2011 VT 48


Price v. Town of Fairlee
(2010-125)
 
2011 VT 48
 
[Filed 29-Apr-2011]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to notify
the Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier,
Vermont 05609-0801 of any errors in order that corrections may be made before
this opinion goes to press.
 
 

2011 VT 48

 

No. 2010-125

 

Timothy K. Price


Supreme Court


 


 


 


On Appeal from


     v.


Orange Superior Court


 


 


 


 


Town of Fairlee


February Term, 2011


 


 


 


 


Thomas
  J. Devine, J.


 

Timothy K. Price, Pro Se, Fairlee, Plaintiff-Appellant.
 
Frank H. Olmstead of DesMeules, Olmstead & Ostler,
Norwich, for Defendant-Appellee.
 
William H. Sorrell, Attorney General, and Jacob A. Humbert,
Assistant Attorney General, 
  Montpelier, for Appellee-Intervenor State of Vermont.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶
1.           
BURGESS, J.   The question presented is whether, under
the Vermont Access to Public Records Act, ballots and tally sheets from the
November 2006 election in the Town of Fairlee are open to public
inspection.  For the reasons set forth below, we conclude that they
are.  The trial court judgment to the contrary, therefore, is
reversed.     
¶
2.           
The factual and procedural background is as follows.  In August
2008, plaintiff, a resident of the Town of Fairlee, filed a pro se complaint in
the superior court seeking access to the ballots and tally sheets from the
November 2006 election in the possession of the town clerk “before they are in
any way tampered with or destroyed.”  Plaintiff’s stated purpose was to
determine whether “the vote totals as tabulated are in agreement with the
actual ballot count in all the races, and to learn, if possible, how errors may
have happened, [and] to verify the integrity of the voting process in Fairlee.” 
In a contemporaneous letter filed with the court, plaintiff explained that the
complaint was prompted by the recount in the 2006 race for State Auditor which
revealed that town officials had undercounted eleven votes for one of the
candidates.  Plaintiff was concerned about the error, and wished to
determine whether it was isolated or part of larger pattern for purposes of
evaluating the overall performance of the local board of civil authority. 
¶ 3.           
The Town moved to dismiss the complaint, alleging that plaintiff failed
to state a claim for which relief could be granted because the time for an
election contest or recount had long since passed.  See 17 V.S.A. §§
2602(b), 2683(a) (state and local candidates must file petitions for recount
within 10 days of election); id. § 2603(a), (c) (“any legal voter” may
contest result of election by filing complaint “within 15 days after the
election in question, or if there is a recount, within 10 days after the court
issues its judgment on the recount”).  In conjunction with the Town’s
motion to dismiss, the State of Vermont, by and through the Office of the
Attorney General, moved to intervene in support of the Town’s position, stating
its view that disclosure of ballots and tally sheets two years after completion
of an election was inconsistent with the State’s interest in the finality of
elections.  
¶ 4.           
The pending motions and plaintiff’s request for injunctive relief were
heard on November 10, 2008.  In the course of the proceeding, the trial
court observed that plaintiff’s complaint was really in the nature of a request
for access to the election materials under the Vermont Access to Public Records
Act, 1 V.S.A. §§ 315-320 (PRA).  Accordingly, the court ruled that
plaintiff should be allowed to file an amended complaint for declaratory relief
under the PRA and denied the motion to dismiss.  As to plaintiff’s request
for injunctive relief, however, the court noted that under 17 V.S.A. § 2590(d),
the town clerk was required to retain “all ballots and tally sheets . . . for a
period of 90 days from the date of the election, after which time they may be
destroyed.”  Because the statute authorized the clerk to destroy the
materials after ninety days, the court concluded that there was “no right on
the part of a citizen to have access to them” after that time, and as there was
“no right” under the statute plaintiff could demonstrate no harm.  As the
court later explained, it viewed the issue as “whether ballots and tally sheets
that remain in the Town Clerk’s possession after expiration of the secure
[90-day] period are subject to inspection under the Public Records Act . . . if
they have not yet been destroyed.”  (Emphasis added). 
Accordingly, plaintiff’s request for injunctive relief was denied.  
¶ 5.           
 Two days later, on November 12, 2008, plaintiff submitted a
request to the town for disclosure of the election materials under the
PRA.  The town’s attorney responded by letter indicating that, following
