an incentive to deny a records request because few individuals can afford the time and money of litigation. When a citizen or a group does pursue litigation, it can be very expensive and can cost thousands of dollars. (Comments of Anthony Iarapino, Conservation Law Foundation [citing $2,500.00 in attorneys’ fees] and comments of the Reporters Committee for Freedom of the Press [citing $8,000.00 in attorneys’ fees], on file with Legislative Council). iv. If attorneys’ fees are mandatory for a prevailing party, agencies will be more hesitant to withhold documents based on a speculative argument or purposeful delay. Making attorneys’ fees mandatory maximizes incentives for agencies to disclose records and, therefore, is consistent with the Public Records Act policy of free and open examination of records.40 (Comments of Anthony Iarapino, Conservation Law Foundation, on file with Legislative Council).

6.

Education i. Many of the issues surrounding the Public Records Act requests arise from agency staff or local officials who are unaware of or uneducated about the requirements of the act. For example, lack of awareness or education results in agency staff or local officials withholding clearly public records, such as committee minutes, or imposing certain requirements that the act clearly does not require, such as requiring a public records request be made in writing. (Comments of Allen Gilbert, executive director of the ACLU; see also comments of Rep. Anne Donahue, on file with Legislative Council [discussing delay in disclosure of committee minutes]; comments of Ginny McGrath, staff Attorney for Vermont Protection and Advocacy, on file with Legislative Council [discussing an assistant attorney general that requires all public records requests to be submitted in writing]; in response to the comments of Ginny

40

See 1 V.S.A. § 315. VT LEG 207892.v1

18 McGrath, the Vermont attorney general’s office responded that the assistant attorney general was helping the agency to track a large volume of records requests to comply the Act 132 reporting requirement and that an organization making multiple requests agreed to submit the requests by e-mail. Comments of Bill Griffin, Office of the Attorney General, on file with Legislative Council). ii. Lack of awareness or education regarding public records is often agency-wide, thereby leading to a culture of non-compliance. (Comments of Gregory Sanford, state archivist, on file with Legislative Council). iii. To address the lack of awareness or education at the agency level regarding public records requirements, agency staff with leadership or supervisory roles should be informed and educated regarding the requirements of the Public Records Act. (Comments of Allen Gilbert, executive director of the ACLU, on file with Legislative Council; comments of the Reporters Committee for Freedom of the Press, on file with Legislative Council; comments of Michael Donoghue, state chairman of Project Sunshine and executive director of the Vermont Press Association, on file with Legislative Council). iv. A summary of the public records law should be prepared and made available to the public. (Comments of Rep. Janet Ancel, on file with Legislative Council). 7.

Specific Exemptions i. The exemption under 1 V.S.A. § 317(b)(14) can be misinterpreted or manipulated to prevent disclosure of public records. Subsection 317(b)(14) states that records which are “relevant to litigation to which the public agency is a party of record” are confidential “provided that all such matters shall be available to the public after ruled discoverable” and “in any event upon final determination of the litigation.” However, state agencies interpret this exemption to apply to “potential” litigation, not existing, on-going litigation. This exemption should be clarified to emphasize that it only applies to litigation in which the agency is “a party of record.” (Comments of Laura Ziegler, on file with Legislative Council; comments of William E. Simendinger, Champlain Farms, on file with Legislative Council). ii. The deliberative process privilege as codified in 1 V.S.A. § 317(c)(17) for municipalities should be repealed as was the common law deliberative process privilege in Act 132 of the 2006 session. (Comments of the Reporters Committee for Freedom of the Press, on file with Legislative Council).

8.

Other Comments i. The state should require the informed consent of an individual prior to collection of personal information regarding that individual. In addition, individuals should have access to information about them maintained by a government agency. Moreover, all new legislation should include a privacy impact statement to better inform legislators

VT LEG 207892.v1

19 of the impact that the legislation will have on their constituents’ privacy rights and interests. (Comments of Allen Gilbert, executive director of the ACLU, on file with Legislative Council ).

VT LEG 207892.v1

20

VT LEG 207892.v1

21 Part III. Management of Public Records Act 132 (2005 Adj. Sess.) requires this report to include “a review of the management and administration of public records requirements by the department of buildings and general services, other state agencies, and municipalities.” This section utilizes information contained in the report Executive Agency Records Report Preliminary Strategic Plan issued by the Vermont Secretary of Administration and the State Archivist in 2006. A.

State of Current Records Management

The current state of records management in Vermont is poor. The myriad statutes governing recordkeeping are not always known by agency staff. In some cases there is demonstrated confusion over the meaning of statutes, perhaps most notably over what is an allowable charge for producing copies of public records under 1 V.S.A. § 316 and over the respective mandates of the two records programs—state archives and public records. In addition, some laws are archaic; for example, the denial of filing cabinets for not managing records under 3 V.S.A. § 219 is not meaningful in an information technology environment.41 These issues and other similar issues, ultimately undermine the policy goals for managing public records found in 3 V.S.A. § 218(a), most notably the policy that “public records in general and archival records in particular need to be systematically managed to preserve their legal, historic, and informational value, to provide ready access to vital information, and to promote the efficient and economical operation of government.”42 The lack of specific agency records management practices and informed agency-level records management staff also contributes to poor records management in the state. A review of executive branch records revealed the absence of a framework for systematically managing records and information. Myriad laws and procedures governing recordkeeping exist but there is rarely a person with authority at an agency with the knowledge and responsibility for assuring compliance. The agency staff charged with records management responsibility are usually administrative staff. Such staff do have a genuine concern about the records they maintain but often lack a broader understanding of agency or inter-agency information flows and do not have access to tools that can guide effective management practices. Where effective records management exists, it is often dependent on a single, dedicated individual, which is cause for concern in light of the looming workforce retirement bubble.43 The problems with records management in the state are exacerbated further by the growing complexity of government services, the increasing volume of information generated and received by government, and the rapidly evolving framework of state and federal requirements driven by privacy and security concerns.44 For example, due to privacy concerns, the General Assembly in 2004 enacted 1 V.S.A. § 317(c)(35), which exempts from public inspection and review Social Security numbers or other governmentally assigned personal identification numbers in mass appraisal databases, municipal grand lists, and 41

Vermont Secretary of Administration and State Archivist, Executive Agency Records Report Preliminary Strategic Plan p. 5 (Jan. 15, 2006). 42 Id. 43 Id 44 Id. VT LEG 207892.v1

22 property transfer tax returns. Under the exemption, town clerks and other records management staff must review these documents for identification numbers and redact any number that might be exempt. Moreover, the exemption in 1 V.S.A. § 317(c)(35) as originally enacted was intended to be temporary and to sunset after two years. However, the General Assembly extended the sunset twice—for one year in 2005 and for another year in 2006. Many records managers were originally unaware of the extensions and thought that the exemption had sunset. The growing dependence on information technology by state and municipal agencies is also a particular area of concern for records management in the state. Records management policy, mandates, and procedures do not keep pace with technology implementation. Moreover, there is no policy for addressing public records and information management systems when the information technology utilized by state and local agencies becomes obsolete and is subsequently replaced. In addition, the cost of maintaining and preserving electronic records is not addressed in the current state system and policy for records management.45 While the state has spent many millions of dollars on the purchase, implementation, and upgrading of information technology, little has been spent on analyzing the creation, maintenance, and management of the records within those technologies. Consequently, there are increasing costs for IT systems that do not recognize recordkeeping requirements. These costs can be from IT systems that fail in whole or in part to meet business needs to increasing litigation over access to databases, e-mail, and other electronic formats. Without addressing information, IT is just technology, and the goals of increased effectiveness in workflow and service delivery will remain difficult to achieve.46 The problems Vermont is facing are not unique and are nicely summarized in a 2004 federal report on the barriers to the effective management of government information: •

Records and information are not managed as agency business assets.



Records management is not viewed as critical to agency mission. It is either not incorporated into business processes or not incorporated early enough, particularly as those processes are automated.



Marginal support for records management has led to a lack of training, tools, and guidance for all staff within agencies.



The records management and information technology disciplines are poorly integrated within agencies.47

45 46 47

Id. Id. Id. VT LEG 207892.v1

23 Part IV. Vital Records Act 132 (2005 Adj. Sess.) requires this report to summarize the pending federal regulations for the administration, issuance, and inspection of vital records and a review of how such regulations will impact Vermont public records management and inspection. This section first summarizes the current requirements for management of vital records in the state. The section then reviews the origins of the pending federal regulations and summarizes the current status of those regulations. As described herein, the federal Department of Health has yet to issue the proposed regulations. An analysis of their impact on vital records management will be provided upon issuance of the rules. A.

Current State Vital Records Requirements

Vital records document events such as births, deaths, and marriages. 48 Vermont statute governs the issuance and recording of vital records. Vermont uses vital records to help document the health of the state, and correspondingly, the Vermont Department of Health (DH) regulates the issuance and recording of vital records. Vermont’s vital records program and requirements are similar to the requirements of other states,49 and most states manage vital records through their respective departments of health.50 Vermont’s vital records program differs from other states by requiring the documentation of divorces, fetal deaths, and the establishment and dissolution of civil unions and reciprocal beneficiary relationships.51 These additional reporting requirements increase the workload of and funding needed by the DH vital records program. 52 Moreover, the Vermont vital records program is also responsible for processing court orders for, among other purposes, name changes, corrections, and foreign-born adoptions. The DH processes an average of 75-100 court orders a month, with the number steadily growing. The DH prescribes the forms towns use when issuing certificates of birth, marriage, civil union, divorce, death, and fetal death.53 Town clerks are required to receive, number, and file certificates of births, marriages, civil unions, and deaths.54 Town clerks must also send a certified copy of such certificates to the DH.55 The DH uses the copies sent by towns to prepare annual tables of the births, deaths, marriages, and civil unions in the state.56 Town clerks who fail to transmit copies of certificates to the DH may be fined up to $100.00.57

48

Vermont Department of Health, Vermont Vital Records: An Overview, at http://healthvermont.gov/research/records/vital_records.aspx (last visited Dec. 18, 2006). 49 VitalRec.com, United States Vital Records Information, United States Map, at http://www.vitalrec.com/usmap.html (last visited Oct. 20, 2004). 50 See, e.g., Connecticut Department of Health, Vital Records Section, at http://www.dph.state.ct.us/OPPE/hpvital.htm (last visited Oct. 20, 2004). Some states manage vital records through the office of the secretary of state. See, e.g., New Hampshire Department of State, Division of Vital Records Administration, Vital Records, at http://www.sos.nh.gov/vitalrecords/index.html. 51 Id.; see also 18 V.S.A. § 5004 (divorces); 18 V.S.A. § 5008 (preservation of data); 18 V.S.A. § 5160 (civil unions); 18 V.S.A. 5222 (fetal deaths). 52 For example, the Department of Health receives approximately 1,500 to 1,600 reports of abortions annually. 53 18 V.S.A. § 5001. 54 18 V.S.A. § 5007. 55 10 V.S.A. § 5010; see also Vermont Department of Health, Vermont Vital Records: An Overview, at http://healthvermont.gov/research/records/vital_records.aspx (last visited Dec. 18, 2006). 56 18 V.S.A. § 5002. 57 10 V.S.A. § 5011. VT LEG 207892.v1

24 Town clerks are also required to prepare general indices to the marriage, civil union, birth, and death records recorded in the town.58 As an open records state, Vermont currently does not require a person requesting a vital record to produce proof of identity or to show a need for the vital record. Thus, any person can request and receive the vital record of another person. The Vermont General Assembly criminalized the improper use of personal identifying information in Act No. 155 of the 2004 session,59 but Act 155 exempts town clerks from the requirement that Social Security numbers be redacted from a document before posting in a place of general public circulation, including the Internet.60 Although clerks do not have to redact Social Security numbers, misuse of those numbers is still prohibited by Act 155. Moreover, although the Vermont DH recommends that towns use safety paper when issuing vital records, safety paper is not required. Safety paper is a unique paper with multiple antifraud and counterfeiting features that help prevent the misuse of public and vital records. Because the Vermont DH does not require safety paper, many towns do not use it because they believe it is too expensive or the recordkeeping requirements accompanying it are too time-consuming.61 B.

Pending Federal Regulation of Vital Records

1.

Intelligence Reform and Terrorism Prevention Act of 2004

The Intelligence Reform and Terrorism Prevention Act of 2004 directed the secretary of health and human services to establish by rule within one year of enactment minimum standards for birth certificates used by federal agencies.62 The standards shall require certification of a birth certificate by a state, use of safety paper or other secure measure, and other features to prevent tampering with or otherwise duplicating the certificate.63 The standards shall also establish requirements for proof and verification of identity as a condition of issuance of a birth certificate, with additional security measures for the issuance of a birth certificate for a person who is not an applicant.64 The Intelligence Reform and Terrorism Prevention Act further required standards for the processing of birth certificate applications to prevent fraud.65 Within two years of issuance of the rule by the U.S. Department of Health and Human Services, no federal agency shall accept a birth certificate for any official purpose unless it conforms to the minimum federal standards.66 Under the act, grants are supposed to be available to states from the secretary of health and human services to assist in conforming with the federal standards.67

58

10 V.S.A. § 5012 (marriage and civil union index); 10 V.S.A. § 5013 (birth and death index). Act No. 155 § 4 (2004). 60 Act 155, § 3 (Adj. Sess.). 61 Vermont Department of Health Survey of Why Town Clerks Do Not Use Engraved Paper (on file with department staff). 62 Id. at § 7211. 63 Id. 64 Id. 65 Id. 66 Id. 67 Id. 59

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25 2.

Status of Pending U.S. Department of Health Vital Regulations

The U.S. Department of Health and Human Services assigned rulemaking for the federal vital records regulations to the Centers for Disease Control and Prevention and its National Center for Health Statistics. Originally, the rules were to be issued in August 2006.68 In September 2006, issuance of draft rules was postponed until December 2006.69 In December 2006, the rules were again postponed.70 In the “best estimate” of the Centers for Disease Control and Prevention, a draft of the rules will be issued in August 2007.71 C.

Vital Records Management in Other States and its Impact on Vermont

As a precursor to the federal regulations of vital records, states that previously maintained open records policies for vital records are moving to close or limit access to vital records. For example, in the past year, New Jersey and South Dakota closed their public records. Similarly, several of the remaining twelve open records states are contemplating adoption of “limitations” on access to public records. This trend toward closing records could impact Vermont if Vermont remains an open records state. At least two states, Colorado and Alabama, will only accept state-certified birth certificates. The vast majority of birth certificates in Vermont are issued by town clerks and are not state-certified. Consequently, individuals born in Vermont may not be able to access government services in Colorado or Alabama when a birth certificate is required. The Vermont Department of Motor Vehicles attempted to persuade Colorado to accept locally issued Vermont birth certificates, but Colorado refused. Consequently, town clerks in Vermont have been instructed to refer all requests from a Colorado resident for a birth certificate to the Vermont Department of Health. In addition, certified copies of a birth certificate issued in Vermont may not be sufficient. Such certified copies from Vermont have been rejected in other states or by federal agencies, thereby complicating the ability of individuals to obtain driver’s licenses and passports and to apply for jobs. Certified copies of Vermont’s birth certificates are also being rejected because they were not issued on security paper, which is required in many other states in the nation. As the number of open records states decreases, persons who engage in identity theft and fraudulent activity utilizing birth and death certificates will shift their activities to the few remaining open records states that have no limitations on access or additional security measures. Vermont is one of those few remaining states. Thus, although it might be prudent for Vermont to wait for the issuance of the federal regulations before it amends management requirements for state vital records, it may be necessary to adopt safety measures or limits on access before issuance of the federal rules. 68

E-mail from Richard McCoy, Vermont Department of Health, to Michael O’Grady, Legislative Council (Sept. 12, 2006) (on file with Legislative Council). 69 Id. 70 E-mail from Richard McCoy, Vermont Department of Health, to Michael O’Grady, Legislative Council (Dec. 13, 2006) (on file with Legislative Council). 71 Id. VT LEG 207892.v1

26

VT LEG 207892.v1

27

Part V. Enforcement of Public Records Requirements Act 132 (2005 Adj. Sess.) requires this report to provide a summary of the enforcement of public records requirements in the state, including the ability of an aggrieved person to appeal a decision of a public agency, and a summary of public records enforcement and appellate authority in other states. Accordingly, this section summarizes how the Public Records Act is enforced in Vermont and reviews enforcement of public records requirements in other states. A.

Vermont

State and local government agencies in Vermont must manage the creation and retention of public records to ensure their availability to the public. 72 State agency heads are required by statute to establish and maintain a records management program for their agencies.73 Each agency program for public records must be approved by the commissioner of buildings and general services (BGS).74 For an agency records program to be approved by the commissioner, the head of each agency must meet certain statutory requirements such as establishing an inventory of all records, developing justifiable retention records for all records, and efficiently and economically processing and storing agency records.75 An agency archival records program must also be approved by the secretary of state, but the secretary of state has no enforcement authority beyond this approval.76 In addition, a custodian of public records shall not destroy, give away, sell, or dispose of a record without first receiving approval from BGS.77 BGS authorizes disposal through its record retention schedules, which set a retention period for records common to all agencies. When a record is unique to an agency, the agency is required to seek BGS approval. However, the statutes provide little enforcement authority after an agency records program is approved, and it is difficult for BGS to determine when or if a record has been disposed of without its approval. BGS may fine a person who willfully destroys, gives away, sells, or disposes of a public record without BGS approval,78 but BGS issues few fines because of the difficulty in determining when or if a record has been improperly destroyed. The commissioner of BGS also may refuse to provide an agency with file cabinets, open shelving, or other equipment if that agency is not making a sufficient effort to improve records management, but in contrast to individual records custodians, the agency is not subject to

72

3 V.S.A. § 218(a). 3 V.S.A. § 218(b). Id. Each agency program for archival records must be approved by the Secretary of State. 75 Each agency department head is required to: (1) establish and maintain an accurate inventory of all records; (2) develop justifiable retention periods for all records; (3) dispose promptly of those records authorized for destruction by the department of buildings and general services of the agency of administration; (4) establish and maintain accurate records indicating the identity and quantity of all records destroyed, the savings in space and equipment, and any money savings resulting from the disposal of such records; (5) establish and maintain other records related to management of the agency's or department's records as required by the director of public records or the state archivist; (6) provide for furnishing to the division of public records and state archives, such special reports regarding the records of the agency or department as the department of buildings and general services or the secretary of state may deem necessary; (7) process, store and preserve records kept by the agency or department in an efficient and economical manner; (8) where practicable, consolidate or eliminate existing records of the agency or department and control the creation of new records; and (9) maintain the records of the agency or department in a manner that permits the prompt and orderly removal of records authorized for destruction. 3 V.S.A. § 218(c). 76 3 V.S.A. § 218(b). 77 22 V.S.A. § 454. 78 22 V.S.A. § 456. 73 74

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28 monetary penalty for substandard records management and need not comply with the BGS advice or order. When a public agency determines that a requested record is not public, it must certify this decision in writing and provide an explanation stating the reasons for denial. The written denial shall include a notice of the requesting party’s right to appeal the decision to the head of the relevant agency. The head of the agency shall make a determination within five days, excluding Saturdays, Sundays, and legal public holidays, after receipt of the appeal. If the head of the agency upholds the initial agency decision, the agency shall notify the requesting party of the decision and the right to appeal that decision to the superior court under 1 V.S.A. § 319.79 Under 1 V.S.A. § 319, any person aggrieved by the denial of a request for public records may apply to the superior court in one of the following places: the county in which the complainant resides, the county in which the complainant has his or her personal place of business, the county in which the public records are situated, or the superior court of Washington County. The relevant superior court may enjoin the public agency from withholding the record and may order production of any agency records improperly withheld. The burden is on the agency to sustain that the records should be withheld, and the court has the ability to review the record in camera to determine if it should be withheld. In addition, except for cases that the superior court believes are more important, public records appeals take precedence on the docket over all other cases and shall be assigned for hearing and trial or argument at the earliest practicable date and shall be expedited in every way. The court may also assess against the public agency reasonable attorneys’ fees and other litigation costs in any cases in which the complainant has substantially prevailed.80 However, the reward of fees and costs is not mandatory and is generally left to the discretion of the court. The Vermont attorney general’s office has not pursued enforcement actions against state agencies. The attorney general’s office provides such agencies with advice regarding public records disputes, and the state agencies generally accept that advice. The attorney general’s office has pursued enforcement actions against municipalities in the past for violations of the state Open Meeting Law, but not for violations of the state Public Records Act.81 Consequently, enforcement of the Public Records Act is left to those injured by its violation, such as individuals, news organizations, and others. It would be extremely difficult to quantify the number of public records actions brought before the state’s superior courts because such actions and the decisions issued by those courts are not catalogued for review. However, cases from the superior court are appealed to the Vermont Supreme Court, and a simple Westlaw search of Vermont Supreme Court decisions indicates that there have been 28 public records actions decided by the Court since 1978.82

79

1 V.S.A. § 318. 1 V.S.A. § 319. See also Burlington Free Press v. University of Vermont, 172 Vt. 303 (2001). In determining whether a complainant is entitled to attorneys fees, the following factors should be considered among the relevant factors: (1) the public benefit derived by the lawsuit; (2) the commercial benefit the requesting party will receive from release of the requested documents; (3) the nature of the requesting party’s interest in the documents; and (4) whether the public agency had a reasonable basis for withholding the documents. 81 E-mail from William Griffin, chief assistant attorney general, Vermont Office of the Attorney General (Sept. 4, 2006). 82 See document on file with Legislative Council. 80

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29 B.

Public Records Enforcement in Other States

1.

New Hampshire

Enforcement of the public records requirements in New Hampshire is similar to enforcement in Vermont, albeit with several key differences. As in Vermont, any person aggrieved by a violation of the New Hampshire’s public records requirements may petition the superior court for injunctive relief. Courts reviewing public records complaints are required to give such proceedings priority and may expedite proceedings where “time is of the essence.”83 New Hampshire requires a public agency that withholds a public record to pay the attorneys’ fees incurred in a lawsuit by a person “reasonably requesting” the records when the court finds that such lawsuit was necessary in order to make the information available.84 However, fees shall not be awarded unless the court finds that the body, agency or person knew or should have known that the conduct engaged in was a violation of the public records requirements or where the parties, by agreement, provide that no such fees shall be paid.85 If a court determines that an officer or employee of an agency acted in bad faith in withholding the requested record, the court may award fees personally against that individual.86 Conversely, a court may award attorneys’ fees to a public agency involved in a public records lawsuit if the court determines that the lawsuit is in bad faith, frivolous, unjust, vexatious, wanton, or oppressive.87 The court may also issue an order enjoining future violations of the public records requirements.88 In addition, a person who knowingly destroys any information with the purpose of preventing that information from being disclosed or inspected in response to a public records request is guilty of a misdemeanor.89 In practice, there is very little enforcement of the public records requirements in New Hampshire by state government. The New Hampshire Division of Archives and Records Management attempts to educate state agencies regarding compliance with the records requirements in the state, and when an agency violates these requirements, the division attempts to work with the agency and persuade it to comply. However, the Division of Archives and Records Management is rarely consulted regarding public records disputes, and the New Hampshire Office of the Attorney General does not pursue actions against state agencies in violation of the state’s public records requirements. Consequently, there are relatively few public records cases appealed to the New Hampshire superior courts each year.90

83

N.H.R.S. § 91-A:7. N.H.R.S. § 91-A:8. 85 Id. 86 Id. 87 Id. 88 Id. 89 N.H.R.S. § 91-A:9. 90 Telephone interview with Brian Nelson Burford, state records manager, New Hampshire Division of Archives and Records Management (Sept. 25, 2006). 84

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30 2.

Maine

Public records enforcement in Maine is also similar to enforcement in Vermont. A public agency refusing to grant a public records request must state in writing the reason for denial. A person aggrieved by the denial of a public records request for inspection may appeal to a state superior court within five days of receipt of the agency’s written statement of denial. If a court determines that denial was not just, it shall order disclosure.91 In addition, a state agency or local governmental agency that willfully violates the Maine public records requirements shall be liable for a civil violation of not more than $500.00.92 The Maine attorney general normally does not bring enforcement actions against state or local agencies that violate the public records requirements of the state. Consequently, as in Vermont, the responsibility for enforcing the public records requirements in Maine falls to individuals requesting public records. The attorney general does inform state agencies that they need to comply with public records requirements and provides agencies with advice on compliance. The state also recently began to investigate records management practices by state agencies as a first step toward reforming the public records requirements of the state. The Maine State Archives provides local and municipal agencies with educational material and seminars regarding recordkeeping compliance. The archives also recently began to issue advisory pamphlets regarding whether specific documents are public records that should be disclosed when requested.93 In addition, a non-governmental organization in Maine, the Freedom of Information Coalition, makes numerous public records requests of state and local agencies in order to gauge agency compliance. When an agency violates the state’s public records requirements, the coalition issues a press release detailing the violation. These press releases have embarrassed several state and local agencies into improving compliance with the state’s public records requirements. 3.

Massachusetts

In Massachusetts, as in Vermont, whoever is entitled to the custody of public records may appeal to the state superior court if a public records request is denied. The court may order a person or agency unlawfully withholding the record to disclose the record if the state’s public records statutes so require.94 Any public officer who refuses to disclose a public record as required by law is subject to a fine of not more than $20.00 for each month of refusal to disclose.95 Unlike Vermont, Massachusetts maintains a Public Records Division within its Office of the Secretary of the Commonwealth. The Massachusetts Public Records Division has several statutory duties, including the archiving and preservation of records and review of

91

1 M.R.S.A. § 409. 1 M.R.S.A. § 410. 93 Telephone interview with Jim Henderson, Maine State Archivist (Sept. 26, 2006). 94 66 Mass. Gen. Laws. § 1. 95 66 Mass. Gen. Laws § 15, §17. 92

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31 state and local public records determinations.96 The Massachusetts Public Records Division also enacted rules regarding state agency procedure for response to a public records request and for appeal to the division of a denial of a request. Under the Public Records Division rules, a state or local agency denying a public records request must provide the requesting party a written explanation of the reason for denial within 10 days of the request. The written explanation must also include an explanation of the requesting party’s right to appeal the decision of the agency to the Public Records Division. Such appeal must be made in writing within 90 days of the agency denial of access. It is solely within the discretion of the Public Records Division to accept or decline an appeal when the public records in question are the subject of disputes in active litigation, administrative hearings, or mediation. Similarly, the division may decline to accept an appeal if, in the opinion of the supervisor of the Public Records Division, the request is designed or intended to harass, intimidate, or assist in the commission of a crime. Likewise, an appeal may be declined if, in the opinion of the supervisor, the public records request is made solely for a commercial purpose.97 When the Public Records Division accepts an appeal, the division shall, within a reasonable time, investigate the circumstances giving rise to an appeal and render a written decision to the parties stating therein the reason or reasons for such decision. In all appeals to the division, there is a presumption that the record sought is public. The Public Records Division may also conduct administrative hearings and in camera inspection and review of records during the appeal process.98 In practice, before initiating formal hearings and reviews, the Public Records Division attempts to resolve appeals through mediation and negotiation.99 Prior to 2004, the division accepted approximately 800 to 900 public records disputes a year.100 Many of these disputes were filed by commercial entities, correctional inmates, and persons involved in litigation regarding a public records request.101 To reduce its work load and to allow it to focus on legitimate disputes, the Public Records Division adopted rules in 2004 that provided it with the discretion to deny certain disputes.102 Under the new rules, the Public Records Division is authorized to deny, among others, disputes filed by commercial entities and persons involved in public records litigation.103 Consequently, after adoption of the rules, the Public Records Division accepts on average 300 to 400 disputes a year.104 The Public Records Division is staffed by four attorneys to whom are referred appeals and who attempt to mediate disputes. Generally, the disputes are resolved within one month of the division’s accepting the appeal.105 The division lacks any enforcement authority of its own. If a dispute cannot be resolved or an agency refuses to comply with the decision of the 96

66 Mass. Gen. Laws § 10. Code of Mass. Regs. § 32.08. 98 Id. 99 Telephone interview with Rebecca Murray, staff attorney, Massachusetts Public Records Division (Sept. 8, 2006). 100 Telephone interview with Allan Cody, Supervisor of Records for the Commonwealth of Massachusetts (Dec. 29, 2006). 101 Id. 102 Id. 103 Id. 104 Id. 105 Telephone interview with Rebecca Murray, staff attorney, Massachusetts Public Records Division (Sept. 8, 2006). 97

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32 division, the division can refer the dispute to the attorney general.106 The Massachusetts attorney general is under no duty to pursue such referrals. 4.

