Public Records Management

Requests to copy or inspect a record – by anyone, regardless of identity, or motivation – must be managed by the custodian in accordance with the procedure prescribed by the PRA. See 1 V.S.A. 318. The PRA requires that towns make their public records accessible to the public “promptly” for copying and inspection during “customary business hours.” It defines “promptly” to mean “immediately, with little or no delay, and, unless otherwise provided…not more than three business days from receipt of a request…” 1 V.S.A. § 318(a)(1). The law does not require the town to create a public record that doesn’t exist, nor does it require transmission of a record by any means (including U.S. mail, email, fax, etc.). Nevertheless, local officials may choose to create and/or transmit a public record upon request. 

These details can change when the Legislature decides to revise them, so the best source of up to date information is the law and our Public Records Act FAQs. 

Exemptions

Access to a public record must be provided unless the record is exempt from inspection or copying under the PRA. General exemptions are listed in 1 V.S.A. § 317(c) and include other records “designated by law as confidential.” The Office of Legislative Counsel compiles the list of all PRA exemptions found in the Vermont Statutes Annotated and publishes this information on the General Assembly’s Reports and Research webpage. While there are many possible exemptions, the Vermont Supreme Court has made clear that exemptions are strictly construed against the custodian and any doubt as to whether an exemption applies must be resolved in favor of disclosure. 

There are some records for which disclosure is prohibited by law. For most records, however, it is up to the custodian to decide whether to disclose records that are declared exempt by statute. In other words, and in most instances, just because a public record can be withheld from disclosure, does not mean that it must be withheld. For the purposes of achieving administrative consistency in the processing of public records requests across all departments, this policy presumes that all records deemed “exempt” under the PRA will be withheld. Please note, however, that a public record may not be withheld in its entirety merely because it contains information that is exempt from disclosure. Instead, the exempt information must be redacted (covered or crossed out) and the remainder of the record disclosed.  

The burden of showing that a record falls within one of the statutory exemptions is on the municipality. The custodian must provide access to a public record or respond as to why access to that record cannot be provided (e.g., it meets one of the allowable statutory exemptions). Interpretation of many of the exemptions listed in 1 V.S.A. § 317(b) is straightforward, such as those dealing with criminal investigation, tax returns, etc. However, others, such as personnel records, contract negotiations, litigation, intra- and inter-departmental memos are not so clear. These require careful reading of the statute and of the annotations following the statute which indicate how courts have interpreted the exemption in rulings (i.e., case law). Specific determinations on whether a record or portion of a record is exempt and, therefore, not subject to public disclosure may also require consultation with an attorney before releasing the record.   

Note that the E-911 emergency response system created under 30 V.S.A. Chapter 87 poses a special problem for towns regarding access to public records and exemptions; Section 7059 addresses confidentiality of information collected for E-911 purposes. It says in subsection (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 [their] 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 town 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.” 

The exact meaning of the statute is somewhat unclear and, since violations of it may result in penalties, a certain amount of anxiety has been generated by it. Some documents which municipalities have kept for decades – such as lister cards, tax maps, and voter lists – provide “locatable” information regarding property sites and their owners. However, the provision appears to mean only that any municipal document created for E-911 purposes must, if the person requests, show an alternative mailing address (e.g., a post office box number) so that the person and the E-911 location are not linked in that document. 

Appeals and Reasonable Rules

The denial of access to a public record, or a portion of it, by its custodian may be appealed to the head of the custodian's “agency” (department, committee, commission, instrumentality, etc.). The PRA fails to account for the actual structure of municipal government where some "custodians" of public records are also the heads of their "agencies." For instance, the town clerk is the custodian of certain public records and is also the head of their “agency.” To account for this oversight, and to avoid the appearance of impropriety that may arise when a town official sits in appeal of their own decision, we recommend adopting a policy that allows all independently elected town officials to delegate appeals of their initial public records determinations to the town manager, administrator, or legislative body chairperson, as applicable. For the sake of consistency in the processing of all public records requests and clear expectations for the public, it would be in the best interests of the municipality for all independently elected town officials to sign off on the same policy.  

Finally, a municipality is authorized under 1 V.S.A. § 316(j) to adopt and enforce reasonable rules to prevent disruption of operations in responding to records requests, to preserve the security of public records, and to protect public records from damage. We have developed a model policy with guidance for towns that wish to adopt such rules in a uniform public records inspection, copying, and transmission policy; it is online at Model Public Records Policy.   

Copying of and Charges for Records

The PRA provides direction on what the town can allow or prohibit in terms of its copying equipment. Generally, the town does not have to purchase equipment for the public to make copies but, if it has one, then it must be used to provide a requested copy. The town can adopt reasonable rules to protect town equipment, such as that a town employee must be the one to use their equipment, inspection must be done within the town clerk’s view, etc.  