the court’s denial of the preliminary injunction, the town clerk had indeed
destroyed the 2006 ballots and tally sheets “as authorized by law” and that
plaintiff’s request could not be met “because the documents do not
exist.”  The Town then filed a second motion to dismiss, asserting that
the action was moot because the requested materials had been destroyed and were
no longer available for disclosure.
¶ 6.           
In early December 2008, the trial court issued a written decision,
denying the motion to dismiss.  The court acknowledged that the
destruction of the election materials had rendered the case moot, since it
could no longer grant the relief requested.  It concluded, however, that
the case fit within an exception to the mootness doctrine for actions “capable
of repetition, yet evading review.”  In this regard, the court found that
the time period between a request for records of this nature and their
authorized destruction was “too short for the legal issue to be fully
litigated” and that the action was likely to recur, plaintiff having indicated
an interest in requesting “access to ballots and tally sheets following future
elections” and the Town having expressed no intention of responding any
differently.  See In re Grievance of Vt. Emps.  Ass’n, 2005 VT
135, ¶ 12, 179 Vt. 578, 893 A.2d 338 (mem.) (restating principle that exception
for matters “capable of repetition yet evading review” may apply where
challenged action “was in its duration too short to be fully litigated prior to
its cessation or expiration” and there is  “reasonable expectation that
the same complaining party would be subjected to the same action again”
(quotation omitted)).[1]
¶ 7.           
Shortly thereafter, the State moved for summary judgment, asserting that
disclosure of the requested materials was prohibited under the “comprehensive
statutory framework” governing the conduct of elections in Vermont.  Under
that scheme, ballots, tally sheets, and other election materials must be
“securely sealed” in containers provided by the Secretary of State and returned
“to the town clerk, who shall safely store them, and shall not permit them to
be removed from his or her custody or tampered with in any way.”  17
V.S.A. § 2590(a), (c).  Furthermore, as noted, “[e]xcept as otherwise
provided by federal law, all ballots and tally sheets shall be retained for a
period of 90 days from the date of the election, after which time they may be
destroyed; provided, however, that if a court order is entered prior to the
expiration of the 90-day period, ordering some different disposition of the
ballots, the town clerk shall abide by such order.”[2]  Id. § 2590(d).
¶ 8.           
The election statutes identify several specific scenarios in which
election ballots  may be unsealed.  If a container “breaks, splits,
or opens through handling,” the Secretary of State may order the contents moved
to new bags.  Id. § 2590(c).  In addition, a  court may
order a recount of the ballots in two circumstances: first, where the election
results are sufficiently close and the “losing candidate” petitions for a
recount within ten days of the election, id. §§ 2601, 2602(b); and
second, where “any legal voter” files a complaint within fifteen days after the
election, or within ten days after a court-ordered recount, alleging error or
fraud sufficient to change the ultimate result, id. § 2603(a)-(c). 
And, of course, the containers may be unsealed and the ballots and tally sheets
“may be destroyed” 90 days after the election.  Id. § 2590(d). 
¶ 9.           
The election statutes also authorize the public dissemination of certain
specific election materials.  These include “spoiled” ballots, which after
ninety days may be destroyed or “distributed by the town clerk for educational
purposes,” id. § 2568; the “return” or summary sheet showing vote
totals, a copy of which shall be made “available to the public upon request,” id.
§ 2588(a); and a copy of the entrance or exit “checklist,” which must be
retained for a period of at least five years from the date of the election and
“made available at cost to the public upon request.”  Id. §
2590(e).
¶ 10.        Viewing the
elections scheme as a whole, the trial court concluded that it effectively
excluded the requested ballots from disclosure under two settled PRA
exemptions: as “records which by law are designated confidential or by a
similar term,” 1 V.S.A. § 317(c)(1), and as “records which by law may only be
disclosed to specifically designated persons,” id.
§ 317(c)(2).  “Given the care with which the Legislature specifically
crafted procedures for the sealing, storage, and transportation of ballots
after an election,” the court concluded, they qualified as records designated
confidential “by law” and accessible only to designated
persons.    
¶ 11.        The court
also ventured that “sound public policy reasons” supported a construction