Connecticut

Enforcement of public records requirements in Connecticut is the responsibility of an independent, 30-year old state agency called the Freedom of Information Commission. The Freedom of Information Commission consists of five members appointed by the Governor, with the advice and consent of either house of the General Assembly, who serve four year terms and no more than three of whom shall be members of the same political party.107 The Freedom of Information Commission reviews all alleged violations of the state Freedom of Information Act (FOIA). Any person denied the right to inspect or copy records may appeal the denial by filing a notice of appeal with the Freedom of Information Commission within 30 days of the denial. The commission shall hear and decide the appeal within one year after the filing of the notice of appeal.108 The commission acts as a court and has the power to investigate all alleged state FOIA violations and may administer oaths, examine witnesses, receive oral and documentary evidence, subpoena witnesses, and require the production of papers which the commission deems relevant in any matter under investigation or in question. The commission may endorse the agency withholding or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any state FOIA right. Decisions of the Freedom of Information Commission have the force of law. Any party aggrieved by a decision of the commission may appeal to the superior court. The commission shall have standing to defend, prosecute, or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. Upon a finding that a denial of a FOIA right was without reasonable grounds, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than $20.00 nor more than $1,000.00. If the commission finds that a person has filed an appeal frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, the commission may, in its discretion, impose against that person a civil penalty of not less than $20.00 nor more than $1,000.00. Any person who willfully, knowingly, and intentionally destroys, mutilates, alters or disposes of a public record without the approval shall be guilty of a class A misdemeanor.109 Any member of any public agency who fails to comply with an order of the

106

66 Mass. Gen. Laws § 10. Conn. Gen Stat. § 1-205. See also, ? The commission may, upon motion of such agency, confirm the action of the agency and dismiss the appeal without a hearing if it finds, after examining the notice of appeal and construing all allegations most favorably to the appellant, that (A) the agency has not violated the Freedom of Information Act, or (B) the agency has committed a technical violation of the Freedom of Information Act that constitutes a harmless error that does not infringe on the appellant's rights under said act. 109 Conn. Gen. Stat. § 1-240. 107 108

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33 Freedom of Information Commission shall be guilty of a class B misdemeanor, which is punishable by up to six months in prison and up to a $1,000 fine.110 The Connecticut Freedom of Information Commission is staffed by 20 people, 10 of whom are attorneys.111 The commission receives 600 complaints a year. If a state or local agency agrees, the commission will attempt to initiate mediation regarding a complaint, rather than conducting a formal investigatory hearing.112 Generally, it takes the Connecticut Freedom of Information Commission several months to address a complaint, with the fastest response time being eight weeks in the best of circumstances.113 Approximately 20 of the 600 complaints that it receives each year are appealed to the superior court. 114 5.

New York

Enforcement of public records requirements in New York is somewhat similar to enforcement in Vermont. However, in addition to enforcement, New York maintains a public records advisory body within its Department of State. This advisory body, known as the New York Committee on Open Government, has several statutorily mandated duties regarding the state’s public records requirements, including furnishing state agencies with advisory guidelines and opinions, furnishing any person with an advisory opinion or other appropriate information, developing a form that may be used by the public to request a record, and promulgating guidelines regarding deletion of identifying details or withholding of available records to prevent unwarranted invasions of personal privacy.115 The committee consists of the lieutenant governor, the secretary of state, the commissioner of the office of general services, the director of the budget or their delegates and seven other persons. Five of the additional committee members are appointed by the governor, two of whom must represent the media and one of whom should represent local government. One appointment is made by the senate pro tem and one appointment by the speaker of the house. None of the seven additional committee members can serve in local or state government, except for the representative of local government. The committee members are appointed for four year terms.116 In 2003, the committee received over 7,000 telephone inquiries and issued 800 written advisory opinions. Similarly, in 2005, the committee received over 6,000 telephone inquiries and issued over 800 written advisory opinions.117 Any person denied access to a record may within 30 days appeal to the head of the relevant agency, who shall within 10 business days of the receipt of such appeal provide access to the record or explain in writing the reasons for denial. Each agency shall immediately forward to the committee on open government a copy of every public records 110

Conn. Gen. Stat. §§ 1-241, 53a-36, 53a-42. Telephone interview with Colleen Murphy, executive director and general counsel, Connecticut Freedom of Information Commission (Sept. 8, 2006). 112 Id. 113 Id. 114 Id. 115 N.Y. Pub. Officers L. § 89. 116 Id. 117 New York Committee on Open Government, Report to the Governor and State Legislature: Adding Strength and Good Sense to Open Government Law 2-7 (2005). 111

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34 appeal received by the agency and the ensuing determination thereon. A person denied access by the head of the agency may appeal that decision by filing a lawsuit, known as an Article 78 proceeding, in a New York Supreme Court (equivalent to a Vermont superior court) that challenges the agency action. The agency involved shall have the burden of proving that a disputed record is exempt from disclosure. A court in an Article 78 proceeding may assess, against such agency involved, reasonable attorneys’ fees and other litigation costs reasonably incurred by such person when the person has substantially prevailed and the agency had no reasonable basis for denying access or the agency failed to respond to a request or appeal within the statutory time frame. In addition, any person who, with intent to prevent public inspection of a record, willfully conceals or destroys any such record shall be guilty of a violation. 118 In its 2005 annual report, the New York Committee on Open Government concluded that the legal remedy for challenging an agency action—that is a lawsuit—was excessively burdensome and subject to abuse by state agencies. Specifically, “[t]he problem is that initiating a lawsuit involves too much time and money to serve as a reasonable course of action for most people or entities seeking records . . . Further, although there is a possibility that a court may award attorney’s fees to a member of the public challenging a denial of access, the likelihood of an award is remote.”119 Moreover, because imposition of attorneys’ fees is the only penalty an agency is subject to and because such penalties are remote, agencies have the incentive to delay disclosure.120 Consequently, the Committee on Open Government recommended that an award of attorney’s fees be made mandatory when an agency fails to respond in a timely fashion or deny access without any real justification.

118

N.Y. Pub. Officers L. § 89. New York Committee on Open Government, Report to the Governor and State legislature: Adding Strength and Good Sense to Open Government Law 2-7 (2005). 120 Id. 119

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35

Appendix A: Public Records Act Exemptions

Act 132 (2005 Adj. Sess.) requires this report to include an analysis of the need and justification for each of the existing exemptions in statute to the inspection and review requirements of the Public Records Act. This Appendix identifies the 206 exemptions in statute to the Public Records Act, provides the year each exemption was enacted, and provides the justification or need for the exemption offered by state agencies or other interested parties. A justification or need is not identified for each exemption due to the time and resources that such an analysis would require. This appendix does not identify other exemptions that might exist in the Vermont Rules of Evidence, in rules adopted by Vermont state agencies, or under federal law. Statutory Citation & Year Enacted Public Records Act Exemptions 1. 1 V.S.A. § 317(c)(1) Records otherwise confidential by law (1976)

2.

1 V.S.A. § 317(c)(2) Records disclosed to specific persons (1976)

Exemption

Use, Justification, and Requested Clarification of Exemption

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

 General exemption that incorporates other exemptions set forth elsewhere in statute.  Used frequently by state agencies in response to PRA requests.  BISHCA stated that the department routinely is provided with information by its various regulated entities that is identified as confidential in the applicable provisions of Title 8, and applies this exception to preclude disclosure that would violate these confidentiality provisions. The department is also able to seek access to confidential information held by other state and federal regulators by offering assurances that it is legally authorized to maintain that confidentiality.

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

 The agency of human services stated that it and its component parts are likely to assert this exemption in a variety of contexts. See, for example, 9 VSA § 2440 (disclosure between governmental entities), 18 VSA § 5202 (medical examiner shall disclose autopsy reports to state’s attorney and attorney general and may disclose autopsy report to commissioner of corrections in certain circumstances; autopsy reports otherwise are confidential), and 33 VSA § 6911 (disclosure of investigative reports relating to elder or disabled person abuse limited to named parties, absent a court order).  ANR stated that it uses this exemption, (e.g., location of endangered species under 10 V.S.A. § 5410).  The Department of Corrections invokes this exemption for information that may only be disclosed to specifically designated persons, which includes but is not limited to, the information outlined in 28 V.S.A. § 204(d) and 28 V.S.A. § 403(4). VT LEG 207892.v1

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Appendix A: Public Records Act Exemptions Statutory Citation & Year Enacted

Exemption

Use, Justification, and Requested Clarification of Exemption  Dept. of public safety stated that it uses this exemption.  VLCT stated that the exemption is necessary as a general assurance to employees that their records are not public.  Tax department uses this exemption when consistent with 32 VSA § 3102 (exemption for tax records).

3.

1 V.S.A. § 317(c)(3) Records the disclosure of which would violate professional ethics (1976)

Records which, if made public pursuant to this subchapter [1 V.S.A. chapter 5], would cause the custodian to violate duly adopted standards of ethics or conduct for any profession regulated by the state.

 ANR stated that it uses this exemption (e.g., attorneyclient privileged communications).  Department of human resources (DHR) stated that this exception is not frequently used, but is important. This exemption allows the department to protect legal records that constitute privileged attorney-client communications and/or attorney work product. It is not frequently used, only because requests infrequently seek such materials. Elimination of such an exemption would be very problematic.  Dept. of public safety stated that it uses this exemption.  The natural resources board and district commissions stated that the exemption is applicable to each in the ordinary performance of their duties and responsibilities.  Tax department uses this exemption to protect attorney client privilege when records are in possession of a department attorney.

4.

1 V.S.A. § 317(c)(4) Records the disclosure of which would violate common law privilege (1976)

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.

 Agency of human services stated that this exemption is used widely throughout the agency; depending on the request, longstanding privileges relating to attorneyclient, doctor-patient, attorney work product and others would typically be asserted to shield certain communications from disclosure.  Agency of Commerce and Community Development (ACCD) uses this exemption to protect attorney client privilege when records are in the possession of an agency attorney.  ANR stated that it uses this exemption (e.g., attorneyclient privileged communications).  BISHCA stated that the department routinely asserts that VT LEG 207892.v1

37

Appendix A: Public Records Act Exemptions Statutory Citation & Year Enacted

Exemption

Use, Justification, and Requested Clarification of Exemption

 

   

5.

1 V.S.A. § 317(c)(5) Records of criminal investigations (1976)

Records dealing with the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency; provided, however, records relating to management and direction of a law enforcement agency and records reflecting the initial arrest of a person and the charge shall be public.

attorney-client privileged communications relating to department affairs are protected from disclosure by this provision. This is especially relevant to administrative enforcement proceedings, receivership proceedings initiated or maintained under Chapter 145 of Title 8, and other matters. The department of corrections invokes this exemption for privileges such as the attorney-client privilege. DHR stated that this exemption is not frequently used, but is important. Elimination of such an exemption would create problems concerning the ability to protect records containing privileged communications. Dept. of public safety stated that it uses this exemption. The natural resources board and district commissions stated that the exemption is applicable to each in the ordinary performance of their duties and responsibilities. Tax dept. uses this exemption to protect attorney client privilege when records in possession of dept. attorney. VLCT stated that this exemption needs clarification for the volunteer municipal officials that must interpret it.

 ANR stated that it uses this exemption (e.g., criminal investigative records from department of fish & wildlife wardens).  BISHCA stated that the department licenses insurance producers, bail bondsmen, securities brokers, mortgage producers and others who are licensed by the department in order to engage in business in Vermont. In circumstances where the department must investigate potential wrongdoing, records relating to these investigations should be considered confidential especially as the department occasionally is called upon to cooperate with state and federal law enforcement.  The department for children and families (DCF) stated that it often asserts this exemption because DCF is responsible for the licensing of child care facilities and foster care. Records relating to such licensing activities are exempted by this provision.  The department of corrections invokes this exemption VT LEG 207892.v1

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Appendix A: Public Records Act Exemptions Statutory Citation & Year Enacted

Exemption

Use, Justification, and Requested Clarification of Exemption

  

 

6.

1 V.S.A. § 317(c)(6) Tax records (1976)

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

for records involving sexual misconduct or such records maintained by medical contractors or providers. DMV stated that it uses the exemption regarding enforcement actions by the department. Dept. of public safety stated that it uses this exemption for criminal litigation. The natural resources board and district commissions stated that the exemption is applicable to them in the ordinary performance of their duties and responsibilities. Land use panel can ask Attorney General to bring criminal charges for Act 250 violation. VLCT stated that the exemption should be amended to include records reflecting convictions. Tax department uses this exemption for criminal investigations it conducts.

 ACCD uses this exemption to protect tax records received under the Vermont Economic Progress Council and VEGI programs and various contracts.  ANR stated that it uses this exemption (e.g., tax-related documents in enforcement investigation).  BISHCA stated that in connection with the regulation of captive insurance companies in particular, confidential tax records may be submitted to the department. The department has relied upon this provision as well as the substantive law applied to captive insurance companies to maintain the confidentiality of tax filings.  DHR stated that this exemption pertains to personal tax withholding information maintained on persons paid through the department’s payroll division. This is necessary for obvious reasons.  DMV uses this exemption to protect tax record information it receives.  The Office of Child Support (OCS) stated that it asserts this exemption because it has files that contain taxrelated information.  Tax department uses this exemption in a manner consistent with 32 VSA § 3102 (tax records exemption). VT LEG 207892.v1

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Appendix A: Public Records Act Exemptions

7.

Statutory Citation & Year Enacted 1 V.S.A. § 317(c)(7) Personal documents (1976)

Exemption

Use, Justification, and Requested Clarification of Exemption

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.

 ACCD stated that it uses this exemption.  Agency of human services stated that the exemption is used widely throughout the agency; it has been used when a party requests performance evaluations and other materials contained in a personnel file. Such disclosure is likely to interfere with the evaluation process and damage workplace morale.  ANR stated that it uses this exemption.  BISHCA stated that this exemption is generally applicable, and utilized on occasion in connection with employee matters. In connection with its regulation of health insurers and administration of insurance coverage appeal processes, the department also uses this provision to assure that individuals may maintain the confidentiality of personal information related to independent external reviews of health care service decisions per 8 V.S.A. §4089f and of mental health care service decisions per 8 V.S.A. §4089a. See also 1 V.S.A. §317(c)(28).  DHR stated that all state agencies rely on this exception to protect information in employee files and other files when the information is personal to employees. This exception is critical, especially at a time of increased concerns about privacy and identity theft. Even with this exception, state employees enjoy substantially less privacy in their employment records than do other employees and, the breadth of the exception was significantly limited by the Vermont Supreme Court decision Trombley v. Bellows Falls School Union High School Dist, 160 Vt. 101 (1993). DHR and other agencies seem to be spending ever increasing amounts of time reviewing employee records for personal information and litigating denials of release on the basis of this exemption. In recent years, the Department of Corrections has been sued over the release of the evaluations of a correctional superintendent. That case was appealed to the supreme court, and the department’s decisions about release were substantially endorsed by the trial and supreme courts, but only after substantial VT LEG 207892.v1

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Appendix A: Public Records Act Exemptions Statutory Citation & Year Enacted

Exemption

Use, Justification, and Requested Clarification of Exemption effort and expense.  Department of corrections invokes this exemption for requests of personnel information made by individuals other than the employee or his/her representative.  DMV stated that it uses this exemption to protect employee records.  Dept. of public safety stated that it uses this exemption.  Liquor control board uses exemption to protect employee files.  The natural resources board stated that the exemption applies to their staff records.  Tax department asserts that the exemption is necessary to protect employee files.  VLCT requested that the exemption be clarified to distinguish between personnel and personal records.

8.

1 V.S.A. § 317(c)(8) Test questions (1976)

Test questions, scoring keys, and other examination instruments or data used to administer a license, employment, or academic examination.

 ANR stated that it uses this exemption (e.g., possible use for test questions and scoring for water operator tests).  BISHCA stated that the department administers tests for licenses, and should it have information necessary to the scoring or administration of these tests it must remain confidential so that the integrity of the testing process is not compromised.  The department of corrections invokes this exemption for examinations of employees. A situation that may arise is that of a corrections officer who has received a failing grade on his/her examination and who may request a copy of his/her exam. The department of corrections would invoke this exemption in order for the examination questions to not be made public before others have taken the exam.  DHR stated that it relies on this exemption protect employment tests.  Dept. of public safety stated that it uses this exemption  DMV stated that it uses this exemption to protect results of licensing tests and exams.  VLCT stated that the exemption is necessary to protect test scores and other information of public officials. VT LEG 207892.v1

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Appendix A: Public Records Act Exemptions

9.

Statutory Citation & Year Enacted 1 V.S.A. § 317(c)(9) Trade secrets (1976)

Exemption

Use, Justification, and Requested Clarification of Exemption

Trade secrets, including, but not limited to, any formulae, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within a commercial concern, and which gives its user or owner an opportunity to obtain business advantage over competitors who do not know it or use it.

 ACCD stated that this is an important exemption for the agency, particularly regarding tax incentive programs that receive confidential financial information, as well as for the department of economic development and the information it receives when recruiting new businesses or supporting existing Vermont businesses.  Agency of human services stated that the exemption is used widely throughout the agency; it is frequently asserted relative to documents like requests for proposals, draft agreements, and contracts.  ANR stated that it uses this exemption (e.g., greenhouse gas litigation where trade secret information was received from automobile manufacturers on future product development and projected sales).  BISHCA stated that entities regulated by the department are required to provide the department with detailed financial information and business plans and formulaes that are often considered confidential by the companies. This information is not otherwise made public by these companies, and such nonpublic financial information provides the department with necessary information related to the solvency and financial strength of the company and to assure compliance with law and regulation. The department recognizes that disclosure of such information would place the regulated company at a competitive disadvantage should its confidential information be made public or otherwise available to its competitors. In order to assure that the department be able to receive and review the detailed information needed to properly regulate and license these companies, the department needs to be confident that it can hold this information in confidence.  DHR has relied on this exemption to protect certain information in bid documents. Typically, use of this would be with regard to processes or other information considered to constitute trade secrets that is submitted in the course of the public bidding process for our employee benefit contracts. For instance, some medical insurance administrators provide information about the VT LEG 207892.v1

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Appendix A: Public Records Act Exemptions Statutory Citation & Year Enacted

Exemption

Use, Justification, and Requested Clarification of Exemption



10.

1 V.S.A. § 317(c)(10) Lists of names (1976)

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.

1 V.S.A. § 317(c)(11) Student records (1976)

Student records at educational institutions funded wholly or in part by state revenue; 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 (P.L. 93-380) and as amended.

means of managing health claims for which they claim “trade secret.” Elimination of this exception might impact the department’s ability to get the best possible bids and contracts for services. Tax department stated that the exemption may be needed to protect mapping program that is part of property valuation and review; 32 V.S.A. § 3409 allows PVR to charge for orthophotographic maps. ANR stated that it uses this exemption (e.g., certain lists protected from disclosure for private gain). The department of corrections stated that it would invoke this exemption for a request of a list of the addresses of sexual offenders. DHR stated that, directly or in the course of advising other state agencies, it has most frequently used this exemption based upon the “private gain” element. For instance, although the department frequently provides various lists of state employee names, we refuse to provide electronic copies of state employee email addresses associated with those names because of the commercial value to marketers. This is critical to avoiding a significant increase in the amount of “spam” distracting state employees and clogging our systems. Dept. of public safety stated that it uses this exemption The natural resources board stated that this exemption may apply to lists of names it creates when the board collects input and evaluations for Act 250 purposes. VLCT requested that the exemption be clarified to address lister information.

 Under the federal Family Education Rights and Privacy Act, most student records are confidential and not available for public review. 20 U.S.C. § 1232g.  Dept. of public safety stated that it uses this exemption when investigation files contain student records.

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Appendix A: Public Records Act Exemptions

12.

13.

Statutory Citation & Year Enacted 1 V.S.A. § 317(c)(12) Records concerning formulation of policy (1976)

1 V.S.A. § 317(c)(13) Real estate information prior to state development (1976)

Exemption

Use, Justification, and Requested Clarification of Exemption

Records concerning formulation of policy where such would constitute a clearly unwarranted invasion of personal privacy, if disclosed.

 ACCD stated that through its department of housing & community affairs it uses this exemption to protect certain personal information collected in housing surveys.  ANR stated that it uses this exemption (possible use in limited circumstances by department of fish and wildlife).  The department of corrections invokes this exemption to protect the privacy of an individual when formulating a policy. Such a situation would arise when a policy for seriously mentally ill inmates is being developed. The department may use individual cases as exemplars to develop a policy. In order to protect the privacy of such an individual, the department would not disclose the particular situations used in developing the policy.  Tax department uses this exemption when policy decisions are informed by specific taxpayer information.  The natural resources board stated that the exemption applies to its formulation of policy.  VLCT requested that this exemption be clarified for the public and government officials.

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.

 ACCD stated that it uses this exemption regarding stateowned historic sites and other properties owned by the division for historic preservation.  ANR stated that it uses this exemption (e.g., information related to state land acquisitions prior to acquisition).  VLCT stated that the exemption is necessary to prevent price gouging due to government interest in real estate or personal property.

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Appendix A: Public Records Act Exemptions

14.

Statutory Citation & Year Enacted 1 V.S.A. § 317(c)(14) Records relevant to litigation (1976)

Exemption

Use, Justification, and Requested Clarification of Exemption

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.

 ACCD stated that it uses this exemption.  Agency of human services stated that the exemption is used widely throughout the agency; it is asserted when a matter is in litigation and a party or a person associated with a party to the litigation seeks information that should be supplied, or not, during the discovery process in the particular case. This exemption is important because it prevents disclosure in matters where a court is available to guide the discovery process.  ANR stated that it uses this exemption (e.g., used in litigation involving agency).  BISHCA stated that it has not had recent occasion to make use of this exemption, although the department does engage in litigation outside of the administrative process, especially in connection with insurance company receivership activities and enforcement of state securities law. The department believes that this provision is necessary to protect the integrity of the adversarial process.  The department of corrections invokes this exemption for records to litigation to which the department is a party until ruled discoverable by the court or upon final determination of the litigation.  DHR stated that it has used this exemption; it is important to avoid a “back door” to information that is otherwise protected in the legal process.  DMV stated that it uses the exemption in litigation involving the department.  Dept. of public safety stated that it uses this exemption  Liquor control board uses the exemption in litigation in which it is involved.  The natural resources board uses this exemption regarding litigation in which the land use panel and water resources panel are involved.  Tax uses the exemption in its frequent litigation of liability and collection issues.  VLCT stated that towns need ability to seek, receive and consider counsel in litigation outside of public eye. VT LEG 207892.v1

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Appendix A: Public Records Act Exemptions

15.

Statutory Citation & Year Enacted 1 V.S.A. § 317(c)(15) Records of contract negotiations (1976)

Exemption

Use, Justification, and Requested Clarification of Exemption

Records relating specifically to negotiation of contracts including but not limited to collective bargaining agreements with public employees.

 ACCD stated that it uses this exemption in response to public records requests concerning a number of contracts.  Agency of human services stated that the exemption is used widely throughout the agency; until a contract or grant is executed, the information relating to the contract or grant should be maintained as confidential to protect the negotiation process from both the state’s and the state’s business partners’ standpoint.  ANR stated that it uses this exemption.  The department of corrections invokes this exemption for records relating to negotiation of contracts. Such contracts include but are not limited to, negotiations with medical contractors.  DHR stated that this is important for collective bargaining with employees. Also, DHR stated that it has used this exemption, consistent with the position taken by the attorney general’s office, regarding public bidding for contracts. That is, the department does not disclose bidding records until completion of the public bidding process, including formation of the contract with the successful bidder. This exemption is critical to preservation of the integrity of the bidding process.  DMV stated that it uses this exemption.  Dept. of public safety stated that it uses this exemption.  Liquor control board stated that it uses this exemption.

16.

1 V.S.A. § 317(c)(16) Voluntary information submitted by corporations (1976)

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.

 Liquor control board stated that it uses this exemption.

17.

1 V.S.A. § 317(c)(17) Municipal deliberative process (1977)

Records of inter-departmental and intra-departmental 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 1 V.S.A. § 312.

 Liquor control board stated that it uses this exemption.  Dept. of public safety stated that it may use this exemption when Vermont emergency management interacts regularly with local emergency planning units; thus, some of the communications between the department and the local units could fall under this privilege. VT LEG 207892.v1

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18.

Statutory Citation & Year Enacted 1 V.S.A. § 317(c)(18) DPS internal investigations (1979)

Exemption

Use, Justification, and Requested Clarification of Exemption

Records of the office of internal investigation of the department of public safety, except as provided in section 1923 of Title 20.

 Dept. of public safety stated that it uses this exemption.  VLCT requested that the exemption be clarified for the lay person.

19.

1 V.S.A. § 317(c)(19) Identity of library patrons (1989)

Records relating to the identity of library patrons or the identity of library patrons in regard to the circulation of library materials.

 Department of libraries strongly supports the continuation of the exemption as necessary to protect the privacy of library patrons. The department argues that such privacy is essential to the exercise of free speech, free thought, and free association.

20.

1 V.S.A. § 317(c)(20) Information regarding location of archaeological sites (1989)

Information which would reveal the location of archeological sites and underwater historic properties, except as provided in section 762 of Title 22.

 ACCD stated that this is an important exemption for the agency and the department of historic preservation regarding sites it owns or seeks to protect.  ANR stated that it uses this exemption (e.g., location of archeological sites on state lands).

21.

1 V.S.A. § 317(c)(21) Lists of names compiled by Vermont Life (1995)

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.

 ACCD stated that this is an important exemption for Vermont Life magazine, which is within ACCD’s dept. of tourism & marketing, to maintain a revenue source.

22.

1 V.S.A. § 317(c)(22) Records related to new jobs and manufacturer’s tax credits (1995)

Any documents filed, received, or maintained by the agency of commerce and community development with regard to administration of 32 V.S.A. chapter 151, subchapters 11C and 11D (new jobs tax credit; manufacturer’s tax credit), except that all such documents shall become public records under this section subchapter when a tax credit certification has been granted by the secretary of administration, and provided that the disclosure of such documents does not otherwise violate any provision of Title 32.

 ACCD stated that it uses this exemption since it is involved in administration of the tax credit program.

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23.

24.

Statutory Citation & Year Enacted 1 V.S.A. § 317(c)(23) State college research records (1996)

1 V.S.A. § 317(c)(24) Deliberations of agencies acting in judicial or quasijudicial capacity (1996)

Exemption

Use, Justification, and Requested Clarification of Exemption

Any data, records or information developed, discovered, collected or received 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.