The PRA details what fees a town can charge for accessing the town’s vault for records research and inspection, copies of a record, and staff time spent working on the request in some cases. See, e.g., Vermont Town Clerk Fee Schedule. The town can recoup the “actual cost” of providing a copy on town copiers, and the costs of transmitting a record (e.g., by mail or email) if they choose to send it. 1 V.S.A. § 316(b). The town can charge for costs of staff time associated with complying with a request for a copy in certain circumstances, as specified in 1 V.S.A. § 316(c). General guidelines for selectboards to use when setting the actual cost of copying are also set out in the law. They include staff time, cost of paper or electronic media, a prorated amount for maintenance and replacement of equipment, and utility costs of copying. If the selectboard fails to set a uniform schedule, and unless the public record is governed by a fee(s) otherwise established by law, the cost from the Secretary of State’s Uniform Charges Schedule will apply. 1 V.S.A. § 316 (d-e); see Uniform Charges Schedule. 

Note that, if the document to be copied is one for which a statutory fee may be charged, then the town clerk must charge only that fee and no extra copying charge. It is advisable to post a list of the established copying costs in the clerk’s office, along with the other usual and/or statutory fees. Note also that 1 V.S.A. § 316 deals with cost of making a copy of a public record only. Copies of other materials presumably may or may not be copied on town equipment at the discretion of the town and may be charged for at a rate set by the selectboard. A policy should be set in writing and posted in the office, which lists what documents may be copied and the cost for copying. Everyone who wishes to take advantage of the copying must be treated the same to avoid a constitutional challenge based on equal protection and due process. 

Storing And Destroying Public Records

VSARA is charged with administering the Statewide Records and Information Management (RIM) Program in accordance with generally accepted record-keeping principles and industry standards and best practices to assure public agencies, including municipalities, are systematically managing their records in accordance with the law. The PRA suggests municipalities take advantage of the services of the Statewide RIM Program, which are listed in 3 V.S.A. § 117(c). The PRA also provides that a custodian of public records cannot destroy, give away, sell, discard, or damage any record or records in their charge, unless specifically authorized by law or under a record schedule approved by the state archivist pursuant to 1 V.S.A. § 317a(b). For assistance with compliance and other records and information management questions, please contact VLRP at sos.localrecords@vermont.gov or call VSARA’s main phone line at 802-828-3700.. 

All towns are required to have fireproof safes or vaults big enough to adequately protect files and records which are in the town clerk’s office or which may accumulate there. 24 V.S.A. § 1178. Since most town records are important and many are irreplaceable, this is not an unreasonable requirement. Land records, tax information, and birth and death records are vitally important to individuals and to the town. Survey plats which are filed with the clerk must be stored and maintained as required by 27 V.S.A. Chapter 17; see below for more information on plats. 

Vital records refer to reports of birth, death, fetal death, or induced termination of pregnancy, or a preliminary report of death; a vital event certificate; a marriage or civil union license; or a burial-transit permit. 18 V.S.A. § 4999(10). The law requires town clerks to be responsible for filing and preserving all vital records received by their office; these include all marriage and civil union certificates, burial-transit permits, and paper copies of birth and death certificates registered prior to July 1, 2019. Birth and death records registered after that date are maintained electronically in a statewide registration system maintained by the State Registrar. The law has specific instructions for filing and indexing vital records, and they are based on the type of record received. Town clerks are authorized to issue certified copies of vital records. Certified copies of vital event certificates must be issued on unique, antifraud paper available from the Office of Vital Records and stored in the town’s fireproof safe or vault. 18 V.S.A. § 5001. Fees for recording and certified copies are set by statute, and can be found at Vermont Municipal Clerk Fee Schedule.  

All town clerks should refer to the Vermont Department of Health’s webpage for Information for Town and City Clerks | Vermont Department of Health which contains manuals and other helpful resources. The General Instruction Manual contains the relevant statutory requirements and duties that clerks must fulfill, so it and the other manuals should be consulted regularly. Any questions can be directed to Vital Records at 800-439-5008 (within Vermont) or 802-863-7275. Or, you can contact them at vitalrecords@vermont.gov. Due to the specific nature of the legal requirements for managing these records, we recommend seeking guidance from the department directly. 

• the name of the person from whom it was received; 

• the nature of the instrument; 

• the names of the grantors and grantees; 

• fees received and the date they were received; and 

• the name of the person to whom the document was returned, the date on which it was returned, and how it was returned (by hand or mail). 

Basically, the register functions as a log so that all land-related (or other) documents which pass through the town clerk’s office are documented and can be located at any time upon request.