“limiting access to sealed ballots only to the enumerated instances permitted
in the election statute,” to wit, the “overriding need for finality in
elections.”  While acknowledging that plaintiff’s intent was not to
challenge any specific election result but rather to hold the Town’s election
officials “to high standards of accountability,” the court reasoned that “the
incidental effects of studies such as the one plaintiff hopes to undertake
could serve to undermine the public’s confidence in the validity of the various
elections nonetheless.”  The strict statutory timeframes for election challenges,
the court concluded, were imposed “precisely to prevent re-examination of
election results months or years after the fact.”  Accordingly, the court
granted the State’s motion for summary judgment and dismissed the
complaint.  This appeal followed.   
¶ 12.        We
emphasize at the outset that our task is to resolve competing statutory
constructions, not competing public policies.  The latter is the domain of
the Legislature, which remains free to amend this or any other statutory scheme
to more closely conform to the legislative will.  See Smith v. Parrott,
2003 VT 64, ¶ 14, 175 Vt. 375, 833 A.2d 843 (holding that resolution of
competing “policy concerns” is “more properly left to the Legislature”
(quotation omitted)).  That said, we approach this particular dispute with
the distinct benefit of clear and settled legislative priorities.  
¶ 13.        In adopting
the PRA, the Legislature reaffirmed the fundamental principle of open
government that public officials “are trustees and servants of the people and
it is in the public interest to enable any person to review and criticize their
decisions even though such examination may cause inconvenience or
embarrassment.”  1 V.S.A. § 315; see Shlansky v. City of Burlington,
2010 VT 90, ¶ 12, ___ Vt. ___, 13 A.3d 1075.  The PRA thus expresses a
strong legislative policy “favoring access to public documents and records,” Wesco,
Inc. v. Sorrell, 2004 VT 102, ¶ 10, 177 Vt. 287, 865 A.2d 350, and its
provisions are to be “construed liberally” in favor of disclosure.  Trombley
v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 106, 624 A.2d
857, 861 (1993).   Conversely, we construe the statutory exceptions
to the general policy of disclosure “strictly against the custodians of the
records and any doubts should be resolved in favor of disclosure.” Id.
at 107, 624 A.2d at 861 (quotation omitted); see also Finberg v. Murnane,
159 Vt. 431, 436, 623 A.2d 979, 982 (1992) (“[W]e must construe the exceptions
to the Act narrowly to implement the strong policy in favor of
disclosure.”).  “The burden of showing that a record falls within an
exception is on the agency seeking to avoid disclosure.”  Wesco,
2004 VT 102, ¶ 10. 
¶ 14.        The PRA
exemption for records designated confidential or the equivalent “by law” is no
exception to the general rule of strict construction favoring disclosure. 
See Norman v. Vt. Office of Court Adm’r, 2004 VT 13, ¶ 4, 176 Vt. 593,
844 A.2d 769 (mem.) (“We have made it clear . . . that § 317(c)(1) . . . must
be construed narrowly to implement the strong policy in favor of disclosure”
(quotation omitted)).  Thus, we are bound to construe the electoral scheme
on which the State and Town purport to rely as narrowly in favor of public
disclosure as its text and evident purposes will allow.  With that in
mind, there is no support for the broad exception they claim.  We find,
instead, an exception that can be confined to its narrow statutory purpose of
ensuring the integrity of Vermont elections while simultaneously permitting
public access once that goal is satisfied.
¶ 15.        To be sure,
the relatively short statutory timeframes for election challenges are
undoubtedly designed to promote “finality.”  The sealing of election
ballots and tally sheets  serves a critical function by preserving their
integrity and reliability as physical evidence in the event of such a
challenge.  See, e.g., Qualkinbush v. Skubisz, 826 N.E.2d 1181,
1204 (Ill. App. Ct. 2004) (holding that, for ballots to be admissible in
election contest, they must have been kept intact with no opportunity for
interference); Ryan v. Montgomery, 240 N.W.2d 236, 238 (Mich. 1976)
(“The evident purpose of the [sealing] precautions prescribed in the statute is
to preserve the integrity of the ballots, so that, if necessary to resort to a
recount thereof, it may be done with the assurance of having the ballots
present the identical verity they bore when cast.” (quotation omitted)).
¶ 16.        Therefore,
had plaintiff or any other interested citizen filed a public-records request
seeking access to ballots during the statutory ninety-day preservation period
for an election challenge, we would have no difficulty finding the records to
be confidential “by law” under the PRA, and so exempt from disclosure during