 ANR stated that it uses this exemption (e.g., possible use related to scientific research with UVM).

Records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.

 The agency of human services may assert this exemption. For example, DCF uses this exemption to protect certain records from disclosure when these records are generated during quasi-judicial, administrative reviews of departmental decisions.  ANR stated that it uses this when it acts in a quasijudicial capacity (e.g., contested case hearings held by agency).  BISHCA stated that it brings administrative enforcement actions against entities subject to its regulation, wherein the commissioner or appointed hearing officer serves in a judicial capacity in determining whether violations have occurred and the extent of sanctions to be imposed. The commissioner must also consider petitions filed by entities and individuals outside of the administrative process, whether by application for a license or approval of a new company’s entry into the state. In such circumstances, the commissioner must be entitled to rely on confidential advice of attorneys, deputies and others in preparing for deliberations. These protections would extend to pre-hearing legal memorandums and analysis.  DCF states that is uses this exemption to protect certain records from disclosure when these records are VT LEG 207892.v1

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Appendix A: Public Records Act Exemptions Statutory Citation & Year Enacted

Exemption

Use, Justification, and Requested Clarification of Exemption

   

25.

1 V.S.A. § 317(c)(25) Passwords and security codes (1996)

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.

generated during quasi-judicial, administrative reviews of departmental decisions. The tax department uses the exemption for documents, such as hearing transcripts, decisions or memoranda, that contain tax payer information. Liquor control board stated that it uses this exemption when it acts in a quasi-judicial manner. The land use panel of the natural resources board and the various district commissions act in a quasi-judicial manner and use this exemption. VLCT stated that the exemption is important to protect the viability of the judicial and quasi judicial process and should also include e-mail deliberations.

 ACCD stated that this exemption applied to ACCD managed networks, computer systems, and web sites.  ANR stated that it uses this exemption (for example, possible use if access requested as to passwords and access codes).  The department of corrections invokes this exemption frequently for the department’s “A” level security directives, which contain information relating to security procedures used at the department’s facilities.  DHR stated that it relies on this for protection against unauthorized access to systems. Because of all the private, confidential, and sensitive information held by the department, such as tax information, bank account information, employee records, and health information, this is critical.  DMV stated that it uses this exemption.  Dept. of public safety stated that it uses this exemption.  VLCT stated that the exemption is vital due to use of computers and e-mail.

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26.

Statutory Citation & Year Enacted 1 V.S.A. § 317(c)(26) BISHCA dispute information (1996)

Exemption

Use, Justification, and Requested Clarification of Exemption

Information and records provided to the department of banking, insurance, securities, and health care administration by an individual for the purposes of having the department assist that individual in resolving a dispute with any person or company regulated by the department, and any information or records provided by a company or any other person in connection with the individual’s dispute.

 BISHCA stated that a key function of the department is the service it provides to Vermont consumers seeking assistance in resolving disputes with insurance companies, HMOs, banks and other entities regulated by the department. The department considers it critical that consumers have confidence that in seeking help from the state in solving highly personal medical or financial problems that the information and documents shared with department employees will be maintained in strictest confidence. Absent this assurance, the department believes many consumers would be reluctant to fully detail their medical and financial problems, leaving them without aid in seeking a solution. The corollary protection for the company is needed to assure that the information relating to the claim or claims remains protected on both sides, and to create a culture of candor without concern for whether a willingness to find a flexible solution to a personal problem will be held against the company in a future proceeding.

27.

1 V.S.A. § 317(c)(27) DPS utility dispute information (1996)

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.

1 V.S.A. § 317(c)(28) Health and mental health service reviews (1997)

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.

 BISHCA stated that highly personal medical information is a necessary component in the regulatory appeal process detailed in Sections 4089a and 4089f of Title 8. In dealing with this most personal of information, the consumer submissions and medical records associated with the external appeal process must be afforded confidentiality. Vermonters have a realistic expectation that their most personal of information will not be made public merely because they make use an administrative appeal process.  The VDH stated that the mental health division asserts this exemption relating to mental health reviews pursuant to 8 VSA § 4089a. VT LEG 207892.v1

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29.

Statutory Citation & Year Enacted 1 V.S.A. § 317(c)(29) Abuse prevention program records (1999)

Exemption

Use, Justification, and Requested Clarification of Exemption

The records in the custody of the secretary of state of a participant in the address confidentiality program described in chapter 21, subchapter 3 of Title 15, except as provided in that subchapter.

All code and machine-readable structures of state-funded and controlled database applications, 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.

 ACCD stated that the agency advanced this exemption to protect some of the innovative work it has performed in the IT database context.  ANR stated that it uses this exemption (possible use regarding database for anglers and hunters).

1 V.S.A. § 317(c)(31) Voter information (2003)

Records of a registered voter’s month and day of birth, motor vehicle operator’s license number, the last four digits of the applicant’s Social Security number, and street address if different from the applicant’s mailing address contained in an application to the statewide voter checklist or the statewide voter checklist established under section 2154 of Title 17.

 ANR stated that it uses this exemption (possible invocation as to last digits of motor vehicle operator’s license to be used as identifier in electronic filing system).  DMV stated that this exemption applies to information it collects.  Tax department uses this exemption for information contained in tax returns.

1 V.S.A. § 317(c)(32) State building plans and layouts (2003)

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,

 ACCD stated that it needs this exemption to protect the security of historic sites and valuable resources located at those sites.  ANR stated that it uses this exemption (possible use if warranted).  The department of corrections could assert this exemption if someone sought blue prints of a correctional facility or to maximize the security of its correctional facilities  Dept. of public safety stated that it uses this exemption particularly with regard to security systems within a facility.  Tax department uses for plans of space occupied by the department.

30.

1 V.S.A. § 317(c)(30) State marketing databases (2001)

31.

32.

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Appendix A: Public Records Act Exemptions Statutory Citation & Year Enacted

Exemption

Use, Justification, and Requested Clarification of Exemption

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 subdivsion and denying access to information requested, the custodian of the information shall articulate the grounds for the denial. 33.

1 V.S.A. § 317(c)(33) Account numbers held by state agency (2003)

34.

1 V.S.A. § 317(c)(34) Family court income affidavits (2004)

The account numbers for bank, debit, charge, and credit cards held by an agency or its employees on behalf of the agency.

 ACCD stated that it uses this exemption to protect social security numbers and identification numbers it obtains on applications for tax credits and contract documents.  ANR stated that it uses this exemption (possible use as to bank account and credit card information).  DMV uses this exemption for credit card information it collects from customers.  Dept. of public safety stated that it uses this exemption.  OCS stated that it asserts this exemption. OCS files contain copies of individual account information for bank and credit card companies. Also, OCS disburses child support monies primarily through electronic funds transfer into individual bank accounts. OCS information is generally shielded from disclosure by state and federal law.  Tax department uses to protect card information for state issued credit cards.  Liquor control board maintains records related to credit card transactions.

Affidavits of income and assets as provided in section 662 of Title 15 and Rule 4 of the Vermont Rules for Family Proceedings.

 OCS stated that nearly all OCS files contain copies of family court income affidavits

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35.

Statutory Citation & Year Enacted 1 V.S.A. § 317(c)(35) Personal identification numbers (2004)

36.

1 V.S.A. § 317(c)(36) Ant-fraud plans (2006)

37.

1 V.S.A. § 317(c)(37) Patient surveillance and improvement system records (2006)

Exemption

Social Security numbers or other governmentally assigned personal identification numbers contained in one of the following: the records of a computerized assessment, generally known as the computer assisted mass appraisal system (CAMA), as provided in section 3465 of Title 32; the grand list as defined by section 4152 of Title 32; or property transfer tax returns. However, any party in a legal transaction or proceeding related to a specific parcel of property shall have access to any court-required data.

Use, Justification, and Requested Clarification of Exemption  The agency of human services stated that it uses this exemption. Given the very large number of persons served by the agency and its constituent departments, this exemption would be used to protect the privacy interests of agency clients. This exemption parallels similar protections conveyed in other state and federal enactments.  Tax department uses this exemption to protect CAMA records and property transfer tax returns filed with property valuation and review.

Anti-fraud plans and summaries submitted by insurers to the department of banking, insurance, securities, and healthcare administration for the purposes of complying with 8 V.S.A. § 4750.

 BISHCA stated that as a result of recent legislation, insurance companies may be required to file detail plans describing efforts to identify and reduce insurance fraud. This provision recognizes that insurance companies should not be required to make public the very document that outlines in detail the specific procedures, techniques and policies that a company intends to utilize in an ongoing effort to combat insurance fraud.

Records provided to the department of health pursuant to the patient safety surveillance and improvement system established by chapter 43a of Title 18.

 VDH stated that the mental health division uses this exemption regarding information about patients.

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Appendix A: Public Records Act Exemptions Statutory Citation & Year Enacted Exemptions Elsewhere in Statute 38. 1 V.S.A. § 313(a) Minutes of executive sessions (1973)

Exemption

Use, Justification, and Requested Clarification of Exemption

No public body described in section 312 of this title may hold an executive session from which the public is excluded. . . . Minutes of an executive session need not be taken, but if they are, shall not be made public subject to subsection 312(b) of this title.

 ACCD stated that it administratively supports public bodies such as VEPC and the downtown board to which this applied. Also, the ACCD stated that the secretary and commissioners chair or provide administrative support to other bodies.  Liquor control board stated that it uses this exemption for records of executive sessions of the board.  Natural resources board, its panels, and the district commissions use this exemption to protect records of executive sessions.  VLCT stated that this exemption is vital due to need for municipalities to go into executive session as authorized by statute.

39.

2 V.S.A. § 404(c) Legislative confidentiality (1971)

All requests for legal assistance, information and advice and all information received in connection with research or drafting shall be confidential unless the party requesting or giving the information designates in the request that it is not confidential. Transcripts and minutes of committee meetings, including written testimony submitted to the committee, bills or amendments which have been released or approved for printing or introduction and material appearing in the journals or calendars of either house are official documents and shall not be confidential under this subsection.

 Protects confidentiality of initial legislative drafting and research requests.

40.

2 V.S.A. § 502(b)(2) Joint fiscal office confidentiality (2006)

(2) All requests for assistance, information, and advice and all information received in connection with fiscal research or related drafting shall be confidential unless the party requesting or giving the information designates in the request that it is not confidential. Documents, transcripts, and minutes of committee meetings, including written testimony submitted to a committee, fiscal notes and summaries which have been released or approved for printing or introduction, and material appearing in the journals or calendars of either house are official documents and shall not be confidential under this subsection.

 Protects confidentiality of initial joint fiscal office research requests.

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41.

Statutory Citation & Year Enacted 3 V.S.A § 131 Disciplinary board actions (1989)

Exemption

Use, Justification, and Requested Clarification of Exemption

Neither the secretary [of state] nor the office shall make public any information regarding disciplinary complaints, proceedings or records except the information required to be released under this section.

42.

3 V.S.A. § 316 Human resources records (1959)

The records of the department [of human resources], except such records as the rules may properly require to be held confidential for reasons of public policy, shall be public records and shall be open to public inspection, subject to reasonable regulations as to the time and manner of inspection as may be prescribed by the commissioner.

43.

4 V.S.A. § 358(b) Probate court records (1985)

The register shall safeguard from disclosure those records of the probate court made confidential or to which public access is limited by law or the rules of probate procedure.

44.

4 V.S.A. § 602(c) Judicial nominating board; candidate information (1966)

All proceedings of the [judicial nominating] board, including the names of candidates considered by the board and information about any candidate submitted by the court administrator or by any other source, shall be confidential.

45.

4 V.S.A. § 603 Judicial nominating board; candidate information (1975)

Whenever the governor appoints a supreme court justice or a superior or district judge, he or she shall do so from the list of names of qualified persons submitted to him or her by the judicial nominating board. The names of candidates submitted and not selected shall remain confidential.

46.

4 V.S.A. § 608(c) Joint committee on judicial retention; judicial performance (1985)

Information obtained under subsection (c) of section 607 of this title [solicitation of comments regarding judicial performance] shall be confidential until the committee commences its hearings under this subsection.

 DHR stated that this exemption is the statutory basis for the power of the commissioner of human resources to establish our policy regarding confidential material that appears in employee records. Many would argue that the exemptions for employee records should be expanding, as the threat of identity theft and the interest in personal privacy increases. Recent statutory changes have expanded the privacy rights of employees in general, such as 12 V.S.A. § 1691a, which created a special rule for legal discovery that effectively gives an employee a right to object to the production of his or her employment records in litigation.

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47.

Statutory Citation & Year Enacted 4 V.S.A. § 652(4) Superior court clerk; court records (1979)

Exemption

Use, Justification, and Requested Clarification of Exemption

However, the [court] clerk shall not disclose the filing of an action or release any records, proceedings, or minutes pertaining to it until service of process has been completed; nor shall he disclose any materials or information required by law to be kept confidential.

48.

4 V.S.A. § 693 District court clerk; court records (1979)

Except as provided in section 454 of Title 22, [the court clerk] shall keep on file and preserve all process, pleadings and papers relating to causes in the district court which, together with the records of the court, shall be subject to inspection and examination by parties interested in those causes and, upon tender of the legal fees, he or she shall furnish, or cause to be furnished, duly certified copies of any records, pleadings, process or papers; except that he or she shall not disclose any materials or information required by law to be kept confidential.

49.

4 V.S.A. § 740 Supreme Court records (1989)

The supreme court by administrative order shall provide for the preparation, maintenance, recording, indexing, docketing, preservation, and storage of all family court records and the provision, subject to confidentiality requirements of chapter 55 of Title 33, of certified copies of those records to persons requesting them.

50.

4 V.S.A. § 741(c) Judicial bureau; credit card information (1997)

Card account numbers, while in the possession of the court or bureau, are confidential.

51.

5 V.S.A. § 3452 Transportation board; disclosure of information collected from railroads (1994)

(a) When requested to do so by the board or the agency, a railroad operating in this state shall furnish the board or agency any information specifically requested concerning the management of the railroad and the condition of its equipment and facilities, provided that the request shall extend only to information reasonably related to the railroad’s operations in this state, and provided further that the board and the agency shall have no right to request information regarding salaries, pensions, options or benefit programs or the expenses of officers or directors of railroads incorporated outside the United States. (b) Any information provided by a railroad to the board or agency on the following subjects, whether pursuant to this section or otherwise, shall be confidential and shall not be disclosed by the board or the agency except as provided in subsection (c) of this section: (1) customer data; (2) compensation and benefits for a railroad’s directors, officers and employees; VT LEG 207892.v1

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Appendix A: Public Records Act Exemptions Statutory Citation & Year Enacted

Exemption

Use, Justification, and Requested Clarification of Exemption

(3) contracts, financial obligations and financial standing; and (4) proprietary data known only to certain individuals within a railroad’s organization and which give the railroad the opportunity to obtain business advantage over competitors who do not know it. (c) Confidential information may be made public by the board or the agency only if the board first determines that the public good requires disclosure and that the disclosure will not violate state or federal law. The board shall give the railroad written notice and shall afford the railroad an opportunity to be heard prior to making any determination that disclosure should be made, and shall make written findings of fact upon which its determination is made. (d) Nothing contained in this title or in any provision of Title 5 or 19 shall be construed to require a railroad to produce an investigatory report or other information which was prepared by a railroad, its agents or its employees at the request or direction of a railroad’s attorney, nor shall anything contained in this title or any provision of Title 5 or 19 be construed to abrogate the attorneyclient privilege as is otherwise provided by law. 52.

6 V.S.A. § 61 Agency of agriculture, food and markets; agricultural statistics (1993)

The secretary may collect information on subjects within the jurisdiction of the agency, including data obtained from questionnaires, surveys, physical samples and laboratory analyses conducted by the agency. Such information, shall be available upon request to the public, provided that it is presented in a form which does not disclose the identity of individual persons, households or businesses from whom the information was obtained, or whose characteristics, activities or products the information is about.

 Agency of agriculture, food and markets stated that the exemption is needed to protect agriculture producers in the state from unwanted inquiries into their personal and business lives. The agency still collects the information, but presents it in an aggregate form for use by the general public.

53.

6 V.S.A. § 484 Agency of agriculture; records of maple products dealers and processors (1981)

The secretary may, by rule, require all licensed dealers or processors to maintain specific records for the purchase and sale of maple products. Those records shall be kept in a full and accurate manner and shall be made available to the secretary or his inspector upon request. The secretary shall use those records only for purposes of administering this chapter, or for other law enforcement purposes, and shall otherwise keep them confidential.

 Agency of agriculture, food and markets stated that the legislature added the exemption as a policy decision to protect the specific information identified. The exemption is not often used.

54.

6 V.S.A. § 1039 Agency of agriculture; pesticide/pest survey confidentiality of trade secrets (1995)

The secretary may not make information public which contains or relates to trade secrets, commercial or financial information obtained from a person which is privileged or confidential. However, when the information is necessary to carry out the provisions of this chapter, or any of the rules adopted under this chapter, this information may be revealed, subject to a protective order, to any federal or state agency, or may be revealed, subject to a protective order, at a closed hearing or in findings of fact issued by the secretary.

 Agency of agriculture, food and markets stated that the legislature added the exemption as a policy decision to protect the specific information identified. The exemption is not often used.

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55.

Statutory Citation & Year Enacted 6 V.S.A. § 1815 Agency of agriculture; Northeast dairy compact; milk business records (1993)

Exemption

Use, Justification, and Requested Clarification of Exemption

Information furnished to or acquired by the commission officers, employees, or its agents pursuant to this section shall be confidential and not subject to disclosure except to the extent that the commission deems disclosure to be necessary in any administrative or judicial proceeding involving the administration or enforcement of this compact, an over-order price, a compact marketing order, or other regulations of the commission. The commission may promulgate regulations further defining the confidentiality of information pursuant to this section. Nothing in this section shall be deemed to prohibit (i) the issuance of general statements based upon the reports of a number of handlers, which do not identify the information furnished by any person, or (ii) the publication by direction of the commission of the name of any person violating any regulation of the commission, together with a statement of the particular provisions violated by such person.

 Agency of agriculture, food and markets stated that the legislature added the exemption as a policy decision to protect the specific information identified. The exemption is not often used.

56.

6 V.S.A. § 2763(g) Agency of agriculture; rbST inspection reports (1997)

The secretary shall annually by January 15 report to the general assembly on implementing this section [rbST inspection], consistent with the confidentiality requirements of section 2766 of this title.

 Agency of agriculture, food and markets stated that the legislature added the exemption as a policy decision to protect the specific information identified. The exemption is not often used.

57.

6 V.S.A. § 2766 Agency of agriculture; rbST inspection information (1997)

Any identifying information contained in any reports, records, or other record of information regardless of format in which it is created and maintained, obtained by the secretary, the attorney general or a handler pursuant to this subchapter shall be kept confidential and shall not be disclosed to any person, except: (1) as necessary to enable enforcement of this subchapter; (2) as provided by section 2765 of this title; and (3) to enable the secretary to perform his or her duties under this subchapter, which may include preparation of public information and public reports on the provisions of this subchapter and its implementation, provided that such information and reports are presented in a form which does not disclose the identity of individual persons or individual milk producers whose activities or products are the subject of the information.

 Agency of agriculture, food and markets stated that the legislature added the exemption as a policy decision to protect the specific information identified. The exemption is not often used.

58.

6 V.S.A. § 2936(b) Agency of agriculture; reports from milk handlers (1991)

The commission shall keep information received under this section [reports from milk handlers] confidential except as necessary for the adoption of rules or enforcement actions.

 Agency of agriculture stated that the legislature added the exemption as a policy decision to protect the specific information identified. The exemption is not often used.

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59.

60.

Statutory Citation & Year Enacted 8 V.S.A. § 15(b) BISHCA; financial institution advisory interpretations (1999)

8 V.S.A. § 22 BISHCA; confidentiality and information sharing (2001)

Exemption

Use, Justification, and Requested Clarification of Exemption

The commissioner may make public all or a portion of an advisory interpretation [regarding Part 5 of Title 8, financial institutions].

 ACCD stated that it uses this exemption through its department of economic development and the department’s works with captive insurance businesses and other financial institutions.  BISHCA stated that the commissioner is authorized to make public all or a portion of an advisory interpretation relating to the provisions detailed in Part Five of Title 8 relating to financial and related institutions, as entities regulated by the banking division may and do seek to advise the department of their intentions through the filing of business plans and various proposals, a practice encouraged by the department as it promotes the regulatory relationship. These entities may seek specific advice from the department as to whether a proposed course of conduct or new financial product meets with the requirements of Vermont law or regulation or might be viewed favorably by regulators. In such circumstances, in responding to written inquiries, the commissioner should have the authority to keep certain information in an advisory communication confidential so that a company’s confidential course of business would not be jeopardized through disclosure. The confidentiality afforded by §15(b) allows the department to encourage a close relationship with its regulated entities.

Any information furnished pursuant to this subsection [confidentiality and information sharing agreements] by or to the commissioner that has been designated confidential by the furnisher of the information shall not be subject to public inspection under Title 1, chapter 5, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action.

 BISHCA stated that the nature of the coordinated regulation engaged in by the department requires close cooperation with other regulating entities, including state, federal and international. Entities regulated by BISHCA necessarily operate in many other states, and the department must be able to cooperate to be assured of a well-coordinated and comprehensive regulatory review. This provision provides the department with the ability to exchange and maintain sensitive information from other regulators in confidence, and is essential to BISHCA’s mission. In addition to other states, the department coordinates and shares confidential information with the National Association of Insurance VT LEG 207892.v1

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Exemption

Use, Justification, and Requested Clarification of Exemption Commissioners, the National Association of Securities’ Administrators, the Conference of State Bank Supervisors, the Financial Crimes Enforcement Network and others, relying upon this authority.

61.

8 V.S.A. §23 BISHCA; investigation records (2001)

Regardless of source, all records of investigations, including information pertaining to a complaint by or for a consumer, and all records and reports of examinations by the commissioner, whether in the possession of a supervisory agency or another person, shall be confidential and privileged, shall not be made public, and shall not be subject to discovery or introduction into evidence in any private civil action. No person who participated on behalf of the commissioner in an investigation or examination shall be permitted or required to testify in any such civil action as to any findings, recommendations, opinions, results or other actions relating to the investigation or examination.

 BISHCA stated that in the course of regulating banks and other financial institutions, the banking division’s examiners review, investigate, and analyze financial records and reports containing highly confidential personal financial information of borrowers, account holders, and the institution in general. This information is also shared with other regulators in other jurisdictions in order that the safety and solvency of these institutions can be assured. This provision assures that banking division investigations and examinations are properly afforded confidentiality and remain exempt from public records in order to assure that bank examiners receive full access and enjoy the atmosphere of candor essential to the regulatory relationship. Related protections are explicitly provided in 8 V.S.A. §11502 for consumer complaints regarding financial institutions as well as to records of joint examinations and investigations conducted with other supervisory agencies. 8 V.S.A. §30602 provides similar authority to the Commissioner in connection with the regulation of credit unions. In particular, the Department believes the Banking Division examination privilege is a practical necessity in preserving a safe and sound banking environment.In re Bank One Securities Litigation, 209 F.R.D. 418, 426 (N.D. Ill. 2002) described it as follows: Bank safety and soundness supervision is an iterative process of comment by the regulators and response by the bank. The success of the supervision therefore depends vitally upon the quality of communication between the regulated banking firm and the bank regulatory VT LEG 207892.v1

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Exemption

Use, Justification, and Requested Clarification of Exemption agency...Because bank supervision is relatively informal and more or less continuous, so too must be the flow of communication between the bank and the regulatory agency. Bank management must be open and forthcoming in response to the inquiries of bank examiners, and the examiners must in turn be frank in expressing their concerns about the bank. These conditions simply could not be met as well if communications between the bank and it's regulators were not privileged. In re Subpoena Upon the Comptroller of the Currency, and the Secretary of the Bd. Of Governors of the Federal Reserve Sys, (In Re Subpoena), 967 F.2d 630, 633 (D.C.Cir.1992). One of the most important reasons for the Banking Division exemption is the "chilling effect" that disclosure of the investigations, examinations, and consumer complaints would have on the Department's ability to perform its regulatory function. Neither the Department, the Department's examiners, nor those the Department regulates could engage in any open or meaningful discussions if the parties involved constantly had to be concerned that the Department's regulatory and examination function is nothing more than a free and easy discovery process for future plaintiff's counsel. The examinations and investigations contain the impressions and opinions of examiners on bank practices, management, and the relative financial stability of the financial institution. The examinations may also contain suggestions for recommended improvements or changes to the financial institutions operations. There is a risk that public disclosure of the examination reports and investigations could lead to a public misunderstanding that there is something wrong with a healthy viable financial institutions and thereby irreparably harm the financial institution's reputation and VT LEG 207892.v1

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Exemption

Use, Justification, and Requested Clarification of Exemption the public's confidence in the financial institution and the banking system. The banking division exemption also covers consumer complaints and investigation of consumer complaints. Although some consumer complaints have merit, others do not. Some consumer complaints are based upon a misunderstanding of the facts or a misunderstanding of the law. As above, public disclosure of consumer complaints could lead to a public misunderstanding that there is something wrong with a healthy viable financial institutions and thereby irreparably harm the financial institution's reputation and the public's confidence in the financial institution. Furthermore, a consumer complaint involves matters related to a consumer's private financial affairs. It is unlikely that a consumer wants his or her private financial affairs publicly broadcast when the consumer comes to the department seeking assistance.  VDH stated that the mental health division could assert this exemption relative to records in its possession that relate to FUTURES planning.

62.

8 V.S.A. § 3571 BISHCA; insurance companies financial analysis rations and examination synopses (1991)

All financial analysis ratios and examination synopses concerning insurance companies that are submitted to the department by the National Association of Insurance Commissioners’ Insurance Regulatory Information System are confidential and may not be disclosed by the department.

 BISHCA stated that this exemption requires that certain information provided to the department by the NAIC must be held in confidence. The cooperative efforts between the states, and through the NAIC, are essential to the Department’s mission and continuing accreditation with the NAIC.

63.

8 V.S.A. § 3574(d) BISHCA; examination reports of insurance companies (1991)

(d) Publication and use. (1) The commissioner may hold the contents of the examination report confidential for 15 days following the issuance of the commissioner’s order under subsection (c) of this section. (2) The commissioner may disclose the content of an examination report, preliminary examination report or results, or any related matter, to the insurance department of any other state or country, or to law enforcement officials of this or any other state or agency of the federal government at any time, as long as such agency or office receiving the report or related matters agrees in writing to hold it in a manner consistent with this section.

 BISHCA stated that this exemption provides that examination reports may be confidential for a limited period before publication, principally to allow the company examined to respond or rebut the conclusions in the report. This provision also confirms that all materials prepared or obtained by the commissioner in the course of the examination shall by confidential except to the extent shared with the NAIC or used in other regulatory proceedings contemplated by 8 V.S.A. §3573. VT LEG 207892.v1

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Exemption

Use, Justification, and Requested Clarification of Exemption

(3) The commissioner may refuse to disclose any information or records which would indicate or show the existence or content of any investigation or activity of a criminal justice agency. (4) All working papers, recorded information, documents and copies thereof produced by, obtained by or disclosed to the commissioner or any other person in the course of an examination made under this section are confidential and are not subject to subpoena and may not be made public by the commissioner or any other person, except to the extent provided in this subsection and subsection 3573(e) of this title. The commissioner may grant access to such information to the National Association of Insurance Commissioners. Such parties must agree in writing prior to receiving the information to provide to it the same confidential treatment as required by this section, unless the prior written consent of the company to which it pertains has been obtained. 64.

