Episode Transcript
[00:00:00] Welcome everyone. Today I want to talk about public records requests, not from an abstract sort of legal perspective, but from the on the ground level of actually working in towns across Vermont, New Hampshire, Massachusetts and New Jersey. This was sort of kicked off a little bit recently by a VT Digger article that focused on the commercial side of public records request issues.
[00:00:24] And the link to that article is in the show notes.
[00:00:28] Now, I believe public records access is an essential part of our democracy, but I also think that we're having the wrong conversation in some key areas around these topics and we're missing some structural reforms that would actually make the system work better for everyone.
[00:00:45] But like with many debates, we end up in this sort of binary two sided debate that misses some of the nuance and sometimes misses some of the solutions that could really help move us forward. So I'm going to cover five different topics here about public records requests. So the first is about commercial use and abuse. The next is about sort of simple versus complex requests. Number three is records management and digitization.
[00:01:12] Number four is guidance, enforcement and appeals. And number five is the sort of bigger layer of trust issues with trust that sort of are the foundation to a lot of, a lot of these issues.
[00:01:27] So the first is about commercial use and cost fairness.
[00:01:32] So this doesn't get talked about quite as much. Again, this was the focus of that VT Digger article and it's a problem in many communities right now. And there's kind of two types of commercial public records requests.
[00:01:46] First, this is the one that has zero value to the public at large. This is purely for the company to make money. And it's often done by mining personal or sensitive or private data for that purpose.
[00:01:59] This was actually much worse in New Jersey than it is in New England. New Jersey at least 10 years ago did not allow towns to redact personal information such as phone numbers or email addresses from public records requests.
[00:02:12] So we frequently had requests, for example, from law firms after car accidents for the driver's information. Or one of the more ridiculous ones would be pet food companies that would request the list and contact information for everybody who registered their dog in town.
[00:02:27] So they would get these people's phone numbers and email addresses and then send them solicitations.
[00:02:32] Now that is pretty obviously not what this law is for. And even worse, this sort of thing really erodes trust in government because why would I, as a resident of a town, want to fill out some form with the town government if they're just going to allow companies to take that information and then use it? Government should be in the business of protecting people's privacy, not enabling the exploitation of it.
[00:02:58] Now, the second type of commercial request is a little different. This is something where there could potentially be some value for people at large when the records are being used by the company.
[00:03:13] So this might be things such as there's a lot of records that governments have that sit in file cabinets and they're not doing anything for anyone, but they could actually be valuable if they were in some sort of digital format. So for example, one of the things that some towns and cities struggle with is figuring out ways to sort of incentivize better landlords and a better rental environment for people who are tenants. In a lot of communities, you might have somewhere between a quarter and a third or more of people who live in the community that are renting from someone else who owns the property.
[00:03:51] And so when you're choosing an apartment, for example, or a house to rent, it can be challenging to understand whether the landlord that you're about to move in with is actually doing a good job or not. But all, all towns and cities have tons of records related to those landlords. And it's about whether they paid their property taxes on time, whether there were building or code violation or property maintenance issues in the past. All those interactions with town, city government are in records that are generally public, but they're all sitting in file cabinets. So me as a person looking at apartments online, trying to figure out where I want to move, I don't have access to any of that information. Even though that information exists and is public. If someone could figure out a way to digitize some of that, or even if governments could make that sort of data available and some third party company came in and said, oh, okay, here's all these building, you know, property maintenance code violation, zoning violation issues, and they were to compile them on some sort of website. You could easily see whether the landlord you're about to move in with is on top of things on their property or not, and make a better decision about whether you want to live there or not. I mean, it's one of those ways where governments can put their thumb on the scale of making things better, but not creating new regulations and not costing people more money, you're simply enabling a market to exist so that wouldn't have existed otherwise because that data exists. It's all public already, but it's just in a format that nobody can access it. So by making that format accessible now, you've enabled people to do all. You've enabled companies to build on top of that and enabled people to make different choices and incentivize landlords to pay their taxes on time and make sure their properties aren't falling apart. You could do all those things just by making the existing records in a format that people could find. So that's kind of a cool thing, right? That's, that's one possibility of how records that are sitting in a file cabinet could be used and could have some sort of benefit. However, if there is a company that is going to be doing that and they're going to be selling those services or products to someone else and they're making money off that, I guess my question is, why are the people who live in a particular town the ones that are asked to foot the bill for compiling all those records for that company that they're going to then make money off of? They've got investors, they've got advertisers, they've got, you know, subscribers, whatever their business model is. But. But none of those people have to pay the costs of getting the records so that the company can offer the product that they're offering. And so I think the debate about commercial use, it often comes down to, should we or shouldn't we let companies do this sort of thing?
[00:06:43] And in my opinion, the solution is actually pretty simple. And in zoning, for example, and other like in other areas of town government, this has been figured out for decades. If you're requesting a service that benefits you specifically, you pay for it. So that offsets the cost burden, at least to a large degree to the taxpayers at large. When you file a permit for your redevelopment project in a town, you pay the fees for the time that must be taken to review your own application.