that period.  When that time has run and the election results have been
certified, however, the purpose of maintaining the ballots under seal has been
fully served, and the confidentiality requirement rendered superfluous. 
Subsequent disclosure of the ballots and tally sheets can have no effect on the
election’s outcome or finality.  
¶ 17.        What the
State really appears to be arguing here is that, as the trial court found,
 subsequent disclosure may undermine “the public’s confidence” in an
election later revealed to contain errors or discrepancies, and that
withholding the ballots therefore serves to preserve electoral “purity” or
stability.  Yet even if that were the unstated purpose of the election
statutes—a conclusion we do not reach today—the PRA’s express, overarching goal
of ensuring public access “to review and criticize” the performance of our
public officials “even though such examination may cause inconvenience or
embarrassment” plainly must take precedence.  1 V.S.A. § 315 (emphasis
added).[3]
¶ 18.         We
are also mindful that the elections statute permits—but does not require—the
destruction of ballots and tally sheets after the expiration of the
preservation period.  17 V.S.A. § 2590(d) (“[B]allots and tally
sheets shall be retained for a period of 90 days from the date of the election,
after which time they may be destroyed.”).  In the absence of a clear
statutory provision or purpose requiring that these election materials remain
under seal if not destroyed, we are constrained to construe the provision
narrowly to permit the disclosure promoted by the PRA.  Finberg,
159 Vt. at 436, 623 A.2d at 982.  We find no contrary intent in the few
specific statutes authorizing the unsealing of ballots in certain limited
circumstances, such as where a container is damaged, 17 V.S.A. § 2590(c), or in
the provisions for disclosure of other election materials, such as “spoiled”
ballots, id. § 2568.  Contrary to the State’s claim, this is not a
case where two statutory schemes deal with the identical subject matter and we
must choose the more “specific” over the “general.”  Town of
Brattleboro v. Garfield, 2006 VT 56, ¶ 10, 180 Vt. 90, 904 A.2d 1157. 
The PRA and the cases construing it are clear that disclosure is the rule, and
that any other statute providing for confidentiality or limited disclosure of
records “by law” must be strictly construed in deference to that overriding
goal.  Norman, 2004 VT 13, ¶ 4. 
¶ 19.         Nor
do the several out-of-state decisions cited in the State’s brief compel a
different conclusion.  Each is predicated upon the intersection of
elections and public-records laws containing language quite distinct from our
own.  See, e.g., In re Decision of State Bd. of Elections, 570
S.E.2d 897, 898 (N.C. Ct. App. 2002) (denying public records request for
ballots in deference to elections statute “unequivocally provid[ing]” that they
could be opened only upon written order of elections board or court). 
Several, moreover, involved public-records requests within the limited timeframe
for election challenges, resulting in a holding that the ballots could not be
disclosed without directly contravening their integrity and the purpose of the
election statutes.  See Smith v. DeKalb Cnty., 654 S.E.2d 469,
471-72 (Ga. Ct. App. 2007) (denying public records request for ballot
information filed shortly after election under statute requiring that it be
kept under seal for at least twenty-four months);  Kibort v. Westrom,
862 N.E.2d 609, 616 (Ill. App. Ct. 2007) (denying public records request filed
shortly after election and observing that “accommodation of plaintiff’s
inspection request would have required the Commission to unseal the ballots . .
. following the tallying and reporting of the votes” and “compromise[d] their
integrity so as to render them suspect for purposes of a proceeding to
challenge the election”); State ex rel. Roussel v. St. John the Baptist
Parish Sch. Bd., 135 So. 2d 665, 668 (La. Ct. App. 1961) (denying public
records request for ballots on ground that it would “destroy, or make
completely ineffectual, the right given by the election statutes to contest the
election”).  The case before us is clearly distinguishable; the
preservation period for the election in question has expired, the election
results are final, and the purpose of maintaining the ballots under seal has
been served.  No legislative policy evident from the election statutes,
whether considered singly or as a whole, is furthered by maintaining their
confidentiality. 
¶ 20.         The
practical question of enforcement remains to be considered.  As noted, the
trial court here denied plaintiff’s request for a preliminary injunction to
preserve the ballots from destruction, reasoning that any right to public
access was subject to the Town’s discretionary authority to destroy them after
ninety days.  Not surprisingly, that is precisely what occurred.
  