8 V.S.A. § 3687 BISHCA; examination reports of insurance company subsidiaries (1971)

All information, documents, and copies thereof obtained by or disclosed to the commissioner or any other person in the course of an examination or investigation made pursuant to section 3686 of this title and all information reported pursuant to section 3684 of this title, shall be given confidential treatment and shall not be subject to subpoena and shall not be made public by the commissioner or any other person, except to insurance departments of other states where such information will remain confidential, without the prior written consent of the insurer to which it pertains unless the commissioner, after giving the insurer and its affiliates who would be affected thereby, notice and opportunity to be heard, determines that the interests of policyholders, shareholders or the public will be served by the publication thereof, in which event he or she may publish all or any part thereof in such manner as he or she may deem appropriate.

 BISHCA stated that this exemption provides confidential treatment for information and materials obtained in the course of the examination of insurance companies. Such confidentiality is deemed essential to a comprehensive and candid examination of insurance companies.

65.

8 V.S.A. § 4089a(i) BISHCA; mental health care services review (1976)

(i) The confidentiality of any health care information acquired by or provided to the independent panel of mental health professionals shall be maintained in compliance with any applicable state or federal laws. The independent panel shall not constitute a public agency under subsection 317(a) of Title 1, or a public body under section 310 of Title 1. Records of, and internal materials prepared for, specific reviews under this section shall be exempt from public disclosure under section 316 of Title 1.

 BISHCA stated that this exemption requires that, in connection with mental health care services review, the department ensure the confidentiality of clients/patients mental health records, as noted above in connection with 1 V.S.A. §317(c)(28).  VDH stated that the mental health division could assert this exemption relative to records in its possession that relate to FUTURES planning.

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66.

Statutory Citation & Year Enacted 8 V.S.A. § 4089f(d)(6) BISHCA; external review of health care services decisions (1997)

Exemption

(d) The department shall adopt rules necessary to carry out the purposes of this section. The rules shall ensure that the independent external reviews have the following characteristics: (1) The independent external reviews shall be conducted, ***

(5) The confidentiality of any health care information acquired or provided to the independent review organization shall be maintained in compliance with any applicable state or federal laws. (6) The records of, and internal materials prepared for specific reviews by any independent review organization under this section shall be exempt from public disclosure under 1 V.S.A. § 316.

Use, Justification, and Requested Clarification of Exemption  BISHCA stated that this exemption requires that any health care information received in connection with the operation of the independent review organization be maintained in compliance with state and federal law, and are specially exempt from public records disclosure, as noted above in connection with 1 V.S.A. §317(c)(28).  VDH stated that the mental health division could assert this exemption relative to records in its possession that relate to FUTURES planning.

67.

8 V.S.A. § 4164(b) BISHCA; Life insurance company negotiations (1971)

(b) Records shall be kept of all negotiations and meetings in which the association or its representatives are involved to discuss the activities of the association in carrying out its powers and duties under section 4158 of this title. Records of such negotiations or meetings shall be made public only upon the termination of a liquidation, rehabilitation, or conservation proceeding involving the impaired insurer, upon the termination of the impairment of the insurer, or upon the order of a court of competent jurisdiction. Nothing in this subsection shall limit the duty of the association to render a report of its activities under section 4165 of this title.

 BISHCA stated that Chapter 112 of Title 8 establishes a guaranty association to protect policyholders, insureds, beneficiaries and others in the event an insurer becomes impaired. This particular provision allows for the association to act with confidentiality in connection with the liquidation, rehabilitation or conservation of an impaired insurer so that the business of the association may not be frustrated.

68.

8 V.S.A. § 4813m(f) BISHCA; insurance company notice of termination (2001)

(f) Confidentiality. (1) Any documents, materials or other information in the control or possession of the department of banking, insurance, securities, and health care administration that is furnished by an insurer, producer or an employee or agent thereof acting on behalf of the insurer or producer, or obtained by the commissioner in an investigation pursuant to this section shall be confidential by law and privileged, shall not be subject to chapter 5 of Title 1, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action. However, the commissioner is authorized to use the documents, materials or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner’s duties. (2) Neither the commissioner nor any person who received documents, materials or other information while acting under the authority of the commissioner shall be permitted or required to testify in any private civil action concerning any confidential documents, materials, or information subject to subdivision (1) of this subsection. (3) In order to assist in the performance of the commissioner’s duties under this

 BISHCA stated that in the course of its regulatory responsibilities, the department may investigate insurance producers licensed by the department. Materials developed in the course of any such investigations are confidential although the commissioner remains free to make use of the information in any subsequent legal or regulatory action brought by the commissioner. This statute also includes specific authority to share and maintain in confidence any information received from the NAIC, law enforcement, and other regulators

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Exemption

Use, Justification, and Requested Clarification of Exemption

chapter, the commissioner may: (A) share documents, materials or other information, including the confidential and privileged documents, materials or information subject to subdivision (1) of this subsection, with other state, federal, and international regulatory agencies, with the National Association of Insurance Commissioners, its affiliates or subsidiaries, and with state, federal, and international law enforcement authorities, provided the recipient agrees to maintain the confidentiality and privileged status of the document, material or other information; (B) receive documents, materials or information, including otherwise confidential and privileged documents, materials or information, from the National Association of Insurance Commissioners, its affiliates or subsidiaries, and from regulatory and law enforcement officials of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material or information; and (c) enter into agreements governing sharing and use of information consistent with this subsection. (4) No waiver of any applicable privilege or claim of confidentiality in the documents, materials, or information shall occur as a result of disclosure to the commissioner under this section or as a result of sharing as authorized in subdivision (3) of this subsection. (5) Nothing in this act shall prohibit the commissioner from releasing final, adjudicated actions, including for cause terminations that are open to public inspection pursuant to chapter 5 of Title 1 to a database or other clearinghouse service maintained by the National Association of Insurance Commissioners, its affiliates or subsidiaries.

69.

8 V.S.A. § 4488(5) BISHCA; notice of termination of insurance agent (1959)

(5) Notice of termination of appointment of insurance agent. Every society doing business in this state shall, upon the termination of the appointment of any insurance agent licensed to represent it in this state, forthwith file with the commissioner of banking, insurance, securities, and health care administration, a statement, in such form as he may prescribe, of the facts relative to the termination and the cause thereof. Every statement made pursuant to this section shall be deemed a privileged communication.

 BISHCA stated that the department is responsible for the licensing of insurance agents, including those of fraternal benefit associations, and when such society terminates the appointment of an agent it must inform the department of the facts and circumstances associated with the revocation. This provision provides that such notices are privileged, until such time as the department takes action to revoke or suspend a license.

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70.

71.

Statutory Citation & Year Enacted 8 V.S.A. § 6002(c)(3) BISHCA; captive insurance company license applications (1999)

8 V.S.A. § 6008(c) BISHCA; examination reports of captive insurance company (1997)

Exemption

Use, Justification, and Requested Clarification of Exemption

(3) Information submitted pursuant to this subsection shall be and remain confidential, and may not be made public by the commissioner or an employee or agent of the commissioner without the written consent of the company, except that: (A) such information may be discoverable by a party in a civil action or contested case to which the captive insurance company that submitted such information is a party, upon a showing by the party seeking to discover such information that: (i) the information sought is relevant to and necessary for the furtherance of such action or case; (ii) the information sought is unavailable from other nonconfidential sources; (iii) a subpoena issued by a judicial or administrative officer of competent jurisdiction has been submitted to the commissioner; provided, however, that the provisions of this subdivision (3) shall not apply to any risk retention group; and (B) the commissioner may, in the commissioner's discretion, disclose such information to a public officer having jurisdiction over the regulation of insurance in another state, provided that: (i) such public official shall agree in writing to maintain the confidentiality of such information; and (ii) the laws of the state in which such public official serves require such information to be and to remain confidential.

 BISHCA stated that under this exemption license applications and materials submitted in support by captive insurance companies are confidential and may not be disclosed absent company consent.

All examination reports, preliminary examination reports or results, working papers, recorded information, documents and copies thereof produced by, obtained by or disclosed to the commissioner or any other person in the course of an examination made under this section are confidential and are not subject to subpoena and may not be made public by the commissioner or an employee or agent of the commissioner without the written consent of the company, except to the extent provided in this subsection. Nothing in this subsection shall prevent the commissioner from using such information in furtherance of the commissioner's regulatory authority under this title. The commissioner may, in the commissioner's discretion, grant access to such information to public officers having jurisdiction over the regulation of insurance in any other state or country, or to law enforcement officers of this state or any other state or agency of the federal government at any time, so long as such officers receiving the information agree in writing to hold it in a manner consistent with this section.

 BISHCA stated that this exemption provides confidentiality to captive insurance company examinations, and related materials, but allows disclosure to other state insurance regulators and law enforcement in certain circumstances.

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72.

Statutory Citation & Year Enacted 8 V.S.A. § 6052 BISHCA; risk retention group applications (1996)

Exemption

Use, Justification, and Requested Clarification of Exemption

(2) The applicant may bind separately any portions of the application or any amendment thereto that contain proprietary information or documents, and request confidential treatment of such portions. For the purposes of this section, “proprietary information or documents” means certain information or documents furnished by or pertaining to any of the persons specified above that would customarily be treated as confidential or sensitive and the disclosure of which could result in harm or prejudice to the person to whom the information or documents pertain or unfair advantage to another person. Such information includes, but is not limited to, trade secrets, historical or projected loss data or case reserves of members or policyholders, actuarial analyses which include such data or reserves, historical or projected financial data not otherwise publicly available, and similar information or documents. The commissioner shall determine which portions specified by the applicant fall within the definition of proprietary information or documents and treat such portions as confidential. Provided, however, that nothing herein shall excuse the applicant from making any required disclosure under RRA 1986, this ch. or ch. 141 of this title, or prohibit the commissioner from disclosing any proprietary information or documents in the furtherance of any legal or regulatory proceeding. Before using proprietary information or documents in a legal or regulatory

 BISHCA stated that this exemption provides confidentiality for certain information filed by risk retention groups with the department, although final examination reports are not considered confidential. Risk retention groups are governed by the Liability Risk Retention Ac of 1986, codified at 15 U.S.C. §3901 et seq.

proceeding that does not involve the applicant or any person named in the application or any amendment thereto, the commissioner shall first seek to obtain the same information from nonconfidential sources. If unavailable from nonconfidential sources, the commissioner shall seek to protect the confidential information or documents from unnecessary disclosure. Upon licensing, the commissioner shall forward to the national association of insurance commissioners all information required under RRA 1986 to be submitted to each state where the risk retention group proposes to operate and all other information not deemed confidential under this section. Providing notification to the national association of insurance commissioners is in addition to and shall not be sufficient to satisfy the requirements of § 6053 or any other sections of this chapter.

73.

8 V.S.A. § 6074 BISHCA; examination reports of risk retention groups (1993)

(b) All examination reports, work papers, recorded information, documents and copies thereof produced by, obtained by or disclosed to the commissioner or any other person in the course of an examination made under this section are confidential and are not subject to subpoena and may not be made public by the commissioner or any other person, except as otherwise provided in this section. The commissioner is authorized to use and make public any report, work paper or other documents, or any other information discovered or developed during the course of any examination conducted pursuant to this section in the furtherance of any legal or regulatory action.

 BISHCA stated that this exemption extends confidentiality protections from examination reports, workpapers and related materials obtained or produced in the course of an examination of risk retention agents licensed by the department under Chapter 142A of Title A

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74.

75.

Statutory Citation & Year Enacted 8 V.S.A. § 7041(e) BISHCA; insurer hearings (1991)

8 V.S.A. § 7043 BISHCA; confidentiality of insurance delinquency hearings (1991)

Exemption

Use, Justification, and Requested Clarification of Exemption

Hearings under subsection (a) of this section shall be private and shall not be subject to the provisions of subchapters 2 and 3 of chapter 5, Title 1, unless the insurer requests a public hearing.

 BISHCA stated that the commissioner is charged with the responsibility of assuring the continued solvency of domestic insurance companies, and it is a chief responsibility of the department to monitor the financial condition and operation of these companies to assure policyholders and others that they can rely on the policies and guarantees of these companies. In the event that the commissioner has reason to believe that a company may be financially distressed or approaching insolvency, it is necessary that he take immediate steps to protect and secure company assets. The confidentiality provisions reflected in section 7041(e) are part of the multi-state approach in insurance regulation, and serves to further the confidence of policyholders and insureds in the integrity and soundness of the companies subject to regulation, because it allows the department and company to explore the commissioner’s concerns without concern that public disclosure will do irreparable harm to the company and to the assets that may be brought under the commissioner’s control in a receivership action.  BISHCA stated that consistent with the principles of Ch. 145, all records and proceedings associated with exercise of the commissioner’s summary orders and/or application to court for an order seizing an insurer, all matters relating to the proceeding are held in strictest confidence to protect the interests of policyholders, insureds and creditors.

Administrative and judicial proceedings under sections 7041 and 7042 of this title, all records of the insurer, other documents, and all department files and court records and papers, so far as they pertain to or are a part of the record of the proceedings, shall be and remain confidential except as is necessary to obtain compliance with orders of the commissioner or the court, unless the superior court of Washington County, after privately hearing arguments from the parties in chambers, shall order otherwise; or unless the insurer requests that the matter be made public. Until a court order permitting the matter to be made public issues, or the issuer requests that the matter be made public, all papers filed with the superior court of Washington county shall be held in a confidential file.

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76.

77.

Statutory Citation & Year Enacted 8 V.S.A. § 8010 BISHCA; continuing care retirement community records (1987)

8 V.S.A. §8308 BISHCA; risk based capital reports (1993)

Exemption

Use, Justification, and Requested Clarification of Exemption

(a) A provider shall maintain financial records for the facility, including independently audited financial statements, and copies of all inspection reports pertaining to that facility that have been issued by any governmental agency and filed with the provider. A copy of each such report shall be retained in the facility’s records for not less than five years from the date the report is filed or issued. Each facility shall also maintain all annual reports and statements that have been filed with the department or any state, local or federal agency. The records and information required to be maintained under this section shall be available for review upon request by residents and applicants during normal business hours. Copies of these documents will be provided for a reasonable copying fee. (b) Notwithstanding the provisions of subsection (a) of this section, records, reports or documents, which by state or federal law or regulation are deemed confidential, shall not be distributed or made available until such confidential status has expired. (c) Every provider shall prepare a summary of the most recent audited financial statement, indicating in the summary where the contents of the complete statement may be inspected. A copy of the statement shall be maintained at the facility and a copy of the summary shall be prominently displayed in the facility. (d) Proposed changes in policies, programs and services shall be posted, and explained to residents. (e) Before entering into a contract to furnish continuing care, the provider, or the agent of the provider, shall provide the prospective resident or his or her legal representative with the following information: (1) a copy of the continuing care contract form; (2) a summary of the provider’s most recent annual financial statement; and (3) such additional information as may be required by the department.

 BISHCA stated that the department is responsible for the regulation of continuing care retirement communities. This provision confirms that despite record keeping requirements and provisions making reports and financial records open and available to residents and applicants, all confidentiality provisions existing in state and federal law still apply to the materials that the facility must maintain. This provision does not impose additional confidentiality restrictions on the department.

(a) All risk based capital reports (to the extent the information therein is not required to be set forth in a publicly available annual statement schedule) and risk based capital plans (including the results or report of any examination or analysis of an insurer performed pursuant hereto and any corrective order issued by the commissioner pursuant to examination or analysis) with respect to any domestic insurer or foreign insurer which are filed with the commissioner, constitute information that might be damaging to the insurer if made available to its competitors, and therefore shall be kept confidential by the commissioner. This information shall not be made public nor shall it be subject to subpoena, other than by the commissioner and then only for the purpose of enforcement

 BISHCA stated that information included in certain reports relating to risk based capital, a regulatory tool for assessing financial strength, may be damaging to an insurer if made available to competitors. This provision recognizes that all risk based capital reports and plans filed with the commissioner shall be kept confidential. Similarly, reports received from other states or the NAIC are also afforded confidentiality due to the sensitive nature of the financial analysis. See 8 V.S.A. § 8312. VT LEG 207892.v1

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Exemption

Use, Justification, and Requested Clarification of Exemption

actions taken by the commissioner pursuant to this chapter or any other provision of the insurance laws of this state. (b) Except as otherwise required under this chapter, the making, publishing, disseminating, circulating or placing before the public, directly or indirectly in any manner, the risk based capital levels of any insurer, or of any component derived in the calculation, by any insurer, agent, broker or other person engaged in any manner in the insurance business is prohibited. Any person violating this section shall be subject to an administrative penalty of up to $500.00. (c) The commissioner may, in his or her discretion, permit the correction of any material misstatement published by a party unrelated to the insurer concerning any aspect of the insurer's risk based capital level or any component thereof. A correction permitted under this section may be used solely to rebut the material misstatement.

78.

9 V.S.A. § 2440 Social Security numbers (2006)

(d) Except as provided in subsection (e) of this section, the state and any state agency, political subdivision of the state, and agent or employee of the state, a state agency, or a political subdivision of the state, may not do any of the following: (1) Collect a Social Security number from an individual unless authorized or required by law, state or federal regulation, or grant agreement to do so or unless the collection of the Social Security number or records containing the Social Security number is related to the performance of that agency’s duties and responsibilities as prescribed by law.

 ACCD stated that it uses this exemption since it contains social security numbers on application for tax credits and contract documents.  This exemption is likely to be relied upon by the agency of human services and its various parts as SSNs are used to identify individual clients. DCF, Economic Services Division, and Office of Child Support, as well as OVHA, possess records containing SSNs.

***

(e) Subsection (d) of this section does not apply to: (1) Social Security numbers disclosed to another governmental entity or its agents, employees, contractors, grantees, or grantors of a governmental entity if disclosure is necessary for the receiving entity to perform its duties and responsibilities. The receiving governmental entity and its agents, employees, and contractors shall maintain the confidential and exempt status of such numbers. As used in this subsection, “necessary” means reasonably needed to promote the efficient, accurate, or economical conduct of an entity’s duties and responsibilities. (see statute for full text and applicability)

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79.

Statutory Citation & Year Enacted 9 V.S.A. § 4113(b) DPS; petroleum storage facility reports (1979)

80.

9 V.S.A. § 4235 BISHCA; securities (1947)

81.

9 V.S.A. § 4555 Human rights commission (HRC); complaint and investigation files (1995)

Exemption

Use, Justification, and Requested Clarification of Exemption

Reports filed pursuant to this section [petroleum storage facilities] shall be an exempt record and confidential pursuant to subdivision (1) of subsection (b) of section 317 of Title 1 and shall be maintained for the sole and confidential use of the commissioner, except that the reports may be disclosed to the federal government or to the appropriate energy agency or department of another state with substantially similar confidentiality statutes for regulations with respect to such reports. However, the commissioner shall make available to appropriate committees of the general assembly statistical information derived from the reports required by this section, provided that this may be done in a manner which preserves the confidentiality of the reports submitted by particular persons. All information received by the commissioner under this chapter [securities act] relative to securities, issuers, broker-dealers, sales representatives, investment advisers, and investment adviser representatives shall be open to public inspection whenever it appears to the commissioner that such inspection may assist in carrying out or furthering the purposes of this chapter. However, the commissioner may withhold any such information which, in justice to the person filing the same, the commissioner deems should not be made public. The commissioner may publish in such form as the commissioner deems best any information regarding securities which the commissioner considers fraudulent or which are being sold in violation of this chapter or any other information the commissioner deems necessary or helpful in connection with the enforcement of this chapter. (a) The human rights commission’s complaint files and investigative files shall be confidential except that the human rights commission shall make the investigative file available to the charging party, the respondent , their attorneys, and any state or federal law enforcement agency seeking to enforce anti-discrimination statutes, upon reasonable request. The identities of nonparty witnesses to the investigation may be revealed as part of the investigative file, upon request, unless good cause is shown to protect the witness’ confidentiality. (b) Nothing said or done as part of conciliation efforts under this chapter may be made a matter of public record or used as evidence in a subsequent civil action without written consent of the parties. Final settlement agreements shall be public documents and the parties shall be so informed.

 DHR stated that the HRC has the power to issue subpoenas and order the production of records that are protected by the various records exemptions, but the HRC files are made available to non-state parties without any duty of confidentiality for those parties. As a result, otherwise confidential information exempt from public records disclosure, that has not been ordered disclosed by a court, is no longer confidential. It would be appropriate to require the HRC to respect the bases of confidentiality in statute when making reports available to parties and attorneys pursuant to this statute.  Dept. of public safety stated that it uses this exemption. As a respondent in a human rights commission compliant, the department is entitled to the commission’s investigative file, which is confidential. VT LEG 207892.v1

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82.

Statutory Citation & Year Enacted 9 V.S.A. § 5607 BISHCA; securities records (2005)

Exemption

Use, Justification, and Requested Clarification of Exemption

(a) Except as otherwise provided in subsection (b) of this section, records obtained by the commissioner or filed under this chapter, including a record contained in or filed with a registration statement, application, notice filing, or report, are public records and are available for public examination. (b) The following records are not public records and are not available for public examination under subsection (a) of this section: (1) a record obtained by the commissioner in connection with an audit or inspection under subsection 5411(d) of this chapter or an investigation under section 5602 of this chapter; (2) a part of a record filed in connection with a registration statement under sections 5301 and 5303 through 5305 of this chapter or a record under subsection 5411(d) of this chapter that contains trade secrets or confidential information if the person filing the registration statement or report has asserted a claim of confidentiality or privilege that is authorized by law; (3) a record that is not required to be provided to the commissioner or filed under this chapter and is provided to the commissioner only on the condition that the record will not be subject to public examination or disclosure; (4) a nonpublic record received from a person specified in subsection 5608(a) of this chapter; (5) any Social Security number, residential address unless used as a business address, and residential telephone number unless used as a business telephone number, contained in a record that is filed; (6) a record obtained by the commissioner through a designee of the commissioner that a rule or order under this chapter determines has been: (A) expunged from the commissioner's records by the designee; or (B) determined to be nonpublic or nondisclosable by that designee if the commissioner finds the determination to be in the public interest and for the protection of investors; and (7) records otherwise exempt from public disclosure pursuant to 1 V.S.A. § 317(c). (c) If disclosure is for the purpose of a civil, administrative, or criminal investigation, action, or proceeding or to a person specified in subsection 5608(a) of this chapter, the commissioner may disclose a record obtained in connection with an audit or inspection under subsection 5411(d) of this chapter or a record obtained in connection with an investigation under section 5602 of this chapter

 BISHCA stated that this exemption provides the commissioner with the specific authority to receive and maintain records shared with the division on condition of continued confidentiality in connection with filings or investigations, provided by other agencies (9 V.S.A. §5608) or other protected personal information such as social security numbers. For reasons similar to those expressed in connection with the confidentiality extended to banking division examinations and investigations, this provision provides essential protection for records obtained in the course of examinations and investigations, unless for purposes of a civil, administrative, or criminal investigation by another regulator or in the context of an enforcement proceeding. The securities division also is granted authority to maintain confidential information provided in registration statements; submissions to the commissioner premised on the commissioner's agreement to maintain confidentiality ; nonpublic records obtained from other regulatory agencies; Social Security numbers and residential addresses and other records obtained through designees, such as the electronic database, the central registration depository ("CRD"). Other than an explicit reference to the Title 1 exemptions, all of these exemptions were drawn from a model uniform law for state securities regulators, drafted by the National Conference of Commissioners on Uniform State Laws, the 2002 Uniform Securities Act. This provision was formerly codified at 9 V.S.A. §4235.

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83.

Statutory Citation & Year Enacted 10 V.S.A. § 7(b) Economic development; 90-day confidentiality for benchmark reports (1995)

Exemption

Each economic development recipient shall state, on a form approved by the agency granting assistance, or awarding a tax credit or abatement, or approving any other form of economic development assistance, the number of new jobs that will be created or existing jobs that will be retained as a result of such assistance, the wages and employee benefits associated with such jobs, and a description of any other public benefits associated with such economic development assistance. Such statement shall be made prior to any such grant, award, or approval. Such statements and the information contained therein shall not be available for public inspection until 90 days after the granting of assistance, or the awarding of a tax credit or abatement, or the approving any other form of economic development assistance or incentive. After the expiration of such 90 day period such statements and information shall not be considered confidential, and may be inspected and copied pursuant to subchapter 3, chapter 5 of Title 1 (public records law), notwithstanding the provisions of any other law.

84.

10 V.S.A. § 32 World trade office (1995)

The world trade office approved by the secretary under this chapter shall not be subject to the provisions of subchapter 2 (open meetings), or subchapter 3 (public records) of chapter 5 of Title 1.

85.

10 V.S.A. § 101 Mineral records

(6) Maintain records of old and new information relating to the geology, mineral resources and topography of the state and make public new information resulting from research and field studies conducted by or for the division. Certain information provided by the mineral industries of the state may be held in confidential status at the industries’ request and used only for purposes and in a manner permitted by the industry.

86.

10 V.S.A. § 123 Vermont center for geographic information (19?)

Use, Justification, and Requested Clarification of Exemption  ACCD stated that the exemption is applicable to the agency, the department of economic development, and the department of housing and community affairs.

 ANR stated that it uses this exemption (e.g., use by state geologist).

(e) The center shall be subject to the provisions of 1 V.S.A. §§ 312-314 with respect to the right of the public to receive notice of and attend meetings, 1 V.S.A. §§ 315-320 with respect to the access of the public to its records and documents, and 1 V.S.A. § 172 regarding joint authority of the board.

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87.

Statutory Citation & Year Enacted 10 V.S.A. § 563 ANR; air contaminant source reports (1967)

Exemption

Use, Justification, and Requested Clarification of Exemption

Confidential records. Any records or other information furnished to or obtained by the secretary concerning one or more air contaminant sources, which records or information, as certified by the owner or operator, relate to production or sales figures or to processes or production unique to the owner or operator or which would tend to affect adversely the competitive position of the owner or operator, shall be only for the confidential use of the secretary in the administration of this chapter, unless the owner or operator shall expressly agree to their publication or availability to the general public. Nothing herein shall be construed to prevent the use of the records or information by the secretary in compiling or publishing analyses of summaries relating to the general condition of the outdoor atmosphere: provided that the analyses or summaries do not identify any owner or operator or reveal any information otherwise confidential under this section.

 ANR stated that it uses this exemption, (confidential business information in applications for air pollution control permits).

88.

10 V.S.A. § 1259(b) ANR; water pollution control permits (1973)

Any records, reports or information obtained under this permit program shall be available to the public for inspection and copying. However, upon a showing satisfactory to the secretary that any records, reports or information or part thereof, other than effluent data, would, if made public, divulge methods or processes entitled to protection as trade secrets, the secretary shall treat and protect those records, reports or information as confidential. Any records, reports or information accorded confidential treatment will be disclosed to authorized representatives of the state and the United States when relevant to any proceedings under this chapter.

 ANR stated that it uses this exemption, (trade secret information in connection with water pollution control permits).

89.

10 V.S.A. § 5410 ANR; location of endangered species (1995)

All information regarding the location of endangered species sites shall be kept confidential in perpetuity except that the secretary shall disclose this information to the owner of land upon which the species has been located, or to a potential buyer who has a bona fide contract to buy the land and applies to the secretary for disclosure of endangered species information, and to qualified individuals or organizations, public agencies and nonprofit organizations for scientific research or for preservation and planning purposes when the secretary determines that the preservation of the species is not further endangered by the disclosure.

 ANR stated that it uses this exemption, (location of endangered species).