[00:07:10] That sort of model could easily be replicated with public records, and it literally solves both ends of the problems. It doesn't cut off companies from accessing this sort of second category of requests of things that might have some benefit to the general public and isn't about mining personal data. And it also doesn't require taxpayers to pick up the bill for it. So I think it's actually really good solution. And then I think another easy solution is companies mining personal information that should be outright prohibited. That's also an easy one, I think.
[00:07:41] Next, number two, figuring out a way to streamline or protect simple requests while managing the burden of some of the more complex ones. So simple requests, usually asking for one existing record, such as, can I see the meeting minutes? Can I get a copy of that permit? Can I see this invoice? Can you share a copy of this contract.
[00:08:02] Those sort of things are really basic. Those sort of things really should be already posted online.
[00:08:07] People shouldn't even have to request them. I'll get to that more in the next section. There should be zero friction for those sort of things. But there is a real strain on towns that comes from things like really complex requests that involve multiple departments to review and pull documents, legal to review all of those. It could even include staff traveling off site to an archive storage facility and literally digging through old boxes.
[00:08:33] It could be extremely broad email searches. And I've had a number of these in towns that I've worked in where the request could produce thousands or tens of thousands of email records, assuming that towns even have the capability of searching that way, which most don't.
[00:08:48] And someone has to read every single one of those emails to make sure there's not personal information that's being provided mistakenly.
[00:08:57] And the next are repeated or, or duplicative filings or people that might be taking out their frustration about a specific elected official and just hammering the town with records requests. Because that's kind of the quickest and easiest way to do that. Those can be really complex and legally risky as well. And all those types of requests can really derail town operations. I mean, I've seen entire project stall. I've seen staff cancel vacations. I've seen boards readjust their agendas. I've seen towns that have hired entire part time and in a couple cases, one in particular I'm thinking of from New Jersey, an entire full time employee that was at around $50,000 a year for just filling one person's records requests.
[00:09:43] Now we need to figure out a way to protect and streamline those simple ones. But also understand that towns don't have unlimited capacity and that when you get really complex ones and especially ones that might have some legal risk that we need something that we don't have in place currently.
[00:10:02] I don't know the exact solution here, but one thing that I think might help a lot and definitely would have helped some towns that I've worked for in the past is having some sort of state ombuds person who oversees and towns can request assistance and guidance from.
[00:10:21] So this is really important because especially in New Hampshire and Vermont, towns are not separate entities from the state. Towns in New Hampshire and Vermont have no powers that aren't explicitly authorized and delegated by the state. These are called Dillon's rule states.
[00:10:37] You can either be a Dillon's rural state or you can be a home rule state like New Jersey. Home rule states are allowed to do things they have not been prohibited to do by the state. And Dillon's rural states must ask permission from the state before they can do anything because they are more so part of the state.
[00:10:57] So again, in Vermont and New Hampshire, towns are a subset of the state. And because these are state laws about records requests, the state should provide the legal guidance that helps town navigate those more complex requests. So right now we have a difficult to follow law that has many nuances and many exceptions and case law that has to be interpreted and specific scenarios that could go either way. And then they somehow expect towns to basically figure this all out. And when towns don't do it right, it ends up in court. And even when towns do do it right, it can cost thousands or tens of thousands of dollars just in legal fees just to ask an attorney for advice about how to follow the state law correctly. And that attorney is still ultimately guessing about whether they think they know what the state actually has in mind or not.
[00:11:50] States will not provide proactive guidance in most cases. Attorney General's office will not provide that kind of guidance. I think that is a really big problem. It's a state law, and if towns want to follow the state law correctly, they should be able to just ask the state, hey, we received this request, we're not sure about this piece or this piece, what should we do? And then the state can just tell the town what the state's intentions are with the law and that protects the local taxpayers from legal and financial exposure and risk by making an interpretation that isn't ultimately in line with what the state wants. So instead of trying to guess what the state wants, basically what I'm suggesting is that states should have an avenue for towns to just say, hey, tell us what to do in this request and we'll do it.
[00:12:38] Number three is records management. And this is a part that really people don't talk about that much related to public records request issues. Now this definitely doesn't solve all of the problems, or even most of them, but there is some amount of burden here that is totally self inflicted because of poor records management.
[00:12:58] For example, in every town that I've worked in, every single one, as a consultant, town administrator, town manager, this is such a small piece, but it's so important in all of them. The scanners were set up improperly so that every time you scanned a document in a scanner to go to your computer or email in the town offices, it scanned the document as an image.
[00:13:25] So it creates a PDF, but it creates an image in the PDF, you cannot search text in that document, you can't copy and paste out of that document, you can't easily convert it to a Word document, etc. With literally changing one setting that takes like two minutes to do, which is turning on optical character recognition OCR by default on the scanners now, every single document that is scanned is scanned as a text based PDF. That means that anytime you search in the future on your computer, server, network, whatever, you are actually searching the entire contents of all of your documents.