¶ 21.         Under
circumstances where a PRA request is pending, however, this destruction must be
treated as unauthorized.  The PRA establishes a clear and orderly
process for the handling of PRA requests, and we discern no basis to exempt
this or any similar request from its provisions.  Under this procedure, if
the custodian “considers the record to be exempt from inspection” the custodian
must “so certify in writing” and notify the person making the request of the
right to appeal to the “head of the agency” from the adverse
determination.  1 V.S.A. § 318(a)(2).  If the denial is upheld,
the agency must then notify the person making the request of the provisions for
judicial review under the PRA.  Id. § 318(a)(3).   This
orderly process would be circumvented, and the citizen’s right to access
defeated, if § 2590(d) of the election statutes were applied to allow the custodian
to unilaterally destroy the requested ballots and tally sheets
even when an access request remains pending.  While the custodian may have
a good faith belief that the records may be destroyed in reliance upon the
elections statute, nevertheless this is precisely the sort of legal conclusion
that the PRA review process was established to determine.  See Munson
v. City of S. Burlington, 162 Vt. 506, 509-10, 648 A.2d 867, 869-70 (1994)
(reaffirming principle that statutes which overlap should be construed, where
possible, to harmonize their provisions in order to effectuate legislative
intent and avoid absurd results).  Accordingly, we hold that the
discretionary authority to destroy ballots and tally sheets after the
preservation period has expired under 17 V.S.A. § 2590(d) must be stayed when a
public-records request for the material is filed pursuant to 1 V.S.A. § 318,
and the stay must remain in effect until the request is resolved.   
¶ 22.         Contrary
to the opinion of our dissenting colleague, this result is not “made up,” post,
¶ 27, but is necessarily compelled upon reconciling the two competing
legislative schemes: one establishing the goal of open government with an
express requirement that its provisions be “liberally” construed to that end, 1
V.S.A. § 315, and the other seeming to authorize a purposeless destruction of
public records in frustration of that goal.  Nor, contrary to the dissent,
does our holding brand the town clerk a criminal or subject her to penalties
for unauthorized destruction of public records under 1 V.S.A. §
320(b).   Obviously, the clerk’s actions preceded our instant holding
and followed the trial court’s denial of an injunction to prevent the
records’ destruction.  See State v. LaBounty, 2005 VT 124, ¶ 4, 179
Vt. 199, 892 A.2d 203 (noting that defendant’s right to adequate notice of what
conduct may give rise to criminal punishment requires “rule of lenity” in which
any statutory ambiguity must be resolved in favor of accused).  
Further, while the dissent is correct that the records no longer exist in this
case and so are practically unavailable as contemplated by 1 V.S.A. §
318(a)(4), we do not subscribe to the suggested corollary that destruction of
ballots in the face of the next PRA request must trump access, as it would
perpetually beg the question of whether access to ballots requested under the
PRA can ever be realized before their destruction.[4]  Absent either an evident reason or
a direct expression of such intent, we do not understand that the Legislature meant
to defeat the PRA in regard to ballots, so the clerk’s statutory discretion to
destroy them must yield to a PRA request until otherwise ordered by the
superior court.   
        
