Supreme Court Hears Records Case in Which Burlington Schools Sued Seven Days | Off Message
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Wednesday, May 15, 2019

Supreme Court Hears Records Case in Which Burlington Schools Sued Seven Days

Posted By on Wed, May 15, 2019 at 7:26 PM

click to enlarge Vermont Supreme Court justices during oral arguments Wednesday - DEREK BROUWER
  • Derek Brouwer
  • Vermont Supreme Court justices during oral arguments Wednesday
The Vermont Supreme Court heard oral arguments Wednesday in a public records case involving the Burlington School District and Seven Days that could have implications for how Vermont agencies handle thorny requests.

Last June, the Burlington School District had a small but potentially costly decision to make. Adam Provost, the Burlington Technical Center's interim director, had resigned in January 2018 after months on administrative leave, citing medical reasons. Seven Days requested a copy of the resignation agreement between Provost and the district.

District officials believed the resignation agreement was a public document. Provost did not, and he threatened to sue the district if it gave the unredacted agreement to Seven Days.

Rather than respond to the records request, the district asked a judge to decide, by making what in legal parlance is known as a request for declaratory judgment.

The move put Seven Days in the unusual position of being sued simply because it had asked for records. The suit also named Provost.
In October, the Superior Court in Chittenden County ordered the district to release the records after Provost's attorney, Craig Weatherly, missed a filing deadline.

Provost appealed to the Vermont Supreme Court, arguing that the legal maneuver used by the school district is barred by state law. Threats of legal action, Weatherly said Wednesday, should not enable a public agency to shift its responsibility to respond to a records request to the courts.

"This is a really important question that has implications for document requests that will be made hereafter," Weatherly said.

Burlington Schools, represented by attorney Joseph Farnham, acknowledged that the district's approach was highly unusual, but said it was the "most cost-effective and efficient" way to resolve the dispute.

"We were trying to get to the heart of the matter," he said.

Seven Days took the position that the district's approach was legal while also expressing concern that it could be misused to quash unwelcome requests from news organizations or citizens that can't afford a legal battle.

"We find ourselves in somewhat of a dilemma," the newspaper's attorney, Tom Little, told justices. "The trial court ordered the release of the unredacted record, which was our desired result. However, this happened outside our typical public records process, where the requester has a choice of whether to pursue litigation when their public records requests are denied."

Seven Days had filed a counterclaim in the lower court to require the school district to pay attorney's fees. Judge Helen Toor denied that claim.

Little pressed the issue of attorney's fees again Wednesday, calling it a "fiction" that the school district was "trying its best to release the record."

Justice Beth Robinson asked Little if he thought the risk of having to pay a requester's attorney's fees might be a "guardrail" against future "mischief" by public agencies. 

"I think it would have a custodian [of records] think twice before going down that path," Little said.

The court will issue a ruling in the coming weeks. 

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