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90.

Statutory Citation & Year Enacted 10 V.S.A. § 6628(a) ANR; toxic use and hazardous waste reduction plan (1991)

Exemption

Except as provided for in this section, a toxics use reduction and hazardous waste reduction plan developed under this subchapter shall be retained at the facility and is not a public record under 1 V.S.A. § 317. If a person developing a toxics use reduction and hazardous waste reduction plan under this chapter chooses to send all or a portion of the plan to the secretary for review, it still shall not be a public record under 1 V.S.A. § 317. A plan summary submitted pursuant to section 6629 of this title shall be submitted to the secretary and shall be a public record.

91.

10 V.S.A. § 6632 Hazardous waste generator trade secrets (1989)

The secretary shall adopt rules to ensure that trade secrets designated by a generator in all or a portion of the review and plans, and the report required by this subchapter, are utilized by the secretary or the department only in connection with the responsibilities of the department pursuant to this subchapter, and that those trade secrets are not otherwise disseminated by the secretary, the department, or any authorized representative of the department. The rules shall provide that a generator may only designate as trade secrets those that satisfy the criteria for trade secrets set forth in 18 V.S.A. § 1728(a).

92.

11 V.S.A. § 3058(g) Member-owned limited liability companies; right to information (1995)

The managers [of member owned LLCs] shall have the right to keep confidential from members who are not managers, for such period of time as the managers deem reasonable, any information which the managers reasonably believe to be in the nature of trade secrets or other information the disclosure of which the managers in good faith believe is not in the best interest of the company.

93.

12 V.S.A. § 1612 Court procedure; health records; patients’ privileged personal medical information (1973)

Confidential information privileged. Unless the patient waives the privilege or unless the privilege is waived by an express provision of law, a person authorized to practice medicine, chiropractic or dentistry, a registered professional or licensed practical nurse, or a mental health professional as defined in 18 V.S.A. § 7101(13) shall not be allowed to disclose any information acquired in attending a patient in a professional capacity, including joint or group counseling sessions, and which was necessary to enable the provider to act in that capacity.

Use, Justification, and Requested Clarification of Exemption  ANR stated that it uses this exemption, (toxics use reduction and hazardous waste reduction plans).

 ANR stated that it uses this exemption (trade secrets contained in toxics use reduction and hazardous waste reduction plans).

 Department of children and families invokes this exemption.  VDH stated that the mental health division asserted this exemption, as do other departments within the agency. This exemption may arise when VDH receives a subpoena in a criminal prosecution for patient records.  12 V.S.A. § 1612 protects medical information from disclosure. This exemption would apply to a variety of AHS departments, divisions, and offices that collect and retain medical records for a variety of purposes, including treatment, payment, and health care operations. Such information is traditionally considered confidential and is carefully protected from disclosure under federal law. VT LEG 207892.v1

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94.

Statutory Citation & Year Enacted 12 V.S.A. § 1613 Court procedure; lawyercorporate client privilege (1993)

95.

12 V.S.A. § 1614 Court procedure; victim and crisis worker privilege (1993)

96.

12 V.S.A. § 1705 Court procedure; HIVrelated testing information (1987)

Exemption

Communications otherwise privileged under Rule 502 of the Vermont Rules of Evidence are privileged with respect to a corporation only if the representative client is a member of the control group of the corporation, acting in his or her official capacity. However, if the communications are with a representative client who is not a member of the control group, such communications are privileged only to the extent necessary to effectuate legal representation of the corporation. A victim receiving direct services from a crisis worker has the privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made by the victim to the crisis worker, including any record made in the course of providing support, counseling or assistance to the victim. The crisis worker shall be presumed to have authority to claim the privilege but only on behalf of the victim. (a) No court of this state shall issue an order requiring the disclosure of individually-identifiable HIV-related testing or counseling information unless the court finds that the person seeking the information has demonstrated a compelling need for it that cannot be accommodated by other means. In assessing compelling need the court shall weigh the need for disclosure against the privacy interest of the test subject and the public interest which may be disserved by disclosure which deters future testing or which may lead to discrimination. (b) Pleadings pertaining to disclosure of HIV-related testing and counseling information shall substitute a pseudonym for the true name of the subject of the test. The subject’s true name shall be communicated confidentially to the court and those parties who have a compelling need to know the subject’s true name. All documents filed with the court which identify the subject’s true name shall not be disclosed to any person other than those parties who have a compelling need to know the subject’s true name and the subject of the test. All such documents shall be sealed upon the conclusion of proceedings under this section. *** (d) Court proceedings as to disclosure of counseling and testing information shall be conducted in camera unless the subject of the test agrees to a hearing in open court or unless the court determines that a public hearing is necessary to the public interest and the proper administration of justice. (e) Upon issuance of an order to disclose test results, the court shall impose appropriate safeguards against unauthorized disclosure, which shall specify the persons who may have access to the information, the purposes for which the information shall be used, and appropriate prohibitions on future disclosure.

Use, Justification, and Requested Clarification of Exemption  DCF stated that it invokes this exemption.

 Agency of human services stated that it invokes this exemption. AHS also stated that this is a widely used exemption that applies to all agencies. This privilege may apply to information that has been shared with AHS or its departments, divisions, or offices.

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97.

Statutory Citation & Year Enacted 12 V.S.A. § 7106 Court procedure; youth court proceedings (1995)

Exemption

Use, Justification, and Requested Clarification of Exemption

All proceedings and records of the youth court are subject to the same rules governing the confidentiality of court diversion matters, and all participants in youth court proceedings shall maintain that confidentiality. All records of youth court proceedings shall remain the property of court diversion.

 Dept. of public safety stated that it uses this exemption to the extent that the Windsor Youth Court is utilized; Vermont State Police affidavits are likely to be part of the records.

98.

12 V.S.A. § 7108 Court procedure; youth court audio recordings (1995)

An audio recording shall be made of all proceedings of the youth court. The audio recording shall be subject to the same confidentiality criteria as other court diversion matters.

99.

13 V.S.A. § 3504(g) Reporting of illnesses and diseases associated with weapons of mass destruction (2001)

(g) Disclosure. Information collected pursuant to this section and in support of investigations and studies undertaken by the commissioner in response to reports made pursuant to this section shall be privileged and confidential. This subsection shall not apply to the disclosure of information to a law enforcement agency for a legitimate law enforcement purpose.

 VDH, division of public health, as a part of its oversight duties, is required to collect this information and to enforce certain activities pursuant to 13 VSA § 3504 and as provided elsewhere.  Dept. of public safety stated that it uses this exemption to the extent that the Vermont State Police obtains information under this section or that the commissioner of public safety obtains information under subsection 3504(h).

100.

13 V.S.A. § 5305(a) Criminal procedure; information concerning release from confinement; addresses and telephone numbers of victims (1985)

Victims, other than victims of acts of delinquency, and affected persons shall have the right to request notification by the agency having custody of the defendant before the defendant is released, including a release on bail or conditions of release, furlough or other community program, or whenever the defendant escapes, is recaptured, dies, or receives a pardon or commutation of sentence. Notice shall be given to the victim or affected person as expeditiously as possible at the address or telephone number provided to the agency having custody of the defendant by the person requesting notice. Any address or telephone number so provided shall be kept confidential.

 The department of corrections invokes exemption 1 V.S.A. § 317(c)(1) as confidential information for addresses and/or telephone numbers provided by victims and affected persons in order to notify such victims or affected persons of the release of a defendant.

101.

13 V.S.A. § 5402 Criminal procedure; sex offender registry; victim’s name (1995)

The identity of a victim of an offense that requires registration shall not be released.

 Department of corrections would invoke this exemption to protect victims of sexual offenses by keeping their identities confidential.  Dept. of public safety stated that it uses this exemption VT LEG 207892.v1

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102.

Statutory Citation & Year Enacted 14 V.S.A. § 2 Wills (1947)

Exemption

Use, Justification, and Requested Clarification of Exemption

(b) Each will so deposited shall be enclosed in a sealed wrapper having inscribed thereon the name and residence of the testator, the day when and the person by whom it was deposited, and the wrapper may also have indorsed thereon the name of the person to whom the will is to be delivered after the death of the testator. The wrapper shall not be opened until it is delivered to a person entitled to receive it or until otherwise disposed of as hereinafter provided.

103.

14 V.S.A. § 3068(e) DAIL; guardianship hearing for mentally disabled person

(e) If upon completion of the hearing and consideration of the record the court finds that the respondent is not mentally disabled, it shall dismiss the petition and seal the records of the proceeding.

 Department of disabilities, aging and independent living stated that is asserts this exemption.

104.

15 V.S.A. § 307(a) Domestic relations; voluntary acknowledgment of parentage (1993)

(a) In any case in which the parents of a child are not married, parents of the child may acknowledge parentage by filling out and signing a Voluntary Acknowledgment of Parentage form prescribed and made available by the department of health and by filing the form with the department of health. The Voluntary Acknowledgment of Parentage form shall be confidential and shall include the parents’ mailing addresses and Social Security numbers, instructions for filing the form with the department of health, information concerning the legal implications of completing the form, including the procedure for establishing parentage, parental rights and responsibilities and child support obligations

 The VDH stated that the division of public health maintains acknowledgement of parentage forms that include identifiers, including SSNs, and other protected information.  OCS stated that OCS files contain voluntary acknowledgements of parentage; these acknowledgements appear within individual files.

***

(c) The department of health shall only make the completed Voluntary Acknowledgment of Parentage form available to the parties who signed it and the office of child support. The office of child support shall not have access to the form except for the purpose of initiating a parentage or support proceeding on behalf of a dependent child as defined in section 3901(4) of Title 33, in which case the department of health shall make available to the office of child support upon explicit request, the appropriate information. *** (e) In an action brought under this chapter, documents on file with the court that contain the Social Security number of the parties shall be released only to the parties or the state if it is involved in the matter.

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105.

Statutory Citation & Year Enacted 15 V.S.A. § 788 Domestic relations office of child support; parent information (1997)

Exemption

(a) Any parent subject to a child support or parental rights and responsibilities order shall notify in writing the court which issued the most recent order and the office of child support of his or her current mailing address and current residence address and of any change in either address within seven days of the change, until all obligations to pay support or support arrearages, or to provide for parental rights and responsibilities are satisfied. For good cause the court may keep information provided under this subsection confidential. (b) When a wage withholding order is in effect, either parent shall notify in writing the registry of the name and address of a new employer within seven days of commencing new employment. If the registry has received information that a parent has changed employment it shall notify the other parent of the fact of the change but shall not disclose the identity or the location of the employer. On request of a parent, the registry shall provide information on the other parent’s wages. (c) In all cases in which a temporary or final order for relief from abuse has been entered, information provided under this section shall be kept confidential by the court. The court, for good cause shown, may release such information.

106.

15 V.S.A. § 1140 Domestic violence fatality review commission; proceedings (2001)

(d) The proceedings and records of the commission are confidential and are not subject to subpoena, discovery or introduction into evidence in a civil or criminal action. The commission shall disclose conclusions and recommendations upon request, but may not disclose information, records or data that are otherwise confidential, such as autopsy records. The commission shall not use the information, records or data for purposes other than those designated by subsections (a) and (g) of this section.

107.

15 V.S.A. § 1152 Address confidentiality program (1999)

(a) An adult person, a parent or legal guardian acting on behalf of a minor, or a legal guardian acting on behalf of an incapacitated person, may apply to the secretary of state to have an address designated by the secretary serve as the person’s address or the address of the minor or incapacitated person. The secretary of state shall approve an application if it is filed in the manner and on the form prescribed by the secretary of state, and if it contains: (1) a statement made under oath by the applicant that: (A) the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of domestic violence, sexual assault, or stalking; (B) the applicant fears for his or her safety or his or her children’s safety, or the safety of the minor or incapacitated person on whose behalf the application is

Use, Justification, and Requested Clarification of Exemption  OCS stated that it asserts this exemption.

 Department for children and families invokes this privilege.  The department of corrections could assert this exemption. The commissioner of corrections, along with other departmental commissioners in AHS, is a member of the fatality review commission.  VDH stated that it could assert this exemption because the commissioner of the department of health is a member of the fatality review commission.  Dept. of public safety stated that it uses this exemption

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Exemption

Use, Justification, and Requested Clarification of Exemption

made; (c) the parent or legal guardian applying on behalf of a minor or incapacitated person has legal authority to act on the person’s behalf; (D) if the applicant is under the supervision of the department of corrections, the applicant has notified the department of the actual address and the applicant authorizes the release of the actual address to the department; and (E) if the applicant is required to report the actual address for the sex offender registry under subchapter 3 of chapter 167 of Title 13, the applicant authorizes the release of the actual address to the registry; (2) a designation of the secretary as agent for purposes of service of process and for the purpose of receipt of mail; (3) the mailing address where the applicant can be contacted by the secretary and the phone number or numbers where the applicant can be called by the secretary; (4) the new address or addresses that the applicant requests not be disclosed for the reason that disclosure will increase the risk of domestic violence, sexual assault or stalking; (5) the signature of the applicant and the name of any individual or representative of any office who assisted in the preparation of the application and the date on which the applicant signed the application. (b) Applications shall be filed with the office of the secretary. (c) Upon receipt of a properly completed application, the secretary shall certify the applicant as a program participant. Applicants shall be certified for four years following the date of filing, unless the certification is withdrawn or cancelled before that date. The secretary shall by rule establish a renewal procedure. (d) A person who knowingly provides false or incorrect information to the secretary as required by this chapter may be prosecuted under section 2904 of Title 13. (e) A program participant shall notify the secretary of state of a change of actual address within seven days of the change of address. 108.

15 V.S.A. § 1155 Disclosure of information in address confidentiality program (1999)

(a) The secretary of state may not make a program participant’s address, other than the address designated by the secretary, available for inspection or copying, except under the following circumstances: (1) if requested by a law enforcement agency for a law enforcement purpose as defined in subdivision 1151(5) of this title; or (2) if directed by a court order to a person identified in the order; or (3) to verify the participation of a specific program participant, in which case

 DMV uses this exemption when issuing a license or registration to a program participant.

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Exemption

Use, Justification, and Requested Clarification of Exemption

the secretary may only confirm information supplied by the requester. (b) The secretary shall ensure by rule that: (1) when a law enforcement agency determines it has an immediate need for a participant’s actual address, disclosure of the address shall occur immediately; and (2) in other circumstances, there is an expedited process for disclosure. (c) The secretary may request that an agency review its disclosure requests to determine whether such requests were appropriate. (d) The secretary shall provide immediate notification of disclosure to a program participant when disclosure takes place under subdivisions (a)(2) and (3) of this section. (e)(1) No person shall knowingly and intentionally obtain a program participant’s actual address from the secretary knowing that he or she was not authorized to obtain the address information. (2) No employee of a state, local, or municipal agency or sheriff’s department shall knowingly and intentionally disclose, with the intent to disseminate to the individual from whom the program participant is seeking address confidentiality, a participant’s actual address to a person known to the employee to be prohibited from receiving the participant’s actual address, unless such disclosure is permissible by law. This subdivision is only intended to apply when an employee obtains a participant’s actual address during the course of the employee’s official duties and, at the time of disclosure, the employee has specific knowledge that the address disclosed belongs to a person who is participating in the program. (3) Nothing in this chapter shall prohibit an agency or agency employee from disclosing or providing a participant’s actual address to an agency attorney providing advice to an agency or agency employee, nor shall any agency attorney be prohibited, except as set forth in section 1156 of this title, from disclosing a participant’s actual address to other

law enforcement employees, other agency attorneys, paralegals, or their support staff, if disclosure is related to providing such advice or to the agency attorney’s representation of the agency or agency employee. In the case of law enforcement, agency attorneys shall also include the attorneys in the office of the state’s attorneys, attorney general and the United States attorney. An attorney, during the course of providing advice to another person or agency, shall not be subject to the provisions set forth in subdivisions 1155(e)(1) and (2) of this title, nor shall any actionable duty arise from giving such advice. (4) A person who violates subdivisions (1) or (2) of this subsection shall be assessed a civil penalty of not more than $5,000.00. Each unauthorized disclosure shall constitute a separate civil violation. Nothing in this subdivision shall preclude criminal prosecution for a violation. VT LEG 207892.v1

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109.

Statutory Citation & Year Enacted 15A V.S.A. § 2-105(d) Adoption; adoption reports ; background information (1995)

Exemption

Use, Justification, and Requested Clarification of Exemption

A report furnished under this section shall indicate who prepared the report and, unless confidentiality has been waived, shall be edited by the person who prepared the report to exclude the identity of any person who furnished information or about whom information is reported.

 DCF stated that it asserts this exemption.

110.

15A V.S.A. § 6-102 Adoption; adoption records (1995)

(a) All records on file with the court or in the possession of an agency, the department of health, the registry or other provider of professional services in connection with an adoption are confidential and may not be inspected except as provided in this title. (b) During a proceeding for adoption, records are not open to inspection except as directed by the court. (c) Within 30 days after a decree of adoption becomes final, the register of the probate court or the clerk of the family court shall send to the registry a copy of any document signed pursuant to section 2-105 of this title. (d) All records on file with the court or agency shall be retained permanently and sealed for 99 years after the date of the adoptee’s birth. Sealed records and indices are not open to inspection by any person except as provided in this title. (e) The records of an agency which ceases operation in this state shall be transferred to the department for retention under the provisions of this title.

 DCF stated that it asserts this exemption.

111.

15A V.S.A. § 6-104 Release of nonidentifying information regarding adoption (1995)

(b) Upon request by a person listed in subdivision (a)(1) of this section, the court that heard the adoption petition, the agency that placed the adoptee for adoption, or other person who assisted in the adoption shall furnish a detailed summary of any relevant report or information contained in confidential reports in their possession about the adoptee, the adoptee’s former parents and the adoptee’s genetic history, including the information required by section 2-105 of this title. This report shall exclude identifying information concerning an individual who has not signed a waiver of confidentiality.

 DCF stated that it asserts this exemption.

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112.

Statutory Citation & Year Enacted 15A V.S.A. § 6-106 Adoption; request of former parent for nondisclosure (1995)

Exemption

Use, Justification, and Requested Clarification of Exemption

A former parent of an adoptee may prevent disclosure of identifying information about himself or herself by filing a request for nondisclosure with the registry as provided in section 6-105 of this title. A request for nondisclosure may be withdrawn by a former parent at any time.

113.

15B V.S.A. § 312 Family Support Act; disclosure of identifying information (1997)

Upon a finding, which may be made ex parte, that the health, safety, or liberty of a party or child would be unreasonably put at risk by the disclosure of identifying information, or if an existing order so provides, a tribunal shall order that the address and other identifying information of the child or party not be disclosed in a pleading or other document filed in a proceeding under this title.

 OCS stated that it asserts this exemption. Many of the requests for court action pursuant to the Uniform Interstate Family Support Act arrive first at OCS. A request for a non-disclosure order pursuant to 15B VSA § 312 is received first at OCS.

114.

16 V.S.A. § 251 Education; criminal background checks (1997)

It is the policy of the state of Vermont to use criminal record checks to deter abuse and exploitation of school children and to do so in a manner that protects, as much as is practicable, the privacy of those subject to such checks.

 Dept. of public safety stated that it uses this exemption.

115.

16 V.S.A. § 253 Education; access to criminal records of school employees and applicants (1997)

Criminal records and criminal record information received under this subchapter are designated confidential unless, under state or federal law or regulation, the record or information may be disclosed to specifically designated persons.

 Dept. of public safety stated that it uses this exemption.

116.

16 V.S.A. § 2843(d) Education; applications for need-based incentive grants (1967)

Except as otherwise provided in this subchapter or other applicable law or court order, or by agreement of the applicant, certificates and reports made to the corporation under this section shall be confidential, and it shall be unlawful for anyone to divulge the amount of income or any particulars set forth in a certificate or any report made to an applicant or the corporation. Nothing herein shall be construed to prevent the publication of statistical data as long as the identification of particular individuals, certificates, and reports is prevented.

117.

18 V.S.A. § 154 Health; cancer registry (1993)

(a) All information reported pursuant to this chapter shall be confidential and privileged. The commissioner shall take strict measures to ensure that all identifying information is kept confidential. (b) All identifying information regarding an individual patient, health care provider, or health care facility contained in records of interviews, written reports and statements procured by the commissioner or by any other person,

 VDH stated that it has asserted this exemption. This exemption is needed to ensure protection of medical information.

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Exemption

Use, Justification, and Requested Clarification of Exemption

agency or organization acting jointly with the commissioner in connection with cancer morbidity and mortality studies shall be confidential and privileged and shall be used solely for the purposes of the study. Nothing in this section shall prevent the commissioner from publishing statistical compilations relating to morbidity and mortality studies which do not identify individual cases or sources of information. 118.

18 V.S.A. § 155 Health; disclosure of cancer registry (1993)

(a) The commissioner may enter into agreements to exchange confidential information with other cancer registries in order to obtain complete reports of Vermont residents diagnosed or treated in other states and to provide information to other states regarding their residents diagnosed or treated in Vermont. (b) The commissioner may furnish confidential information to other states’ cancer registries, federal cancer control agencies, or health researchers in order to collaborate in a national cancer registry or to collaborate in cancer control and prevention research studies. However, before releasing confidential information, the commissioner shall first obtain from such state registries, agencies, or researchers agreement in writing to keep the identifying information confidential and privileged. In the case of researchers, the commissioner shall also first obtain evidence of the approval of their academic committee for the protection of human subjects established in accordance with part 46 of Title 45 of the Code of Federal Regulations.

119.

18 V.S.A. § 157 Health; mammography registry (1993)

The confidentiality, disclosure, and liability provisions of sections 154, 155 and 156 of this title shall likewise apply to all mammography and pathology data relating to breast cancer and any associated identifying information acquired by the Vermont mammography registry (VMR). In the case of VMR, the rights and obligations of the health commissioner shall be assumed by the appropriate VMR governing body or official.

120.

18 V.S.A. § 1001 Health; reports of communicable diseases (1979)

(a) When a physician, health care provider, administrator of a hospital, health care facility, health maintenance organization or managed care organization, or the administrator’s designee, town health officer, nurse practitioner, nurse, physician’s assistant or school health official has reason to believe that a person is sick or has died of a diagnosed or suspected disease, identified by the department of health as a reportable disease and dangerous to the public health or if a laboratory director has evidence of such sickness or disease, he or she shall transmit within 24 hours a report thereof and identify the name and address of the patient and the name of the patient’s physician to the

 VDH stated that it has asserted this exemption. This exemption is needed to ensure protection of medical information.

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Exemption

Use, Justification, and Requested Clarification of Exemption

commissioner of health or designee, except in the case of the human immunodeficiency virus (HIV) which shall be reported only by a unique identifier code. The commissioner with the approval of the secretary of human services shall by regulation establish a list of those diseases dangerous to the public health that shall be reportable. All information collected pursuant to this section and in support of investigations and studies undertaken by the commissioner for the purpose of determining the nature or cause of any disease outbreak shall be privileged and confidential. The health department shall, by rule, require that any person required to report under this section has in place a procedure that ensures confidentiality. (b) Public health records that relate to the human immunodeficiency virus (HIV) or to acquired immune deficiency syndrome (AIDS) that contain any personally identifying information, or any information that may indirectly identify a person and was developed or acquired by state or local public health agencies shall be confidential and shall not be disclosed, except for public health purposes as provided by law or pursuant to a written authorization voluntarily executed by the individual subject of the public health record, or the individual’s guardian or conservator. (c) A disclosure made pursuant to subsection (b) of this section shall include only the information necessary for the purpose for which the disclosure is made. The disclosure shall be made only on agreement that the information shall remain confidential and shall not be further disclosed without additional written authorization by the individual subject as required by subsection (b) of this section. (d) A confidential public health record shall not be: (1) Disclosed or discoverable in any civil, criminal, administrative or other proceeding. (2) Used to determine issues relating to employment or insurance for any individual.

121.

18 V.S.A. § 1094 Restraining orders; venereal diseases (1951)

Such suspected person may by petition directed to a justice of the supreme court or a superior judge pray for an order restraining the making of such examination and no examination shall then be made except upon order of such justice or judge and such petition and order shall not be a matter of public record. Before such examination, each suspected person shall be informed of this right and be given an opportunity to avail himself or herself thereof.

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122.

Statutory Citation & Year Enacted 18 V.S.A. § 1099 Health; venereal disease reports (1959)

123.

18 V.S.A. § 1129 Health; childhood immunization registry (1997)

124.

18 V.S.A. § 1755(d) Health; lead poisoning reports (1993)

125.

18 V.S.A. § 1852(a)(7) Health; patients’ bill of rights; patient information (1985)

Exemption

Use, Justification, and Requested Clarification of Exemption

All information and reports in connection with persons suffering from venereal diseases shall be regarded as absolutely confidential and for the sole use of the board in the performance of its duties hereunder, and such records shall not be accessible to the public nor shall such records be deemed public records; and such board shall not disclose the names or addresses of persons so reported or treated except to a prosecuting officer or in court in connection with a prosecution under section 1105 or 1106 of this title. The foregoing shall not constitute a restriction on the board in the performance of its duties in controlling the above communicable diseases. The department may use the data to create a registry of childhood immunizations. Registry information regarding a particular child shall be provided, upon request, to the child after the child reaches the age of majority and to the child’s parent, guardian and health care provider. Registry information shall be kept confidential and privileged and may be shared only in summary, statistical or other form in which particular individuals are not identified. Any health care provider or employee thereof making the diagnosis of lead poisoning shall report such diagnosis to the department within such time and using such format as the department shall prescribe. Any laboratory in Vermont which analyzes blood samples of children below the age of six for lead levels shall report to the department such information on blood lead analyses as the department may require including data on the number and results of blood lead analyses performed by the laboratory. All health care providers who use laboratories outside Vermont to analyze blood samples of children below the age of six for lead levels shall report to the department such information as the department may require including data on the number and results of such blood lead tests. The commissioner shall establish procedures to ensure the confidentiality of the children and families.

 VDH stated that the public health division would invoke this exemption to protect the personally identifiable and medical information contained on the registry from disclosure.

(7) The patient has the right to expect that all communications and records pertaining to his or her care shall be treated as confidential. Only medical personnel, or individuals under the supervision of medical personnel, directly treating the patient, or those persons monitoring the quality of that treatment, or researching the effectiveness of that treatment, shall have access to the patient’s medical records. Others may have access to those records only with the patient’s written authorization.

 AHS stated that this exemption may be asserted widely across the agency. Various departments possess patient information relating to treatment, payment or health care operations.  VDH stated that the mental health division asserts this exemption relative to the information it maintains and/or receives regarding individual patients. Other departments within the agency are likely to assert this exemption. VT LEG 207892.v1

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126.

Statutory Citation & Year Enacted 18 V.S.A. § 4211 Health; medical prescriptions (1967)

127.

18 V.S.A. § 4474d Medical marijuana records

128.