¶ 23.         Finally
we consider whether the trial court erred in denying the Town’s motion to
dismiss the complaint as moot.  Normally this is an issue we would address
at the outset, but the State itself briefed the claim last and expressly
declined to assert it at oral argument.  The State’s diffidence notwithstanding,
however, we are bound to examine any subject potentially affecting the Court’s
jurisdiction.  See In re Keystone Dev. Corp., 2009 VT 13, ¶ 7, 186
Vt. 523, 973 A.2d 1179 (mem.) (observing that a decision that “would not
resolve a live controversy” would “exceed our jurisdiction”).  
¶ 24.         There
is no basis to disturb the trial court’s ruling.  As noted, the trial
court found —despite the destruction of the ballots—that the case qualified for
consideration under the settled exception for cases “capable of repetition yet
evading review.”  To meet this exception, two criteria must be satisfied:
the challenged action must be in its duration too short to be fully litigated
prior to its cessation or expiration, and there must be a reasonable
expectation that the same complaining party will be subjected to the same
action again.  State v. Tallman, 148 Vt. 465, 469, 537 A.2d 422,
424 (1987).  In the instant case, the destruction of the ballots meant
that the action to be challenged was a fait accompli, and its duration was over
before the issue could be joined in court. 
¶ 25.         As to
the second criterion, the State has not challenged the trial court’s findings
that plaintiff will likely continue to request access to the Town’s past
election ballots based on his “continuing interest” in evaluating the
performance of the Town’s election officials and that the Town’s response will
likely be the same.  These findings are not undermined by the State’s
claim that, since the Town’s conversion to electronic scanning machines to read
and tally ballots, “human error” is less likely to occur in the future.
 Indeed, it is precisely to test such assertions that this action was
filed.  
¶ 26.         The
trial court was correct to entertain plaintiff’s petition, but erred in ruling
that the records requested were exempt from disclosure under the PRA and erred
in granting summary judgment in favor of the Town and State. 
The judgment is reversed. 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶
27.        
DOOLEY, J., dissenting.   This is an example of
creating a right where the governing statute does not provide for it.  The
right the majority has created is logical for the reasons it states.  I
agree that it would be good public policy.  I cannot agree that we can
make it up.  Moreover, because the necessary result of the majority’s
decision is to make the conduct of the town clerk a crime, I think we must
proceed very cautiously.
¶
28.        
As the majority acknowledges, 17 V.S.A. § 2590(d) authorizes the town
clerk to destroy the ballots.  It specifically contains an exception that
could have applied here—that is, at any time during the period of 90 days after
the election, the court could order a different disposition of the
ballots.  The different disposition is not restricted in the statute; it
could have included an examination of the ballots by plaintiff.  Of
course, plaintiff had to ask for that disposition sufficiently quickly after
the election to allow the court to act in the 90-day period, and he failed to
do so.  The majority calls the procedure under § 2590(d) “cumbersome and
costly,” ante, ¶ 22 n.4, but it is the procedure that the Legislature
explicitly created, unlike the procedure created by the majority.
¶
29.        
The situation here is virtually unique because there is a statutory
authorization to destroy a public record.[5] 
Through 1 V.S.A. § 317a, Vermont provides that the custodian of a public record
shall not destroy it “unless specifically authorized by law.”  This is the
only section of the Vermont Access to Public Records Act (PRA) that deals
directly with the destruction of a public record. 
¶
30.        
Willful destruction of a public record without authority is a
crime.  Id. § 320(c).  In this case, there is an authorization
by law, so a town clerk cannot be charged criminally for destroying the ballots
pursuant to 17 V.S.A. § 2590(d).
¶
31.        
The majority holds, however, that there is an exception to the
authorization when a public records request has been made for the record. 
Section 317a of the PRA does not provide such an exception, and it is the only
section that deals directly with record destruction.  Such an exception is
not stated anywhere else in the PRA.  Instead, the majority infers the
exception because the “orderly process” of citizen access “would be
circumvented.”  Ante, ¶ 21.  I emphasize that the majority
infers such an exception because it is not stated anywhere in the statute, even
though the authorization to destroy the record is stated explicitly.  This
is an implementation choice the Legislature could have made but did not. 
Even though I agree that the result is good policy, the choice is not for us
but for the Legislature.
¶ 32.        
I also emphasize that in reaching its conclusion that the town has
circumvented the orderly process of citizen access, the majority is selective
in describing the “orderly process.”  The statutes it cites all deal with
existing public records and access to them.  We are dealing here with
records that do not exist.  In that circumstance, subsection 318(a)(4) of
the PRA says that “if a record does not exist, the custodian shall certify in
writing that the record does not exist,” and that certification becomes the
extent of the custodian’s obligation under the statute.  Subsection
318(a)(4) obviously trumps procedures cited in the majority opinion that are
all based on access to records that actually exist.
¶
33.        
In this case, the town followed the letter of the law even as explained
by the majority.  By the time that plaintiff filed an access to public
records request with the town, the town responded that there were no records
that met the request.  Subsection 318(a)(4) authorizes exactly that
response. 
¶
34.        
The only possible remedy in this case is criminal prosecution of the
town clerk under 1 V.S.A. § 320(c).  I reiterate that we should be
cautious in construing a statute to expand the risk of criminal liability with
no description of the scope beyond that in an opinion of this Court. 
There are obvious questions about the scope of a Court-created exception to the
authorization to destroy the ballots that can be answered only over time,
leaving town officials in a state of uncertainty.  This is exactly why the
exception the Court has created should instead be created, if at all, by the
Legislature, which can define its scope.
¶
35.        
This opinion comes out during a legislative session in which the
Legislature is considering amendments to the PRA.  Whatever the outcome of
this case, I hope the Legislature will consider the issues confronting us and
specifically amend the language of the statutes to more clearly define the
interrelationship between the right of public access and the authorization to
destroy public records, where it exists.
¶
36.        
Reluctantly, I must dissent from this Court’s decision that the Town of
Fairlee violated the PRA as it currently exists.
 