18 V.S.A. § 5083 Health; birth records; domestic relation, abuse prevention (1999)

Exemption

Prescriptions, orders and records required by this chapter, and stocks of regulated drugs, shall be open for inspection only to federal or state officers or their specifically authorized agent whose duty it is to enforce the federal drug laws or this chapter, or to authorized agents of professional licensing boards, as that term is defined under 3 V.S.A. chapter 5. No person having knowledge by virtue of his office of any such prescription, order or record shall divulge such knowledge, except in connection with a prosecution, or proceeding before the board or another licensing or registration board, to which prosecution or proceeding the person to whom such prescriptions, orders or records relate is a party. (a) The department of public safety shall maintain and keep confidential, except as provided in subsection (b) of this section and except for purposes of a prosecution for false swearing under section 2904 of Title 13, the records of all persons registered under this subchapter or registered caregivers in a secure database accessible by authorized department of public safety employee’s only. (b) In response to a person-specific or property-specific inquiry by a law enforcement officer or agency made in the course of a bona fide investigation or prosecution, the department may verify the identities and registered property addresses of the registered patient and the patient’s registered caregiver. (c) The department shall maintain a separate secure electronic database accessible to law enforcement personnel 24 hours a day that uses a unique identifier system to allow law enforcement to verify that a person is a registered patient or registered caregiver. (d) The department of public safety shall implement the requirements of this act within 120 days of its effective date. The department may adopt rules under chapter 25 of Title 3 and shall develop forms to implement this act. If a participant in the program described in chapter 21, subchapter 3 of Title 15 [domestic relation, abuse prevention] who is the parent of a child born during the period of program participation notifies the physician or midwife who delivers the child, or the hospital at which the child is delivered, not later than 24 hours after the birth of the child, that the participant’s confidential address should not appear on the child’s birth certificate, then the department shall not disclose such confidential address or the participant’s town of residence on any public records. A participant who fails to provide such notice shall be deemed to have waived the provisions of this section. If such notice is received, then notwithstanding section 5071 of this title, the attendant physician or midwife shall file the certificate with the supervisor of vital records registration within ten days of the birth, without the confidential address or town of residence, and shall not file the certificate with the town clerk.

Use, Justification, and Requested Clarification of Exemption  OVHA might assert such an exemption as its records contain prescription information. Such information is traditionally considered confidential as a matter of public policy and may be subject to disclosure when fraud or abuse is suspected.

 Dept. of public safety stated that it uses this exemption

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129.

Statutory Citation & Year Enacted 18 V.S.A. § 5086 Health; birth information council; records received (2001)

Exemption

Use, Justification, and Requested Clarification of Exemption

Records received are confidential. The council shall file a report with the general assembly regarding its findings and recommendations no later than January 15, 2003.

130.

18 V.S.A. § 5088 Birth information network (2003)

(a) The birth information network shall be designed to protect the confidentiality of the individuals and families involved. Information from the network shall be used only in ways that reflect responsible public health protocols and practice. (b) The commissioner shall take measures necessary to comply with the federal “Standards for Privacy of Individually Identifiable Health Information” contained in Parts 160 and 164 of Title 45 of the Code of Federal Regulations, 45 CFR §§ 160.101 et seq. and 45 CFR §§ 164.102 et seq., and any subsequent amendments, including the following: (1) security procedures limiting access to network data; (2) a confidentiality statement to be signed by staff members; (3) encryption of identifying information; and (4) use of information for research and assessment purposes.

 The VDH stated that the public health division, would assert the exemption in order to protect a child from inappropriate use of their medical and personal information.

131.

18 V.S.A. § 5132 Health; marriage licenses; domestic relations; abuse prevention (1999)

(a) If a participant in the program described in chapter 21, subchapter 3 of Title 15 (domestic relations, abuse prevention) notifies the town that the participant’s confidential address should not appear on the marriage license or certificate, then the town clerk shall not disclose such confidential address or the participant’s town of residence on any public records. A participant who fails to provide such notice shall be deemed to have waived the provisions of this section. If such notice is received, then notwithstanding section 5131 of this title, the town clerk shall file the marriage certificate with the supervisor of vital records registration within ten days of receipt, without the confidential address or town of residence, and shall not retain a copy of the marriage certificate. (b) The supervisor of vital records registration shall receive and file for record all certificates filed in accordance with this section, and shall ensure that a person’s confidential address and town of residence do not appear on the marriage certificate during the period that the person is a program participant. A certificate filed in accordance with this section shall be a public document. The supervisor of vital records shall notify the secretary of state of the receipt of a marriage certificate on behalf of a program participant. (c) The department shall maintain a confidential record of the person’s actual mailing address and town of residence. Such record shall be exempt from public inspection.

 The VDH stated that the vital records office, would invoke this exemption to protect information regarding the address and town of residence of an individual who has been the victim of sexual violence, sexual assault, or stalking, in order to prevent the perpetrator of the act from locating the victim through public records. The exemption is used only when the individual has applied to the Secretary of State’s Office for an address to be provided on their behalf (Safe at Home program). This exemption is invoked each year for a small number of individuals.

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132.

Statutory Citation & Year Enacted 18 V.S.A. § 5205 Autopsy reports (2003)

133.

18 V.S.A. § 5222(d) Health; fetal death reports (1973)

134.

18 V.S.A. § 7103 Health; mental health records (1967)

Exemption

Use, Justification, and Requested Clarification of Exemption

(g) When a person who is committed to the custody of the department of corrections or who is under the supervision of the department of corrections dies, the commissioner of corrections may request to be provided with a copy of any and all reports generated pursuant to subsection (f) of this section. No such request shall be granted where the medical examiner is unable to determine a manner of death or the manner of death is classified as a homicide. In other circumstances, the request shall be granted in the discretion of the medical examiner for good cause shown. Reports disclosed pursuant to this subsection shall remain confidential as required by law and shall not be considered to be a public record pursuant to 1 V.S.A. § 317.

 The VDH stated that autopsy reports are confidential as provided in 18 VSA §§ 5202 and 5205. This exemption reflects the traditional privacy values accorded to reports about deceased persons.

Fetal death reports are for statistical purposes only and are not public records. They shall be destroyed after five years.

 The VDH stated that the vital records office, would invoke this exemption to protect the patient information, which could be used to identify the mother of the deceased infant. Fetal death reports contain identifiable data (Patient i.d.; date of birth; town of residence; etc.) and are generated for statistical purposes only. This exemption has been invoked to prevent access by members of the media and the general public.

(a) All certificates, applications, records and reports, other than an order of a court made for the purposes of this part of this title, and directly or indirectly identifying a patient or former patient or an individual whose hospitalization or care has been sought or provided under this part, together with clinical information relating to such persons shall be kept confidential and shall not be disclosed by any person except insofar: (1) as the individual identified, the individual’s health care agent under subsection 5264 of this title, or the individual’s legal guardian, if any (or, if the individual is an unemancipated minor, his or her parent or legal guardian), shall consent in writing; or (2) as disclosure may be necessary to carry out any of the provisions of this part; or (3) as a court may direct upon its determination that disclosure is necessary for the conduct of proceedings before it and that failure to make disclosure would be contrary to the public interest. (b) Nothing in this section shall preclude disclosure, upon proper inquiry, of information concerning medical condition to the individual’s family, clergy, physician, attorney, the individual’s health care agent under section 5264 of this title, a person to whom disclosure is authorized by a validly executed durable

 VDH stated that the mental health division, would assert this exemption. Information relating to mental health records is maintained as confidential under state and federal law.

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Exemption

Use, Justification, and Requested Clarification of Exemption

power of attorney for health care, or to an interested party. (c) Any person violating this section shall be fined not more than $2,000.00 or imprisoned for not more than one year, or both. (d) Nothing in 12 V.S.A. § 1612(a) shall affect the provisions of this section. (e) Mandatory disclosure to home providers. (1) With the written consent of the individual, or his or her guardian, an agency designated by the department to provide developmental and mental health services shall disclose all relevant information, in writing, to a potential home care provider for that individual so that the provider has the opportunity to make a fully informed decision prior to the placement. (2) If the individual, or his or her guardian, does not consent to the disclosure, the placement will not occur unless the home care provider agrees, in writing, to the placement, absent disclosure. (3) A home care provider must furnish to any person providing respite care, the individual’s relevant information obtained from the agency designated by the department to provide developmental and mental health services, as provided in this subsection. Where the home care provider has agreed to placement without disclosure, the home care provider shall inform the respite provider of that fact. 135.

18 V.S.A. § 8713 Health; sterilization of mentally retarded (1981)

All proceedings under this chapter [sterilization of mentally retarded] shall be closed to the public, and the records shall be sealed unless requested to be opened by the respondent.

136.

18 V.S.A. § 8728(a)(2) Health; developmental disability patients rights act (1995)

(a) Every person with a developmental disability who receives services has the right to: *** (2) Privacy, dignity, confidentiality and humane care.

137.

18 V.S.A. § 9306 Health; developmental disabilities evaluation information (2001)

(c) The department shall send a copy of the evaluation to the court, the state’s attorney, the director of guardianship services, and to counsel for the respondent. The evaluation is a confidential document, and shall not be further disclosed by the court and the parties without the consent of the respondent or a person authorized to act on behalf of the respondent, except that the department shall release the evaluation to a developmental services agency, if necessary, for the purpose of obtaining or improving services to the person.

 DAIL invokes this exemption if an individual’s records were in DAIL’s possession. This material would be exempted from disclosure as a part of the individual’s medical file.  DAIL invokes this exemption.

 DAIL is generally responsible for the oversight of care for developmentally disabled persons. According to the terms of the statute, DAIL would maintain evaluation reports as confidential documents.

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138.

Statutory Citation & Year Enacted 18 V.S.A. § 9309(b) Health; guardianship hearing for developmentally disabled (2001)

Exemption

(b) The hearing shall be conducted in a manner consistent with orderly procedure and in a physical setting not likely to have a harmful effect on the mental or physical health of the respondent. In all proceedings, the court shall have taken and preserved an accurate record of the proceedings. The court shall not be bound by the evidence contained in the comprehensive evaluation, but shall make its determination upon the entire record. In all cases, the court shall make specific findings of fact, state separately its conclusions of law, and direct the entry of an appropriate judgment. The general public shall be excluded from hearings under this chapter, and only the parties, their counsel, the interested person who requested the filing of the petition, witnesses and other persons accompanying a party for his or her assistance, and such other persons as the court finds to have a proper interest in the case or in the work of the court may be admitted by the court. The proceedings of the hearing shall be confidential, and a record of the proceedings may not be released without the consent of the respondent or the respondent’s guardian.

Use, Justification, and Requested Clarification of Exemption  DAIL invokes this exemption.

139.

18 V.S.A. § 9333(c) Genetic testing information (1997)

(c) No person shall disclose to an employer, labor organization, employment agency or licensing agency any genetic testing results or genetic information, that genetic services have been requested, or that genetic testing has been performed, with respect to an individual who is an employee, labor organization member, professional licensee, certificate holder or registrant.

140.

18 V.S.A. § 9457 Health; hospital financial and services reporting requirements (1983)

All information required to be filed under this subchapter shall be made available to the public upon request, provided that individual patients or health care practitioners shall not be directly or indirectly identifiable.

 BISHCA stated that this exemption is consistent with the confidentiality afforded individual medical records, hospital information.

141.

18 V.S.A. § 9719(b) Advance directives registry (2005)

(b)(1) Within 180 days of the effective date of this chapter, the commissioner shall develop and maintain a registry to which a principal may submit his or her advance directive, including a terminal care document and a durable power of attorney. The rules shall describe when health care providers, health care facilities, and residential care facilities may access an advance directive in the registry. In no event shall the information in the registry be accessed or used for any purpose unrelated to decision-making for health care or disposition of remains, except that the information may be used for statistical or analytical purposes as long as the individual’s identifying information remains confidential.

 The VDH stated that 18 VSA § 9719(b) provides that information in the advance directive registry is confidential except for medical providers and facilities that provide care for the individual. The protections reflect the privacy that traditionally cloaks decisions about health care and death and dying decisions.

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142.

Statutory Citation & Year Enacted 20 V.S.A. § 1923(d) DPS; internal investigation records (1979)

Exemption

Use, Justification, and Requested Clarification of Exemption

(d) Records of the office of internal investigation shall be confidential, except: (1) The state police advisory commission shall, at any time, have full and free access to such records; and (2) The commissioner shall deliver such materials from the records of the office of internal investigation as may be necessary to appropriate prosecutorial authorities having jurisdiction; and (3) The state police advisory commission shall, in its discretion, be entitled to report to such authorities as it may deem appropriate, or to the public, or to both, to ensure that proper action is taken in each case.

143.

20 V.S.A. § 1941 DPS; DNA samples (1997)

All DNA samples submitted to the laboratory pursuant to this subchapter shall be confidential.

144.

20 V.S.A. § 2056 Vermont Criminal Information Center records (1969)

Upon the request of a superior or district court judge, the attorney general or a state’s attorney, the center shall prepare the record of arrests, convictions or sentences of a person. The record, when duly certified by the commissioner of public safety or the director of the center, shall be competent evidence in the courts of this state. Such other information as is contained in the center may be made public only with the express approval of the comm’ner of public safety.

 Dept. of public safety stated that it invokes this exemption.

145.

20 V.S.A. ch. 117 Vermont Criminal Information Center (1969)

Multiple section regarding access to criminal history record.

 Dept. of public safety stated that it invokes this exemption.

146.

21 V.S.A. § 516 Health care information; drug test results (1987)

(a) Any health care information about an individual to be tested shall be taken only by a medical review officer and shall be confidential and shall not be released to anyone except the individual tested, and may not be obtained by court order or process, except as provided in this subchapter. (b) Employers, medical review officers, laboratories and their agents, who receive or have access to information about drug test results, shall keep all information confidential. Release of such information under any other circumstance shall be solely pursuant to a written consent form signed voluntarily by the person tested, except where such release is compelled by a court of competent jurisdiction in connection with an action brought under this subchapter. A medical review officer shall not reveal the identity of an individual being tested to any person, including the laboratory. (c) If information about drug test results is released contrary to the provisions of this subchapter, it shall be inadmissible as evidence in any judicial or quasi-judicial proceeding, except in a court of competent jurisdiction in connection with an action brought under this subchapter.

 Federal law requires most health care information to be confidential or subject to limited release.

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147.

Statutory Citation & Year Enacted 21 V.S.A. 1035(c) Labor; employee leasing companies’ financial information (1995)

Exemption

Use, Justification, and Requested Clarification of Exemption

Financial information submitted to the commissioner by an applicant or licensee shall be confidential and shall not be available for public inspection. Nothing in this section shall be construed to restrict the commissioner from sharing this information with the attorney general, the department of banking, insurance, securities, and health care administration, the department of employment and training, the department of taxes, the secretary of state or the U.S. Internal Revenue Service.

148.

21 V.S.A. § 1314 Labor; unemployment compensation (1967)

(d)(1) Except as otherwise provided in this chapter, information obtained from any employing unit or individual in the administration of this chapter, and determinations as to the benefit rights of any individual shall be held confidential and shall not be disclosed or open to public inspection in any manner revealing the individual’s or employing unit’s identity, nor be admissible in evidence in any action or proceeding other than one arising out of this chapter. An individual or his duly authorized agent may be supplied with information from those records to the extent necessary for the proper presentation of his or her claims for benefits or to inform him or her of his or her existing or prospective rights to benefits; an employing unit may be furnished with such information as may be deemed proper, within the discretion of the commissioner, to enable it to fully discharge its obligations and safeguard its rights under this chapter.

149.

22 V.S.A. § 761 Historic preservation; state archeologist; underwater archaeology sites (1975)

All information regarding the location of archeological sites and underwater historic properties shall be confidential except that the state archeologist shall provide this information to qualified individuals or organizations, public agencies and nonprofit organizations for archeological and scientific research or for preservation and planning purposes when the state archeologist determines that the preservation of these properties is not endangered.

150.

23 V.S.A. § 707 DMV; motor vehicle training schools (1959)

Every driver’s training school licensee shall keep a record on such forms as the commissioner may prescribe showing the name and address of each instructor, the instruction license number of such instructor, the particular type of instruction given and how much time was given to each type of instruction and such other information as the commissioner may require. Such record shall be open to the inspection of the department at all reasonable times but shall be for the confidential use of the department. Every driver’s training school licensee shall maintain all vehicles used in driver training in safe mechanical condition at all times.

 ACCD stated that it uses this exemption and wants to retain it.

 DMV stated that this exemption should be retained. The department inspects driver’s training schools and has the right to inspect the records of such schools. However, the records are not public to protect the school and its potential business advantage.

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151.

Statutory Citation & Year Enacted 24 V.S.A. § 1884 Municipal treasurer registry books confidential registry (1983)

Exemption

Use, Justification, and Requested Clarification of Exemption

The books of registry held by the treasurer of the municipal corporation or other designated register shall be confidential and the information contained therein shall not be available to the public.

152.

24 V.S.A. § 2786(a)(1) Regional development corporations (1995)

(a) A regional development corporation approved by the commissioner under this chapter shall be subject to subchapter 2 (open meetings), and subchapter 3 (public records) of chapter 5 of Title 1, except that in addition to any limitation provided in subchapter 2 or subchapter 3: (1) no person shall disclose any information relating to a proposed transaction or agreement between the corporation and another person, in furtherance of the corporation’s public purposes under the law, prior to final execution of such transaction or agreement; and (2) meetings of the corporation’s board to consider such proposed transactions or agreements may be held in executive session under section 313 of Title 1.

153.

26 V.S.A. § 82 Public accountants; confidential communications (1981)

(a) No firm or any of its employees or other public accountants engaged by the firm, shall disclose any confidential information obtained in the course of a professional engagement except with the consent of the client or former client or as disclosure may be required by law, legal process or the standards of the profession. (b) This section does not limit the authority of this state or of the United States to subpoena and use information in connection with any investigation, or proceedings. This section does not prohibit a public accountant whose professional competence has been challenged in a court or before an administrative agency from disclosing confidential information as a part of a defense. (c) Nothing in this chapter prohibits a firm or any of its employees, from disclosing any data to other public accountants, report review teams, or partnerships or corporations of public accountants engaged in conducting report reviews under the auspices of a recognized professional association, or any of their employees, in connection with report reviews of the accountant’s accounting and auditing practice. (d) Nothing contained in this chapter prohibits a firm or any of its employees, from disclosing any data in confidence to any representative of a recognized professional association or to the board in connection with a professional ethics investigation or in the course of a peer review.

 ACCD supports keeping this exemption and considers it vital to the success of regional development corporations’ recruitment and business support efforts.

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154.

Statutory Citation & Year Enacted 26 V.S.A. § 1318 Medical practice board; disciplinary proceedings (2001)

Exemption

Use, Justification, and Requested Clarification of Exemption

(a) It is the purpose of this section both to protect the reputation of licensees from public disclosure of unwarranted complaints against them and to fulfill the public’s right to know of any action taken against a licensee when that action is based on a determination of unprofessional conduct. (b) All meetings and hearings of the board shall be open to the public, except in accord with section 313 of Title 1. (c) The commissioner of health shall prepare and maintain a register of all complaints, which shall be a public record, and which shall show: (1) with respect to all complaints, the following information: (A) the date and the nature of the complaint, but not including the identity of the licensee; and (B) a summary of the completed investigation; and (2) only with respect to complaints resulting in filing of disciplinary charges or stipulations or the taking of disciplinary action, the following additional information: (A) the name and business addresses of the licensee and complainant; (B) formal charges, provided they have been served or a reasonable effort to serve them has been made; (c) the findings, conclusions and order of the board; (D) the transcript of the hearing, if one has been made, and exhibits admitted at the hearing; (E) stipulations filed with the board; and (F) final disposition of the matter by the appellate officer or the courts. (d) The commissioner shall not make public any information regarding disciplinary complaints, proceedings or records, except the information required to be released under this section. (e) A licensee or applicant shall have the right to inspect and copy all information in the possession of the department of health pertaining to the licensee or applicant, except investigatory files which have not resulted in charges of unprofessional conduct and attorney work product. (f) For the purposes of this section, “disciplinary action” means action that suspends, revokes, limits or conditions licensure or certification in any way, and includes reprimands.

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155.

Statutory Citation & Year Enacted 26 V.S.A. § 1353(5) Medical practice board; examinations of licensees (1991)

Exemption

Use, Justification, and Requested Clarification of Exemption

Require a licensee or applicant to submit to a mental or physical examination, and an evaluation of medical knowledge and skill by individuals or entities designated by the board if the board has a reasonable basis to believe a licensee or applicant may be incompetent or unable to practice medicine with reasonable skill and safety. The results of the examination or evaluation shall be admissible in any hearing before the board. The results of an examination or evaluation obtained under this subsection and any information directly or indirectly derived from such examination or evaluation shall not be used for any purpose, including impeachment or cross-examination against the licensee or applicant in any criminal or civil case, except a prosecution for perjury or giving a false statement. The board shall bear the cost of any examination or evaluation ordered and conducted pursuant to this subdivision. The licensee or applicant, at his or her expense, shall have the right to present the results or reports of independent examinations and evaluations for the board’s due consideration. An order by the board that a licensee or applicant submit to an examination, test or evaluation shall be treated as a discovery order for the purposes of enforcement under sections 809a and 809b of Title 3. The results of an examination or evaluation obtained under this subdivision shall be confidential except as provided in this subdivision.

156.

26 V.S.A. § 1360(c) Medical practice board; protection of victim of sexual conduct (1991)

In any proceeding under this section which addresses an applicant’s or licensee’s alleged sexual misconduct, evidence of the sexual history of the victim of the alleged sexual misconduct shall neither be subject to discovery nor be admitted into evidence. Neither opinion evidence of nor evidence of the reputation of the victim’s sexual conduct shall be admitted. At the request of the victim, the hearing committee may close portions of hearings to the public if the board deems it appropriate to close portions of the hearing in order to protect the identity of the victim and the confidentiality of his or her medical records.

157.

26 V.S.A. § 1443 Health services peer review committees; health care; proceedings and report (1975)

(a) The proceedings, reports and records of committees defined in section 1441 [health services review] of this title including information and evidence required to be reported pursuant to section 1317 of this title shall be confidential and privileged, and shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any findings, recommendations, evaluations, opinions, or other actions of such

 VDH stated that the mental health division relies on this statute to safeguard patient information.

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committees or any members thereof. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such action merely because they were presented during the proceedings of such committee, nor shall any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his or her knowledge, but such witness shall not be asked about his or her testimony before such committee or about opinions formed by him or her as a result of such committee hearings. (b) Notwithstanding the provisions of subsection (a) of this section, a peer review committee shall provide a board with all supporting information and evidence pertaining to information required to be reported under section 1317 of this title. (c) Notwithstanding the provisions of section 1318 of this title, relating to accessibility and confidentiality of disciplinary matters, the proceedings, reports, records, supporting information and evidence of a peer review committee provided by the committee to a board in accordance with the provisions of section 1317 of this title and subsection (b) of this section may be used by the board for disciplinary purposes but shall not be subject to public disclosure.

158.

28 V.S.A. § 204(d) Department of Corrections; presentence reports (1971)

Any presentence report, pre-parole report, or supervision history prepared by any employee of the department in the discharge of the employee’s official duty, except as provided in section 205 of this title, is privileged and shall not be disclosed to anyone outside the department other than the judge or the parole board, except that the court or board may in its discretion permit the inspection of the report or parts thereof by the state’s attorney, the defendant or inmate or his or her attorney, or other persons having a proper interest therein, whenever the best interest or welfare of the defendant or inmate makes that action desirable or helpful.

 The department of corrections invokes exemption 1 V.S.A. § 317(c)(1) as confidential information for any pre-sentence investigation reports.

159.

28 V.S.A. § 205(b) Department of Corrections; victim information (1995)

The victim of a listed crime as defined in 13 V.S.A. § 5301(7) for which the offender has been placed on probation shall have the right to request, and receive from the department of corrections information regarding the offender’s general compliance with the specific conditions of probation. Nothing in this section shall require the department of corrections to disclose any confidential information revealed by the offender in connection with participation in a treatment program.

 The department of corrections invokes exemption 1 V.S.A. § 317(c)(1) as confidential information for any offender participation in a treatment center with regards to victims obtaining information pertaining to the offender’s general compliance with specific conditions of probation.

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160.

Statutory Citation & Year Enacted 28 V.S.A. § 403(4) Department of Corrections; register of individuals requesting notice of parole hearings (1997)

Exemption

Use, Justification, and Requested Clarification of Exemption

(4) To establish and maintain a register of individuals who ask to be notified of the parole interview or review of an inmate by the parole board. The register shall constitute a confidential record which shall only be disclosed to persons within the department specifically designated by the commissioner; ***

 The department of corrections invokes exemption 1 V.S.A. § 317(c)(1) as confidential information for the register established and maintained by the commissioner of individuals who ask to be notified of a parole interview or review of an inmate by the parole board.

161.

28 V.S.A. § 601(10) Department of Corrections; inmate files (1971)

(10) To establish and maintain, in accordance with such rules and regulations as are established by the commissioner, a central file at the facility containing an individual file for each inmate. Except as otherwise may be indicated by the rules and regulations of the department, the content of the file of an inmate shall be confidential and shall not be subject to public inspection except by court order for good cause shown and shall not be accessible to inmates at the facility.

 The department of corrections invokes exemption 1 V.S.A. § 317(c)(1) as confidential information for an inmate’s correctional file.

162.

28 V.S.A. § 903 Department of Corrections; inmate communications for purposes of treatment access to treatment (1995)

Treatment, assessment, evaluation, screening or programming shall not be restricted or denied to inmates on the basis of any anticipated or pending direct or collateral appeal of any criminal conviction, nor on the basis of any position taken by the appellant in any such action. The commissioner shall promulgate rules pursuant to chapter 25 of Title 3 regarding the confidentiality of communications by an inmate made for the purposes of treatment, assessment, evaluations, screening or programming while an appeal is pending. This provision neither expands nor contracts the duty of the commissioner to adopt rules pursuant to chapter 25 of Title 3.

 The department of corrections invokes exemption 1 V.S.A. § 317(c)(1) as confidential information for communications by an inmate made for the purposes of treatment, assessment, evaluations, screening or programming while an appeal is pending.

163.

29 V.S.A. § 505(b)(2) Vermont natural gas and oil resources board; authority of the board well logs (1981)

(2) require the making and filing of well logs, directional surveys, and reports on well location, drilling and production; provided that all such records marked “confidential” shall be kept confidential for two years after their filing, unless the owner gives written permission to release them at an earlier date; provided, however, that the state geologist is authorized access to this information. The board may provide by rule for extension of the period of confidentiality for an additional period of one year upon written request of the owner and a showing of special circumstances requiring an extension; ***

 ANR stated that it uses this exemption (use by state geologist).

164.

29 V.S.A. § 542 Oil and gas drilling geological drilling logs and reports (1981)

It shall be the duty of the well operator to keep a geologic log prepared by a competent petroleum geologist showing the character, thickness, and depth of the formations encountered in the drilling of a well and the depths at which all oil, gas, water or other substances are encountered. The log shall show whether the well is productive of oil, gas, water or other substances, the quantities

 ANR stated that it uses this exemption (use by state geologist).

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thereof, and the initial pressure and production measured over a period of at least 48 hours. A copy of the well log shall be furnished to the board within 30 days of the completion of the well. Such reports shall be held confidential; provided, however, that the state geologist shall have access to this information.

165.

29 V.S.A. § 543(c) Reports of oil and gas operations (1981)

(a) The owner, lessee, agent, employee or other person in charge of any oil and gas well within the state shall forward to the board, in the manner and form prescribed by the rules of the board, a report showing the character of the well, method of operation, and total production for the preceding calendar year. Such reports shall be held confidential.

 ANR stated that it uses this exemption (use by state geologist).

166.

29 V.S.A. § 553 Oil and gas confidential information prohibited (1981)

It shall be unlawful for any member of the board, state land manager, employee, or other person performing any function on behalf of the board or a state land manager, or any governmental agency or employee utilizing confidential information provided to the board, to disclose or use such information for purposes other than those authorized by the board, except upon the written consent of the person making the information available to the board.

 ANR stated that it uses this exemption (use by state geologist).

167.

30 V.S.A. § 7055(b) E-911; confidential information (1993)

(b) Every local exchange telecommunications provider shall provide the ANI and any other information required by rules adopted under section 7053 of this title to the board, or to any administrator of the enhanced 911 data base, for purposes of establishing and maintaining the enhanced 911 data base. Each such provider shall be responsible for updating the information at a frequency specified by such rules. All persons receiving confidential information under this section, as defined by the public service board, shall use it solely for the purposes of providing E-911 emergency telephone service, and shall not disclose such confidential information for any other purpose.

168.

30 V.S.A. § 7059 E-911 information (1995, subsec. (a)) (2003, subsec. (e))

(a)(1) No person shall access, use, or disclose to any other person any individually identifiable information contained in the system database created under subdivision 7053(a)(4) of this title, including any customer or user ALI or ANI information, except in accordance with rules adopted by the board and for the purpose of: (A) responding to emergency calls; (B) system maintenance and quality control under the direction of the director;

 Dept. of public safety stated that it uses this exemption with regard to information obtained from E-911 by emergency communications dispatechers.

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or (c) investigation, by law enforcement personnel, of false or intentionally misleading reports of incidents requiring emergency services. (2) No person shall use customer ALI or ANI information to create special 911 databases, or for any private purpose or any public purpose unauthorized by this chapter. (b) Notwithstanding the provisions of subsection (a) of this section, customer ALI or ANI information obtained in the course of responding to an emergency call may be included in an incident report prepared by emergency response personnel, in accordance with rules adopted by the board. (c) Information relating to customer name, address, and any other specific customer information collected, organized, acquired, or held by the board, the entity operating a public safety answering point or administering the enhanced 911 database, or emergency service provider is not public information and is exempt from disclosure under subchapter 3, chapter 5 of Title 1. (d) If a municipality has adopted conventional street addressing for enhanced 911 addressing purposes, the municipality shall ensure that an individual who so requests will not have his or her street address and name linked in a municipal public record, but the individual shall be required to provide a mailing address. The request required by this subsection shall be in writing and shall be filed with the municipal clerk. Requests under this subsection shall be confidential. A form shall be prepared by the board and made generally available to the public by which the confidentiality option established by this subsection may be exercised. (e) Notwithstanding any provision of law to the contrary, no person acting on behalf of the state of Vermont or any political subdivision of the state shall require an individual to disclose his or her enhanced 911 address, provided that the individual furnishes his or her alternative mailing address.

169.

31 V.S.A. § 674(L1I) Tri-state lottery commission; financial tax, trust or personal records of winners (1995)

L1I. The financial, tax, trust or personal records filed, received, maintained or produced by the commission in connection with payment of a prize as provided in this section are confidential. Such records shall not be deemed public records under 1 V.S.A. § 317. Upon written request, the commission may release the name, town of residence, date of prize, and the gross and net amounts of the annual prize payment of a winner. Financing statements filed with the commission are public records.

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170.

171.

Statutory Citation & Year Enacted 32 V.S.A. § 983 State treasurer’s books of registry (1983)

32 V.S.A. § 3102 Tax records (1988)

Exemption

Use, Justification, and Requested Clarification of Exemption

The books of registry held by the state treasurer or other designated registrar shall be confidential and the information contained therein shall not be available to the public.

(a) No present or former officer, employee or agent of the department of taxes shall disclose any return or return information to any person who is not an officer, employee or agent of the department of taxes except in accordance with the provisions of this section. A person who violates this section shall be fined not more than $1,000.00 or imprisoned for not more than one year, or both; and if the offender is an officer or employee of this state, he or she shall in addition be dismissed from office and be incapable of holding any public office for a period of five years thereafter.

 ACCD views this exemption as important, because under § 3102(e)(11) it provides a reasonably necessary test regarding tax return disclosures to VEPC and § 3102(g) because it allows for aggregate data disclosure instead of personally identifying information.  General exemption for tax records. Department of taxes stated that it is necessary and they are interested in retaining it as written.

***

(c) The commissioner shall disclose a return or information appearing on a return: (1) to the person who filed the return with the department of taxes or any authorized representative of that person; (2) to any one of the several persons filing a joint, partnership, or consolidated return with the department of taxes, or any authorized representative of those persons. (d) The commissioner shall disclose a return or return information: (1) to any person, in compliance with a judicial order directing disclosure, provided, however, that nothing in this section shall be construed to preclude the commissioner from contesting the issuance of a judicial order; (2) to any officer, employee or agent of any law enforcement authority, if pursuant to a warrant issued in accordance with the provisions of Rule 41 of the Vermont Rules of Criminal Procedure, provided, however, that nothing in this section shall be construed to preclude the commissioner from contesting the issuance of a warrant; (3) to any person who inquires, provided that the information is limited to whether a person is registered to collect Vermont income withholding, sales and use, or meals and rooms tax; whether a person is in good standing with respect to the payment of these taxes; whether a person is authorized to buy or sell property free of tax; or whether a person holds a valid license under chapters 201, 205 or 239 of this title; (4) to any other person specifically authorized by law to receive such information; VT LEG 207892.v1

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(5) to the attorney general for purposes of investigating potential violations of and enforcing subchapters 1A and 1B of chapter 19 of Title 33. (e) The commissioner may, in his or her discretion and subject to such conditions and requirements as he or she may provide, including any confidentiality requirements of the Internal Revenue Service, disclose a return or return information: (1) to any person, provided that the information appears in records that are otherwise available to the general public; it shall not be an abuse of discretion to deny disclosure on the grounds that the information is of the type available at a town clerk’s office; (2) to any person, provided that such disclosure is reasonably necessary for purposes of Vermont tax administration; (3) to any officer, employee or agent of any other state, provided that the information will be used by that state for tax administration and that state grants substantially similar disclosure privileges to this state and provides for the secrecy of records in terms substantially similar to those provided by this section; (4) to any officer, employee or agent of any law enforcement authority pursuant to a judicial order issued ex parte upon application by the commissioner for the purpose of determining the location of a fugitive from justice or under circumstances involving an imminent danger of death or serious bodily injury to an individual. Information disclosed under this subdivision shall be used exclusively for the purpose for which disclosure was granted; (5) to the person whose return information is sought, or any duly authorized representative of that person; (6) to any person who shall use such return or return information solely in connection with the processing of such a return or return information or in connection with the audit of the books, records and accounts of the department of taxes; (7) to any person, or his or her duly authorized representative, provided that the information is necessary to determine that person’s liability for a tax administered by the commissioner and cannot reasonably be obtained from another source; (8) to the commissioner of employment and training for the purpose of establishing the identity or liability of employers for unemployment compensation; (9) to any person, provided that the disclosure is reasonably necessary to investigate or discipline employee misconduct relating to the failure of an employee of the department of taxes to comply with federal or state tax laws; VT LEG 207892.v1

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(10) to any person, provided that the disclosure is reasonably necessary to investigate the truthfulness of a statement made pursuant to section 3113 of this title that a contractor, licensee, or person authorized by the state to conduct a trade or business is in good standing with respect to or in full compliance with a plan to pay any and all taxes due as of the date such statement is made, or to discipline or prosecute any person making a false statement; (11) to the joint fiscal office or its agent, provided that the disclosure relates to a successful business applicant under section 5930a of this title and the tax incentive it has claimed and is reasonably necessary for the joint fiscal office or its agent to perform the duties authorized by the joint fiscal committee or a standing committee of the general assembly under subsection 5930a(h); to the auditor of accounts for the performance of duties under section 163 of this title; to the department of economic development for the purposes of subsection 5922(f) of this title; and to the Vermont economic progress council, provided that the disclosure relates to a successful business applicant under section 5930a of this title and the tax incentive it has claimed and is reasonably necessary for the council to perform its duties under section 5930a; (12) to the joint fiscal office or its agent, provided the disclosure relates to a taxpayer claiming a tax credit pursuant to sections 5930n, 5930p, 5930q, or 5930r of this title or the credits claimed thereunder, and the disclosure is reasonably necessary for the joint fiscal office or its agent to perform its duties; (13) to the center for crime victims services for the purpose of determining or verifying a defendant’s assets and income pursuant to section 7043 of Title 13. (f) Notwithstanding the provisions of this section, information obtained from the commissioner of prevention, assistance, transition, and health access under subsection (c) of section 2552 of Title 33, from the Vermont student assistance corporation under section 2843 of Title 16 or the dental health program under section 3307 of Title 33, or a job development zone under subsection (c) of section 5926 of Title 32 shall be confidential and it shall be unlawful for anyone to divulge such information except in accordance with a judicial order or as provided under another provision of law. (g) Nothing in this section shall be construed to prohibit the publication of statistical information, rulings, determinations, reports, opinions, policies or other information so long as the data is disclosed in a form that cannot identify or be associated with a particular person. (h) If any provision of Vermont law authorizes or requires the commissioner to divulge or make known in any manner any return or return information, the person or persons receiving such return or return information (other than information disclosed under subsection (i) of this section) shall be subject to the VT LEG 207892.v1

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provisions of subsection (a) of this section as if such person were the agent of the commissioner. Nothing in this subsection shall be construed to restrict the disclosure of a return or return information by the person to whom it relates. (i) The commissioner may, for the purpose of notifying the public of the revocation of a meals and rooms tax license or sales and use tax certificate, disclose the name of the taxpayer and name of the business, the business address and the license or certificate number. 172.

32 V.S.A. § 3411(4) Property valuation and review division; confidentiality of local information (1977)

The property valuation and review division shall through its director: *** 4) maintain any information obtained by the director from any local official subject to the same rules as to public access and confidentiality as apply to such information in the possession of a local official, as contained in section 4009 of this title; ***

 Tax department states that the exemption protects income information similar to information contained in tax returns.

173.

32 V.S.A. § 4009 Tax lister inventories (1947)

Any inventory collected pursuant to section 4001 or 4452 of this title that is in the custody of the town clerk shall be available for inspection, tabulation and copying by any commission authorized to do so by the general assembly, a member of such commission, the attorney general, the director, the state’s attorney of the county and any person designated in writing by the commission, or by any officials listed in this section. Listers, selectboard members, treasurers, collectors of taxes, town grand jurors, attorneys for the town and any person designated by the town to assist the town in appraising, as required under section 4041 of this title, the fair market value of the property identified on the inventory form may examine any inventory that they name, and the taxpayer, the taxpayer’s administrator or executor, may examine the taxpayer’s inventory. Town clerks shall upon request furnish a certified copy of an inventory to an official or person entitled to examine the same, and upon subpoena for that purpose, shall produce in court any inventory in the clerk’s custody. Copies or abstracts so taken or furnished and any data or information obtained by such examination or contained in such abstracts or copies shall not be disclosed in any manner that will reveal the name or identity of the person making such inventory, except for official use. Except as provided in this chapter, the town clerk shall not allow a person to examine such inventories. An official or person entitled to examine an inventory or any other person possessing such information by or through the town offices other than the reporting taxpayer, who, in a manner not provided for in this chapter, discloses any information so possessed shall be fined not more than $100.00.

 Tax department states that the exemption protects income information similar to information contained in tax returns.

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174.

Statutory Citation & Year Enacted 32 V.S.A. § 5901 Tax returns; information collected by tax preparer (1971)

Exemption

(a) Any return of the tax imposed by this chapter, other than a declaration of estimated tax required by this chapter, which is prepared by a person other than the taxpayer, shall contain a written declaration, under the penalties of perjury, by the person preparing the return or declaration that the statements therein are true, correct, and complete, based on all information of which the preparer has any knowledge, and that, either: (1) he has not used and will not use any information furnished by the taxpayer for any purpose other than the preparation of the return or declaration, and has not made and will not make any such information available to any other person for any such purpose; or ***

Use, Justification, and Requested Clarification of Exemption  Tax department stated that the exemption prevents tax preparers from using customer return information for anything besides filing of the return.

175.

32 V.S.A. § 5930a(h) Vermont economic progress council; business information (1998)

(h) Information and materials submitted by a business concerning its income taxes and other confidential financial information shall not be subject to public disclosure under the state’s public records law in Title 1, chapter 5, but shall be available to the joint fiscal office or its agent upon authorization of the joint fiscal committee or a standing committee of the general assembly, and shall also be available to the auditor of accounts in connection with the performance of duties under section 163 of this title; provided, however, that the joint fiscal office or its agent, and the auditor of accounts, shall not disclose, directly or indirectly, to any person any proprietary business information or any information which would identify a business except in accordance with a judicial order or as otherwise specifically provided by law. Nothing in this subsection shall be construed to prohibit the publication of statistical information, rulings, determinations, reports, opinions, policies, or other information so long as the data is disclosed in a form that cannot identify or be associated with a particular business.

 ACCD stated that it wants to retain this exemption; it is needed and is frequently used by the agency.

176.

32 V.S.A. § 5939(b) Tax returns; use of confidential information by claimant agencies (1981)

(a) Notwithstanding any other provision of law prohibiting disclosure by the department of the contents of taxpayer records or information and notwithstanding any confidentiality statute of any claimant agency, disclosure of the name, address and social security number of a debtor, amount of refund owed to a debtor, amount of debt owed by a debtor, and amount of refund attributable to the income of non-debtor spouse, between the department and the claimant agency as necessary to effectuate the intent of this chapter, is lawful. (b) The information obtained by a claimant agency from the department in accordance with the exemption allowed by this section shall only be used by a claimant agency in the pursuit of its debt collection duties and practices and any person employed by, or formerly employed by, a claimant agency who discloses

 ACCD stated that it has used the set-off program.  OCS stated that it asserts this exemption. OCS is a claimant agency and certifies its qualified cases for debt setoff each year.  Tax department stated that the exemption prevents a claimant agency from using tax payer information disclosed under a debt setoff program—i.e. when tax refunds are used to pay debt such as child support or student loans—for a purpose other than debt collection.

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any such information for any other purpose, except as otherwise allowed by law, shall be penalized in accordance with the terms of section 3102 of this title as if that person were an agent of the commissioner. The claimant agency to which information is disclosed shall provide for the protection and security of the information as required by the commissioner. 177.

33 V.S.A. § 105(b) Commissioner of PATH; rulemaking authority (1967)

(b) The commissioner may exercise the powers and perform duties required for effective administration of the department, and he shall determine the policies of the department. (c) In addition to other duties imposed by law, the commissioner shall: (1) Administer the laws assigned to the department. (2) Fix standards and issue regulations necessary to administer those laws and for the custody and preservation of records of the department. Those regulations shall contain provisions restricting the use or disclosure of information contained in the records to purposes directly connected with the administration of the department. As used in this subdivision, the word “records” includes records, papers, files and communications.

 Department for children and families invokes this authority.

178.

33 V.S.A. § 111 Records regarding PATH recipients restrictions, penalties (1967)

(a) The names of or information pertaining to applicants for or recipients of assistance or benefits, including information obtained under section 112 of this title, shall not be disclosed to anyone, except for the purposes directly connected with the administration of the department or when required by law. (b) A person shall not: (1) Publish, use, disclose or divulge any of those records for purposes not directly connected with the administration of programs of the department, or contrary to regulations issued by the commissioner; or (2) Use any records of the department of any kind or description for political or commercial purposes, or purposes not authorized by law.

 PATH now refers generally to DCF. DCF, Economic Services Division (ESD), OVHA, and OCS possess these records. Like the other parts of the former PATH, OCS is prohibited from revealing information relating to the receipt of social welfare or public assistance benefits.  DCF invokes this exemption.  Office of Vermont health access invokes this exemption to protect information submitted by eligible recipients.

179.

33 V.S.A. § 113(b) Information regarding the desertion and nonsupport of children (1967) 33 V.S.A. § 115(g) Office of child support; financial institutions match lists (1997)

(b) Information gathered under this section [desertion of children] shall be subject to the limitations in section 4105(c) of this title.

180.

(g) The information provided by the office to a financial institution under this section [office of child support match lists] shall be confidential and shall be used only for the purpose of carrying out the requirements of this section.

 OCS stated that it asserts this exemption. OCS must keep this information confidential. This is information that OCS accesses from other governmental entities and public utilities.  OVHA stated that it invokes this exemption.  OCS stated that it asserts this exemption to protect financial information shared with the office.

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181.

Statutory Citation & Year Enacted 33 V.S.A. § 304 Commissioner of social and rehabilitative services; rulemaking authority (1974)

Exemption

(b) In addition to other duties imposed by law, the commissioner shall: (1) Administer the laws assigned to the department. (2) Fix standards and issue regulations necessary to administer those laws and for the custody and preservation of records of the department. Those regulations shall contain provisions restricting the use or disclosure of information contained in the records to purposes directly connected with the administration of the department. As used in this subdivision, the word “records” includes records, papers, files and communications.

182.

33 V.S.A. § 306(c) Disclosure of findings regarding day care facilities (1997)

The commissioner may publicly disclose the findings or information about any case of child abuse or neglect that has resulted in the fatality of a child, including information obtained under chapter 49 of this title, unless the state’s attorney or attorney general who is investigating or prosecuting any matter involving the fatality requests the commissioner to withhold disclosure, in which case the commissioner shall not disclose any information until completion of any criminal proceedings involving the fatality or the state’s attorney or attorney general consents to disclosure, whichever occurs earlier. (d) Information released to an owner or operator under this section shall not be released or disclosed by the owner or operator to any other person. Release or disclosure of such information by an owner or operator may result in loss of license or registration.

183.

33 V.S.A. § 309(d) Day care facilities; information released to owner or operator of a facility regarding employees’ records of convictions (1991)

184.

33 V.S.A. § 908 Division of rate setting; nursing home employee salaries (1997)

Each nursing home or other provider shall file with the division, on request, such data, statistics, schedules or information as the division may require to enable it to carry out its function. Information received from a nursing home under this section shall be available to the public, except that the specific salary and wage rates of employees, other than the salary of an administrator, shall not be disclosed.

185.

33 V.S.A. § 2001(e)(1) Commissioner of PATH; fiscal report on pharmacy benefits (2001)

(d) On or before January 1, 2003, and on or before January 1 of each year for the duration of the pharmacy benefit manager contract, the commissioner of prevention, assistance, transition, and health access shall report to the house and senate committees on health and welfare, and to the health access oversight committee, concerning implementation of any pharmacy benefit manager contract entered into by the pharmacy best practices and cost control program.

Use, Justification, and Requested Clarification of Exemption  DCF invokes this privilege.

 DCF may assert this exemption, when its information does not related to a fatality of a child, or when the prosecutor requests that the information remain confidential until the conclusion of criminal proceedings or as otherwise specified in the statute.

 AHS invokes this privilege.

 AHS stated that this exemption preserves the confidentiality of trade secret or other proprietary information, particularly relating to prescription drug pricing. The exemption reflects similar protections that appear in federal law. VT LEG 207892.v1

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Exemption

Use, Justification, and Requested Clarification of Exemption

The report shall include: (1) a description of the activities of the pharmacy benefit manager; (2) an analysis of the success of the pharmacy benefit manager in achieving each of the department’s public policy goals, together with the pharmacy benefit manager’s report of its activities and achievements; (3) an assessment of Medicaid and VScript program administrative costs relating to prescription drug benefits, including any recommendations for increasing the administrative efficiency of such programs; (4) a fiscal report on the state fiscal costs and savings to Vermont of the pharmacy benefit manager contract, including an accounting of any payments, fees, offsets, savings and other financial transactions or accountings; (5) any recommendations for enhancing the benefits of the pharmacy benefit manager contract, and an identification of, and any recommendations for minimizing any problems with the contract; and (6) if the department has not entered into a contract with a pharmacy benefit manager, or if any such contract has been rescinded, any recommendations for pursuing Vermont’s public policy goals relating to pharmaceutical costs, quality and access through other means. (e)(1) The fiscal report required by subdivision (d)(4) of this section shall include the disclosure, in a manner that preserves the confidentiality of any proprietary information as determined by the commissioner, of: (A) any agreements entered into by the pharmacy benefit manager identified in subdivision (2) of this subsection; and (B) the financial impact of such agreements on Vermont, and on Vermont beneficiaries. (2) The commissioner shall not enter into a contract with a pharmacy benefit manager unless the pharmacy benefit manager has agreed to disclose to the commissioner the terms and the financial impact on Vermont and on Vermont beneficiaries of: (A) any agreement with a pharmaceutical manufacturer to favor the manufacturer’s products over a competitor’s products, or to place the manufacturer’s drug on the pharmacy benefit manager’s preferred list or formulary, or to switch the drug prescribed by the patient’s health care provider with a drug agreed to by the pharmacy benefit manager and the manufacturer; (B) any agreement with a pharmaceutical manufacturer to share manufacturer rebates and discounts with the pharmacy benefit manager, or to pay “soft money” or other economic benefits to the pharmacy benefit manager; (c) any agreement or practice to bill Vermont health benefit plans for prescription drugs at a cost higher than the pharmacy benefit manager pays the VT LEG 207892.v1

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pharmacy; (D) any agreement to share revenue with a mail order or internet pharmacy company; (E) any agreement to sell prescription drug data concerning Vermont beneficiaries, or data concerning the prescribing practices of the health care providers of Vermont beneficiaries; or (F) any other agreement of the pharmacy benefit manager with a pharmaceutical manufacturer, or with wholesale and retail pharmacies, affecting the cost of pharmacy benefits provided to Vermont beneficiaries. 186.

33 V.S.A. § 2002(c) Commissioner of PATH; company-identifiable trade secrets (2001)

187.

33 V.S.A. § 2005 Pharmaceutical trade secrets (2001)

188.

33 V.S.A. § 4105 Office of child support; information collected regarding parental rights or support (1997)

The commissioner and the department shall prohibit the public disclosure of information revealing company-identifiable trade secrets (including rebate and supplemental rebate amounts, and manufacturer’s pricing) obtained by the department, and by any officer, employee or contractor of the department in the course of negotiations conducted pursuant to this section. Such confidential information shall be exempt from public disclosure under subchapter 3 of chapter 5 of Title 1 (open records law). (3) The office of the attorney general shall keep confidential all trade secret information, as defined by subdivision 317(b)(9) of Title 1. The disclosure form shall permit the company to identify any information that is a trade secret. (4) The following shall be exempt from disclosure: (A) free samples of prescription drugs intended to be distributed to patients; (B) the payment of reasonable compensation and reimbursement of expenses in connection with bona fide clinical trials; (c) any gift, fee, payment, subsidy or other economic benefit the value of which is less than $25.00; (D) scholarship or other support for medical students, residents and fellows to attend a significant educational, scientific, or policy-making conference of a national, regional, or specialty medical or other professional association if the recipient of the scholarship or other support is selected by the association; (E) unrestricted grants for continuing medical education programs; and (F) prescription drug rebates and discounts.

 AHS stated that this exemption preserves the confidentiality of trade secret or other proprietary information, particularly relating to prescription drug pricing. The exemption reflects similar protections that appear in federal law.

(a) The office of child support may subpoena from any person or business any information needed to establish, modify, or enforce a child support or parental rights and responsibilities order. The subpoena shall be signed by the director of the office of child support or a designee of the office of child support. It shall be attached to an affidavit which certifies that the person about whom information is sought is the parent of a child based on either a court order or a statutory

 OCS stated that this statutes obligates OCS to protect information it obtains through administrative subpoena and any other information it retrieves from other governmental entities.

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189.

33 V.S.A. § 4305 Departments of developmental and mental health services, social and rehabilitation services, and education; rules regarding confidentiality of children (1987)

Exemption

presumption, that the office of child support has been requested to provide financial information under section 4102 of this title, and that the information sought is needed to establish, modify, or enforce a child support or parental rights and responsibilities order or to determine if such action is necessary. (b) The office of child support may request any information needed to establish, modify, or enforce a child support or parental rights and responsibilities order or to locate any person alleged to be a parent owing a duty of support from the records of all governmental officials, departments and other governmental agencies of this state without a subpoena. The officials and employees of the departments and other agencies shall provide all such information requested. Only information directly bearing on the identity and whereabouts of parents or alleged parents or their assets or income may be requested, used or transmitted by the office of child support under this section. Any information provided by the tax department shall include information about assets held by or income attributable to the parent jointly with any other person. (c) Except as otherwise provided in this chapter, chapter 11 of Title 15 and Title 15B, information furnished the office of child support shall be made available only to the person requesting services or to the person’s attorney, the person to whom the information relates and the family court. Any other use of the information shall be prohibited. A person who violates this subsection shall be fined not more than $500.00. Any individual aggrieved by a violation of this section may bring an action for civil damages, including punitive damages, equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney’s fees and other appropriate relief. (d) Any person objecting to a subpoena may request an administrative review of its issuance by the office of child support or may request that the subpoena be modified or vacated pursuant to 3 V.S.A. § 809b. A request for review under this subsection shall be brought in family court. Failure to comply with a subpoena may result in enforcement pursuant to 3 V.S.A. § 809a . (b) The state board of education and the departments of developmental and mental health services and social and rehabilitation services shall jointly adopt rules by January 1, 1991 implementing the provisions of this chapter. Such rules shall: *** (2) protect the rights of children and adolescents and their parents and guardians concerning consent and confidentiality; ***

Use, Justification, and Requested Clarification of Exemption

 AHS stated that several departments, including DAIL, DCF, VDH, and the department of education, are charged with rulemaking to protect the rights of children and adolescents and their parents and guardians regarding consent and confidentiality

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190.

Statutory Citation & Year Enacted 33 V.S.A. § 4702(b) Confidentiality of children at risk of school failure (1993)

Exemption

Use, Justification, and Requested Clarification of Exemption

(b) The secretary of human services and the commissioner of education shall develop and implement, through community-based organizations, a coordinated system of state and local agencies that identifies children at risk of school failure, makes available to them and their families, as eligible and willing, coordinated early education and support services individually designed with each family and based on a family’s identified needs, and encourages parents to use these services. After an informational meeting and prior to family participation in any screenings or services to be conducted in the home, the provider visiting the home shall explain the confidentiality policies and abuse and neglect reporting requirements. A parent shall be required to sign a form acknowledging their awareness of these policies and requirements. All services shall be voluntary, and when a local community chooses to offer services in the home, an alternative site shall be provided for families desiring services but not home visits.

191.

33 V.S.A. § 4913(d) Name of person reporting suspected child abuse (1981)

The name of the person making the report, or any person mentioned in the report shall be confidential unless the person making the report specifically requests disclosure or unless a judicial proceeding results therefrom or unless a court, after a hearing, finds probable cause to believe that the report was not made in good faith and orders the department to make the name available.

192.

33 V.S.A. § 4916 Records of abuse and neglect (1989)

(f) A person receiving information under this subsection shall not disclose that information to persons who are not involved with the provision of treatment services under section 4915 of this title to the abused or neglected child.

193.

33 V.S.A. § 4919 Child abuse registry (2003)

(a) The commissioner shall maintain a registry which shall contain the following information: the names of all the individuals found on the basis of a substantiated report to have abused, neglected or exploited a child; the date of the finding; and the nature of the finding. In addition, the commissioner shall require that, aside from a person’s name, at least one other personal identifier is listed in the registry to prevent the possibility of misidentification. (b) The commissioner or the commissioner’s designee may disclose registry information only: (1) To the state’s attorney or the attorney general; (2) To the owner or operator of a facility regulated by the department for the

 DCF invokes this exemption to safeguard the identity of the person making a report of suspected child abuse. The exemption recognizes that the identity of a reporter should be shielded, as specified in the statute, to encourage the making of good faith reports.

 DCF stated that information that appears on the registry is closely regulated. DCF relies on this exemption, as required by the statute.