 


 


 


 


 


 


 


 


Associate Justice

 







[1] 
The Town later moved to amend the court’s decision, asserting that there was no
basis for its findings relating to the mootness exception, but the court denied
the motion.  
 


[2] 
Under federal law, records related to elections for federal office must be
retained for  22 months.  42 U.S.C. § 1974.    


[3]  As world events regularly demonstrate,
moreover, secrecy is no guarantee of political stability or public confidence
in the integrity of elections or elected officials.       

 


[4] 
Under the dissent’s analysis the demand for access would never, except as
described below, be ripe for enforcement since the ballots would generally be
“in storage” during the preservation period and therefore not immediately
accessible under 1 V.S.A. § 318(a)(1) (excepting from immediate inspection a
public record “in storage and therefore not available”) but still subject to
purposeless destruction afterwards.  In the event a town denies access,
fails to respond “promptly” as directed by 1 V.S.A. § 318(a), or even purports
to agree to post-preservation access, the dissent would apparently leave the
applicant to obtain, before the preservation period expires, a court order
based on a right to access under the PRA and the lack of any town obligation to
preserve ballots after ninety days, to prevent destruction of the
ballots.  See 17 V.S.A. § 2590(d) (“[I]f a court order is entered prior to
the expiration of the 90-day period, ordering some different disposition of the
ballots, the town clerk shall abide by such order.”).  Such a procedure is
not only cumbersome and costly, but is incompatible with the competing
legislative mandate for “free and open examination” of public records not
explicitly excluded from disclosure.  1 V.S.A. §§ 315, 317.  


[5] 
The majority labels the authorization as “purposeless.”  Ante, ¶ 22
n.4.  The statute serves the obvious purpose of bringing finality to
elections.  As I said in the beginning of this dissent, if the choice for
us were between competing policies, I would vote with the majority.  But
the choice among competing policies belongs to the Legislature, not to this
Court.  