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purpose of informing the owner or operator that employment of a specific individual may result in loss of license or registration; (3) To an employer if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, or supervision of children or vulnerable adults. The employer may submit a request concerning a current employee, volunteer, or contractor or an individual to whom the employer has given a conditional offer of a contract, volunteer position, or employment. The request shall be accompanied by a release signed by the current or prospective employee, volunteer, or contractor. If that individual has a record of a substantiated report, the commissioner shall provide the registry information to the employer; (4) To the commissioner of disabilities, aging, and independent living, or the commissioner’s designee, for purposes related to the licensing or registration of facilities regulated by the department of disabilities, aging, and independent living; (5) To the commissioner of health or of disabilities, aging, and independent living, or the commissioner’s designee, for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by the departments of health and of disabilities, aging, and independent living, including persons to whom a conditional offer of employment has been made; (6) Upon request or when relevant to other states’ adult protective services offices; and (7) Upon request or when relevant to other states’ child protection agencies. (c) Volunteers shall be considered employees for purposes of this section. (d) Disclosure of information or records used or obtained in the course of providing services to prevent child abuse or neglect or to treat abused or neglected children and their families by one member of a multidisciplinary team to another member of that team shall not subject either member of the multidisciplinary team, individually, or the team as a whole, to any civil or criminal liability notwithstanding any other provision of law. (e) “Employer,” as used in this section, means a person or organization who employs or contracts with one or more individuals to care for children or vulnerable adults, on either a paid or volunteer basis. 194.

33 V.S.A. § 5506 Records of juvenile transfer of jurisdiction hearings (1981)

(i) The record of a hearing conducted under subsection (c) and any related files shall be open to inspection only by persons specified in 33 V.S.A. § 5536(b) and (c), and by the attorney for the child.

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195.

Statutory Citation & Year Enacted 33 V.S.A. § 5523(c) Juvenile court proceedings (1967)

Exemption

(c) Except in hearings to declare a person in contempt of court, the general public shall be excluded from hearings under this chapter and only the parties, their counsel, witnesses, and other persons accompanying a party for his or her assistance and such other persons as the court finds to have a proper interest in the case or in the work of the court, may be admitted by the court. If the court finds that it is to the best interest and welfare of the child, the child’s presence may be temporarily excluded, except while a charge of delinquency is being heard at the hearing on the petition.

196.

33 V.S.A. § 5527 Juvenile court; continuation of hearing; disposition report (1967)

(c) If, at the continuation of hearing, the court finds after consideration of the disposition report that the child is not in need of treatment or rehabilitation, it shall dismiss the proceeding and discharge the child from any detention or other temporary care theretofore ordered therein, and all files and documents relating thereto shall be sealed under section 5538 of this title, or, if the proceeding was before the juvenile court upon a transfer under section 5505(b) of this title, may direct the retransfer of the proceeding to the court from which such transfer was initially made, for further proceedings under the criminal laws of this state. Notwithstanding the other provisions of this chapter, in the event of such retransfer, all of the records and files of the juvenile court relating to that proceeding shall be delivered to that court to which such retransfer is made. (d) In a continuation of hearing held pursuant to section 5526(b) of this title in order to determine the disposition to be made, all information helpful in determining the questions presented, including oral and written reports and including the disposition report submitted under this section, may be admitted and may be relied upon to the extent of its probative value, even though not competent in the initial hearing on the petition. The parties or their counsel shall be afforded an opportunity to examine those making the reports but sources of confidential information need not be disclosed.

197.

33 V.S.A. § 5536 Juvenile court records (1969)

(a) Court and law enforcement reports and files concerning a person subject to the jurisdiction of the juvenile court shall be maintained separate from the records and files of other persons. Unless a charge of delinquency is transferred for criminal prosecution under this act or the court otherwise orders in the interests of the child, such records and files shall not be open to public inspection nor their contents disclosed to the public by any person. However, upon a finding that a child is a delinquent child by reason of commission of a delinquent act which would have been a felony if committed by an adult the court, upon request of the victim, shall make the child’s name available to the

Use, Justification, and Requested Clarification of Exemption  DCF stated that it relies on this exemption. Like the courts, prosecutors, and other persons permitted to attend juvenile court proceedings, DCF asserts this exemption consistent with its statutory responsibility to maintain juvenile court proceedings as confidential.

 Dept. of public safety stated that it uses this exemption.

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victim of the delinquent act. If the victim is incompetent or deceased, the child’s name shall be released, upon request, to the victim’s guardian or next of kin. (b) Notwithstanding the foregoing, inspection of such records and files by the following is not prohibited: (1) A juvenile court having the child before it in any proceeding; (2) The officers of public institutions or agencies to whom the child is committed as a delinquent child; (3) A court in which a person is convicted of a criminal offense for the purpose of imposing sentence upon or supervising the person, or by officials of penal institutions and other penal facilities to which the person is committed, or by a parole board in considering the person’s parole or discharge or in exercising supervision over the person; (4) Court personnel, the state’s attorney or other prosecutor authorized to prosecute criminal or juvenile cases under state law, the child’s guardian ad litem, the attorneys for the parties, probation officers and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the child; (5) The child who is the subject of the proceeding, the child’s parents and guardian may inspect such records and files upon approval of the family court judge; (6) Any other person who has a need to know may be designated by order of the family court. Records and files inspected under this subdivision shall be marked: UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00. (c) Such records and files shall be available to state’s attorneys and all other law enforcement officers in connection with record checks and other legal purposes. (d) Any records or reports relating to a matter within the jurisdiction of the juvenile court prepared by or released by the court or the department of social and rehabilitation services, any portion of those records or reports, and information relating to the contents of those records or reports, shall not be disseminated by the receiving persons or agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section. 198.

33 V.S.A. § 5536a Limited exception to confidentiality of juvenile records (1997)

(a) While records of juveniles maintained by the family court should be kept confidential, it is the policy of the general assembly to create through this section a limited exception for the overriding public purposes of rehabilitating juveniles and protecting students and staff within Vermont’s public and independent schools. VT LEG 207892.v1

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Use, Justification, and Requested Clarification of Exemption

(b) Notwithstanding any law to the contrary, a court finding that a child has committed a delinquent act requiring notice shall, within seven days of such finding, provide written notice to the superintendent of schools for the public school in which the child is enrolled or, in the event the child is enrolled in an independent school, the school’s headmaster. (c) For the purposes of this section: (1) a “delinquent act requiring notice” means conduct resulting in a delinquency adjudication related to a listed crime as defined in 13 V.S.A. § 5301(7); and (2) an “independent school” means an approved or recognized independent school under 16 V.S.A. § 166. (d) The written notice shall contain only a description of the delinquent act found by the court to have been committed by the child and shall be marked “UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.” The envelope in which the notice is sent by the court shall be marked “CONFIDENTIAL: TO BE OPENED BY THE SUPERINTENDENT (OR HEADMASTER) ONLY.” (e) The superintendent or headmaster, upon receipt of the notice, shall inform only those within the child’s school with a legitimate need to know of the delinquent act, and only after first evaluating rehabilitation and protection measures that do not involve informing staff or students. Persons with a legitimate need to know are strictly limited to only those for whom the information is necessary for the rehabilitation program of the child or for the protection of staff or students; “need to know” shall be narrowly and strictly interpreted. Persons receiving information from the superintendent or headmaster shall not, under any circumstances, discuss such information with any other individual except the child, the child’s parent or guardian, others who have been similarly informed by the superintendent or headmaster, law enforcement personnel, or the juvenile’s probation officer. (f) The superintendent and headmaster annually shall provide training to school staff about the need for confidentiality of such information and the penalties for violation of this section. (g) The written notice shall be maintained by the superintendent or headmaster in a file separate from the child’s education record. If the child transfers to another public or independent school contemplated by this section, the superintendent or headmaster shall forward the written notice in the original marked envelope to the superintendent or headmaster for the school to which the child transferred. If the child either graduates or turns 18 years of age, the superintendent or headmaster then possessing the written notice shall destroy such notice. VT LEG 207892.v1

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Use, Justification, and Requested Clarification of Exemption

(h) If custody of the child is transferred to the commissioner, or if the commissioner is supervising the child’s probation, upon the request by a superintendent or headmaster, the commissioner shall provide to the superintendent or headmaster information concerning the child which the commissioner determines is necessary for the child’s rehabilitation or for the protection of the staff or students in the school in which the child is enrolled. (i) A person who intentionally violates the confidentiality provisions of this section shall be fined not more than $2,000.00. (j) Except as provided in subsection (i) of this section, no liability shall attach to any person who transmits, or fails to transmit, the written notice required under this section.

199.

33 V.S.A. § 5538 Records regarding child in need of supervision (1967)

(a) On application of a child who has been adjudicated delinquent or in need of care or supervision, or on the court’s own motion, and after notice to all parties of record and hearing, the court shall order the sealing of all files and records of the court applicable to the proceeding if it finds; (1) Two years have elapsed since the final discharge of the person, (2) He has not been convicted of a felony or misdemeanor involving moral turpitude or adjudicated delinquent or in need of care or supervision after such initial adjudication and prior to the hearing and no proceeding is pending seeking such conviction or adjudication, and (3) His rehabilitation has been attained to the satisfaction of the court. The application or motion and the order may include the files and records specified in sections 5536 and 5537 of this title. (b) Notice of a hearing held under this section shall in any event be given to: (1) The state’s attorney having jurisdiction, (2) If the final discharge was from an institution or from parole, the authority granting the discharge, and (3) If the files and records specified in sections 5536 and 5537 of this title are included in the application or motion, the law enforcement officers or department having custody of the files and records. (c) Upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this act shall be considered never to have occurred, all index references thereto shall be deleted, and the person, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter. Copies of the order shall be sent to each agency or official named VT LEG 207892.v1

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therein. (d) Inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of such records, and only to those persons named therein. (e) On application of a person who has pleaded guilty to or has been convicted of the commission of a crime committed under the laws of this state prior to attaining the age of majority, or on the motion of the court having jurisdiction over such a person, the files and records may be sealed after proceedings in conformity with and subject to the limitations of subsections (a), (b), (c) and (d) of this section. 200.

201.

202.

203.

33 V.S.A. § 6321(c) Attendant care services (1989) 33 V.S.A. § 6705 PATH; subrogation medical care records (1989)

33 V.S.A. § 6903 Identity of persons reporting suspected abuse, neglect and exploitation of elderly or disabled adults (1989) 33 V.S.A. § 6911 Records of abuse, neglect and exploitation of the elderly or disabled (1993)

(c) Information received or compiled by the department with respect to individuals using attendant care services shall be confidential.

 DAIL invokes this exemption.

(b) The department or its designee shall be entitled to obtain from any medical service provider any records of the treatment of any individual covered by subsection (a) of this section which are in any way relevant to the treatment paid for through medical assistance without regard to any other privilege or right of confidentiality or privacy which may exist. The department shall ensure that any records obtained are not released to any other individual, agency or other entity except insofar as is necessary to pursue the department’s rights of subrogation.

 OVHA invokes this privilege.

(c) The identity of a person who makes a report under this section shall be kept confidential unless (1) the person making the report consents to disclosure; or (2) a judicial proceeding results from the report; or (3) a court, after a hearing, finds probable cause to believe the report was not made in good faith and orders the department to disclose the person’s identity.

 DAIL invokes this exemption.

(a) Information obtained through reports and investigations, including the identity of the reporter, shall remain confidential and shall not be released absent a court order, except as follows: (1) The investigative report shall be disclosed only to: the commissioner or person designated to receive such records; persons assigned by the commissioner to investigate reports; the person reported to have abused, neglected or exploited a vulnerable adult; the vulnerable adult or his or her representative; the office of professional regulation when deemed appropriate by the commissioner; a law enforcement agency, the state’s attorney, or the

 Dept. of public safety stated that it uses this exemption.  DAIL stated that it relies on the statutory protection that exempts reports and investigations concerning elderly or disabled persons from disclosure. DAIL is permitted to release the investigative report to specified persons/entities, such as a law enforcement agency, a prosecutor, and the office of professional regulation. Otherwise, and in the absence of a court order, these materials, including the name of the reporter, are not VT LEG 207892.v1

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Exemption

Use, Justification, and Requested Clarification of Exemption

office of the attorney general, when the department believes there may be grounds for criminal prosecution, or in the course of a criminal investigation. When disclosing information pursuant to this subdivision, reasonable efforts shall be made to limit the information to the minimum necessary to accomplish the intended purpose of the disclosure, and no other information, including the identity of the reporter, shall be released absent a court order. (2) Relevant information may be disclosed to the secretary of the agency of human services, or the secretary’s designee, for the purpose of remediating or preventing abuse, neglect, or exploitation, to assist the agency in its monitoring and oversight responsibilities, and in the course of a relief from abuse proceeding, guardianship proceeding, or any other court proceeding when the commissioner deems it necessary to protect the victim, and the victim or his or her representative consents to the disclosure. When disclosing information pursuant to this subdivision, reasonable efforts shall be made to limit the information to the minimum necessary to accomplish the intended purpose of the disclosure, and no other information, including the identity of the reporter, shall be released absent a court order. (b) The commissioner shall maintain a registry which shall contain the following information: the names of all the individuals found on the basis of a substantiated report to have abused, neglected or exploited a vulnerable adult; the date of the finding; and the nature of the finding. In addition, the commissioner shall require that, aside from a person’s name, at least one other personal identifier is listed in the registry to prevent the possibility of misidentification. (c) The commissioner or the commissioner’s designee may disclose registry information only to: (1) the state’s attorney or the attorney general; (2) the public as required by the Nursing Home Reform Act of 1986 and regulations thereunder; (3) an employer if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, or supervision of children or vulnerable adults. “Employer,” as used in this section, means a person or organization who employs or contracts with one or more individuals to care for children or vulnerable adults, on either a paid or volunteer basis. The employer may submit a request concerning a current employee, volunteer, or contractor or an individual to whom the employer has given a conditional offer of a contract, volunteer position, or employment. The request shall be accompanied by a release signed by the current or prospective employee, volunteer, or contractor. If that individual has a record of a substantiated report,

disclosed.  VDH stated that the mental health division occasionally is involved in reports pertaining to patients at the State Hospital. The Mental Health Division treats such information as confidential.

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the commissioner shall provide the registry information to the employer; (4) a person or organization serving vulnerable adults by assisting with employer functions, offering, providing, or arranging for home sharing, or providing personal care services, developmental services, or mental health services for vulnerable adults. The person or organization may submit a request concerning an individual who has applied to provide such services or an individual who is already so engaged. The request shall be in writing and shall be accompanied by a release from the person applying for or already providing such services. If the person has a record of a substantiated report, the commissioner shall provide the registry information; (5) the commissioner of social and rehabilitation services, or the commissioner’s designee, for purposes related to the licensing or registration of facilities regulated by the department of social and rehabilitation services; (6) the commissioner of developmental and mental health services, or the commissioner’s designee, for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by the department of developmental and mental health services, including persons to whom a conditional offer of employment has been made; and (7) upon request or when relevant to other states’ adult protective services offices. (d) A person may, at any time, apply to the human services board for relief if he or she has reasonable cause to believe that the contents of the registry or investigative records are being misused. (e) A person may at any time apply to the department for expungement of his or her name from the registry. The petitioner shall have the burden of showing why his or her name should be expunged from the registry. (f) Any person who violates this section shall be fined not more than $500.00. (g) Volunteers shall be considered employees for purposes of this section.

204.

33 V.S.A. § 7112 Nursing homes; identity of complainants (1997)

(a) Information received by the licensing agency through filed reports, inspection, or as otherwise authorized under this chapter, except information that pertains to unsubstantiated complaints or the identity of residents and complainants, shall be made available to the public. (b) Prior to release of information the commissioner shall consult with representatives from the nursing home industry and the office of state long-term care ombudsman to develop: (1) Guidelines for the release of information to the public that ensure the confidentiality and privacy of complainants and individuals who are receiving

 DAIL invokes this exemption.

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or have received care or services in nursing facilities in conformance with state and federal requirements. (2) Indicators, derived from information databases maintained by the licensing agency and the division of rate setting, that shall be disseminated to consumers in a readily understandable format designed to facilitate consumers’ ability to compare the quality of care provided by nursing facilities. The commissioner shall continually update quality indicators and refine and improve the information disseminated to consumers. 205.

33 V.S.A. § 7301 Nursing home residents’ bill of rights (1985)

(2) The staff of the facility shall ensure that, at least, each individual admitted to the facility: *** (H) is assured confidential treatment of the resident’s personal and medical records, and may approve or refuse their release to any individual outside the facility, except, in case of the resident’s transfer to another health care institution, or as required by law or third-party payment contract;

206.

33 V.S.A. § 7503 Office of state long term care ombudsman; confidentiality rules (1989)

(6) Establish by rule procedures for protecting the confidentiality of its clients as required by the Older Americans Act.

 DAIL invokes this exemption.

Glossary of Acronyms Used in Above Table ACCD: Agency of Commerce and Community Development OCS: Office of Child Support AHS: Agency of Human Resources OVHA: Office of Vermont Health Access ANR: Agency of Natural Resources PATH: Department of Prevention, Assistance, Transition & Independent Living BISHCA: Department of Banking, Insurance, Securities, and Health Care Administration PRA: Public Records Act DAIL: Department of Aging and Independent Living VDH: Vermont Department of Health DCF: Department of Children and Families VEPC: Vermont Economic Progress Council DHR: Department of Human Resources VLCT: Vermont League of Cities and Towns DMV: Department of Motor Vehicles VSA: Vermont Statutes Annotated HRC: Human Rights Commission

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Appendix B Proposed Legislation to Amend, Reorganize, and Simplify the Public Records Requirements of the State of Vermont Pursuant to Subdivision 4(7) of No. 132 of the Acts of the 2005 Adj. Sess. (2006)

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Page 1 (1.3)

AN ACT RELATING TO THE MANAGEMENT OF PUBLIC RECORDS

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It is hereby enacted by the General Assembly of the State of Vermont:

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Sec. 1. 1 V.S.A. § 316 is amended to read:

4

§ 316. ACCESS TO PUBLIC RECORDS AND DOCUMENTS

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***

6

(c) In the following instances an agency may also charge and collect the

7

cost of staff time associated with complying with a request for a copy of

8

copying or redacting a requested public record: (1) the time directly involved

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in complying with the request exceeds 30 minutes; (2) the agency agrees to

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create a public record; or (3) the agency agrees to provide the public record in

11

a nonstandard format and the time directly involved in complying with the

12

request exceeds 30 minutes. The cost of staff time charged under this

13

subsection shall not include the first 30 minutes of staff time associated with

14

complying with a request to inspect or copy a public record and shall not

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include the costs of locating, retrieving, or refiling a requested public record.

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The rate charged by an agency for staff time shall not exceed $20.00 per hour.

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Prior to charging for staff time and within three days of receiving a request, the

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agency shall provide to the person making the public records request an

19

estimate of the time necessary to complete the request and of the total cost. If VT LEG 207892.v1

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the record request involves an unusual circumstance that requires an extension

2

of the time limits for response, as set forth in subdivision 381(a)(5) of this title,

3

the requirement for an estimate shall also be extended until the agency has

4

gathered sufficient information on which to base an estimate. The agency may

5

require that requests subject to staff time charges under this subsection be

6

made in writing and that all charges be paid, in whole or in part, prior to

7

delivery of the copies. Upon request, the agency shall provide an estimate of

8

the charge.

9

(d) The secretary of state, after consultation with the secretary of

10

administration, shall establish the actual cost of providing a copy of a public

11

record that may be charged by state agencies. The secretary shall also

12

establish the amount that may be charged for staff time, when such a charge is

13

authorized under this section. To determine “actual cost” cost,” the secretary

14

shall consider the following only: the cost of the paper or the electronic media

15

onto which a public record is copied, a prorated amount for maintenance and

16

replacement of the machine or equipment used to copy the record and any

17

utility charges directly associated with copying a record. The secretary of state

18

shall adopt, by rule, a uniform schedule of public record charges for state

19

agencies.

20

(e) After public hearing, the legislative body of a political subdivision shall

21

establish actual cost charges for copies of public records. The legislative body

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shall also establish the amount that may be charged for staff time, when such a

2

charge is authorized under this section. To determine actual cost charges, the

3

legislative body shall use the same factors used by the secretary of state. If a

4

legislative body fails to establish a uniform schedule of charges, the charges

5

for that political subdivision shall be the uniform schedule of charges

6

established by the secretary of state until the local legislative body establishes

7

such a schedule. A schedule of public records charges shall be posted in

8

prominent locations in the town offices.

9

***

10

Sec. 2. 1 V.S.A. § 318 is amended to read:

11

§ 318. PROCEDURE

12

***

13

(b) Any person making a request to any agency for records under

14

subsection (a) of this section shall be deemed to have exhausted his the

15

person’s administrative remedies with respect to each request if the agency

16

fails to comply within the applicable time limit provisions of this section.

17

Upon any determination by an agency to comply with a request for records, the

18

records shall be made available promptly to the person making such request.

19

Any notification of denial of any request for records under this section shall set

20

forth the names and titles or positions of each person responsible for the denial

21

of such request.

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(c) Any denial of access by the custodian of a public record may be

2

appealed to the head of the agency. The head of the agency shall make a

3

written determination on an appeal within five business days after the receipt

4

of the appeal. A written determination shall include the asserted statutory basis

5

for denial and a brief statement of the reasons and supporting facts for denial.

6

If the denial of a request for records is in whole or in part upheld, the agency

7

shall notify the person of the right under section 318a of this title to petition the

8

public records advisory office for an advisory opinion as to the propriety of the

9

agency’s denial of the request. If the head of the agency reverses the denial of

10

a request for records, the records shall be promptly made available to the

11

person making the request. A failure by the agency to comply with any of the

12

time limit provisions of this section shall be deemed a final denial of the

13

request for records by the agency.

14

Sec. 3. 1 V.S.A. § 318a is added to read:

15

§ 318a. PUBLIC RECORDS ADVISORY OPINION

16

(a) Any person aggrieved by a denial of a request for public records under

17

this subchapter may petition the public records advisory office within the

18

office of the secretary of state for an advisory opinion regarding the propriety

19

of an agency’s denial of a request. A petition for an advisory opinion from the

20

public records advisory office shall be in writing and shall be made within 10

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business days of a final, written, adverse determination by the agency or within

2

10 business days of the agency’s failure to comply with applicable time limits.

3

(b) The public records advisory office shall issue an advisory opinion

4

within 15 business days of receipt of a petition under subsection (a) of this

5

section. When a petition for an advisory opinion poses novel or significant

6

issues of law or policy, the office may extend the time limit for its response to

7

30 business days upon written notice to the person petitioning for the opinion.

8

The public records advisory office shall file a copy of a final advisory opinion

9

in certified form with the secretary of state and shall transmit a copy of the

10

opinion to the person that petitioned for the opinion and the agency that denied

11

the public records request.

12

Sec. 4. 1 V.S.A. § 321 is added to read:

13

§ 321. PUBLIC RECORDS ACT REVIEW COMMITTEE

14

(a) There is established a committee to review the requirements of the

15

public records act and the numerous exemptions to that act in order to assure

16

the integrity, viability, and the ultimate purposes of the act. The review

17

committee shall consist of the following members:

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(1) One member of the senate appointed by the committee on committees; (2) One member of the house of representatives appointed by the speaker of the house;

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(3) The attorney general, or his or her designee;

2

(4) The secretary of administration or his or her designee;

3

(5) The state archivist, or his or her designee;

4

(6) One representative of municipal interests, appointed by the

5 6 7 8 9 10 11 12

committee on committees; (7) One representative of newspaper publishers, broadcasters, or other press interests appointed by the speaker of the house; (8) One representative of school or educational interests, appointed by the governor; and (9) One representative of a statewide coalition of advocates of freedom of access, appointed by the speaker of the house. (b) The review committee shall review and analyze each of the exemptions

13

in statute to the review and disclosure of public records required by section 317

14

of this title. Prior to each legislative session, the committee shall report to the

15

house and senate committees on government operations and the house and

16

senate committees on judiciary with recommendations concerning whether any

17

public records act exemption should be repealed, amended, or remain

18

unchanged. The report of the committee may take the form of draft legislation.

19

(c) In reviewing and making recommendation regarding an existing public

20

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review the following criteria: (1) Whether a record protected by an exemption is required to be collected and maintained; (2) The value to an agency or to the public in maintaining a record protected by the exemption;

6

(3) Whether federal law requires a record to be confidential;

7

(4) Whether the exception protects an individual’s privacy interest and,

8

if so, whether that interest substantially outweighs the public interest in the

9

disclosure of records;

10

(5) Whether public disclosure puts a business at a competitive

11

disadvantage and, if so, whether that business’s interest substantially

12

outweighs the public interest in the disclosure of records;

13

(6) Whether public disclosure compromises the position of a public

14

agency in negotiations and, if so, whether that public agency’s interest

15

substantially outweighs the public interest in the disclosure of records;

16

(7) Whether public disclosure jeopardizes the safety of a member of the

17

public or the public in general and, if so, whether that safety interest

18

substantially outweighs the public interest in the disclosure of records;

19

(8) Whether the exception is as narrowly tailored as possible; and

20

(9) Any other criteria that assist the review committee in determining VT LEG 207892.v1

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the value of the exception as compared to the public’s interest in the record

2

protected by the exception.

3

(d) The review committee may hold public hearings and solicit the input of

4

interested parties regarding exemptions under its review. The agency of

5

administration and the office of the attorney general shall provide staff services

6

to the committee. Members of the committee may receive a per diem and

7

expenses pursuant to section 1010 of Title 32.

8

Sec. 5. 3 V.S.A. chapter 5, subchapter 4 is added to read:

9 10 11

Subchapter 4. Public Records Advisory Office § 140. PUBLIC RECORDS ADVISORY OFFICE (a) A public records advisory office is created within the office of the

12

secretary of state. The public records advisory office shall have a director and

13

necessary staff. The director of the public records advisory office shall be

14

appointed by the secretary of state and shall be an exempt employee.

15 16

(b) The duties of the public records advisory board shall include the following:

17

(1) Issue advisory opinions under 1 V.S.A. § 318a to interpret the public

18

records law of the state upon the request of a person. However, the board may

19

not issue an advisory opinion concerning a specific matter with respect to

20

which a lawsuit has been filed under 1 V.S.A. § 319;

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(2) Provide public agencies with legal guidance and advisory opinions

2

regarding public records requests under chapter 5 of Title 1 and disposal of

3

public records; and

4

(3) Consult with and provide legal advice to the office of the state

5

archives, commissioner of buildings and general services, and the department

6

of information and innovation regarding records management requirements for

7

public agencies.

8

Sec. 6. 18 V.S.A. § 5001 is amended to read:

9

§ 5001. VITAL RECORDS; FORMS OF CERTIFICATES

10

(a) Certificates of birth, marriage, civil union, divorce, death and fetal death

11

shall be in form prescribed by the commissioner of health and distributed by

12

the health department.

13

(b) Beginning January 1, 2008, all certificates of birth, marriage, civil

14

union, divorce, death, and fetal death shall be issued on unique paper with anti-

15

fraud features approved by the commissioner of health and available from the

16

health department.

17

Sec. 7. APPROPRIATIONS

18

In addition to any other funds appropriated to the office of the secretary of

19

state in fiscal year 2008, there is appropriated from the general fund to the

20

office of the secretary of state $150,000.00 in fiscal year 2008 for the purpose

21

of establishing the public records advisory office.

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Sec. 8. REPEAL 22 V.S.A. §§ 456 (public records advisory board) and 457 (duties of public records advisory board) are repealed.

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