[00:14:01] So no new equipment, no cost, no training changes, staff don't have to do anything different, they just hit the same buttons they've always hit. You just change one setting to turn on OCR by default. And now going forward, all of your documents are searchable for the entire future of your town.
[00:14:18] This alone can dramatically reduce the amount of time and cost it takes to find documents. Yet again, even in 2026, as I work in new towns, they still don't have the setting on.
[00:14:31] And part of the reason why is that most small towns especially don't have IT departments. They usually use a third party vendor that is usually providing help desk support, which is important, but, but they're not looking at the long term strategy, they're not looking at capital investments usually. They're not looking at, you know, things like this, like operational, they're not coming to department head meetings, they're not participating in the budget process, they're not really a key integral part of how the town functions. And because of that, things like this that are so simple and would make finding records so much easier in the future are still again in 2026. This technology has been around for like 30 years.
[00:15:13] This still is not done. Again, 100% of towns that I've worked with in like a part or full time capacity did not have this set up correctly.
[00:15:22] So this is an area where the state again could help really significantly.
[00:15:27] And let me give you one more example. So in South Orange, New Jersey we had a system called Laserfish. There's a couple different companies out there that provide these sort of services.
[00:15:36] I'm not sure they're necessarily any better than others. That was just the one that we happened to use and it was an RMS or records management system. And that basically meant that the way that we stored our files was in a system that if we wanted to make an entire folder of documents public, all we had to do was check off a box on our side where we stored the records that made those records public. So by default, I mean we had thousands and thousands of records that were just available to the public because they were public records. And the system that we were using to track, to retain the records is the same system the public could use to access the records on the website.
[00:16:14] Many, many people would access records directly through that and cut down the need on actually even filing a request. And so this is a really valuable thing to do. But I've not encountered, I don't think any towns in Vermont, not saying they're not out there that, that have a system in place like that. It's usually sort of a patchwork if anything at all. And in most towns is still a lot of paper storage, which again means someone has to come in or something has to be scanned for a member of the public to get it. And so this is an area that is not that easy to do for a really small town, especially going back to digitize it all. But it is an area where the state again could provide a lot of help. They could do things like pre authorize records management vendors at state rates where the state holds the contract and offers town the towns the ability to buy into that contract at a lower rate than what towns would be able to do if they tried to contract directly. This is a pretty common thing that a lot of states do. And if done specifically here for low cost, simple records management systems that are geared towards the needs of small towns, for example in Vermont or New Hampshire that could easily be done. And it's again not the state paying on behalf of towns, though you could probably make that argument too. It's just the state pre authorizing a contract with a vendor at a better rate because you're getting a whole bunch of towns in at once than what one town on their own could get. And even better, that state could set up that ecosystem online to be exactly what towns need. They could have folder structures, instructions, you know, stuff like that, all basically ready to go. A template so that a town could sign up for the service, get right in the system and get everything going with really, really minimal friction.
[00:18:00] And so if we could digitize more records more easily, we could probably cut down on not probably, certainly cut down on the number of requests that have to be submitted to the towns and again make more public records more easily findable for people online.
[00:18:19] Next and similarly there is a major gap in guidance. Most towns that I've worked with really don't know. In fact I've actually, I'm not sure I've seen any that have a proper setup for how to search their emails for really large volume or complex requests. Most towns don't really know what should be redacted in records requests. And I have still seen towns that use a marker. They use, they print out the record, they put a marker over it, then they scan it back in, which is not a proper way to redact documents. You can see right through that most towns don't handle town verse personal email usage correctly. So if they have officials who are using their own personal emails, they don't really do it right when they get a public records request that may involve that officials personal emails or things like social media or their activity on other things online.
[00:19:14] And so I came across this recently in a town where I'm interim town manager in Vermont and I created a bunch of templates for that town, including a sort of workflow and timeline of how to respond to records requests in Vermont correctly, a spreadsheet to log everything in and allows towns to add up the cost and the time of all the requests that they're getting. And, and, and also have a document for officials to certify if they're using their personal emails, which they really shouldn't be doing, but if they are, a certification form that allows that person to respond to a records request the right way. And then I shared it. You know, Rethink Local has a Google group with about 80 town and city managers and administrators in New Hampshire and Vermont. And so I shared that template with all of those town officials there.
[00:20:02] But there's really not a real, I go back to that ombudsman person that I mentioned earlier and I really think that yes, proactive guidance would be great if there was a little bit better guidance about how to set these up. And basically just templates provided by the state municipal associations or the state itself say here's the best way to do this because again, this is a state law and so that would help protect and reduce legal liability to towns by basically saying, okay, all towns, you are all subject to this law. We're not going to make this abstract for you. We're going to give you a template and you follow these steps and you fill out the spreadsheet the right way. And that will ensure that you aren't doing something wrong and that you're, you're minimizing your risk of getting sued or, or fulfilling this request improperly. That could be done at very, very, very, very little cost to the state. And overall, if you look at the whole state and taxpayers in the state, you would see a significant reduction across the board because there'd be Fewer mistakes made and so fewer, less legal liability.
[00:21:06] Ideally, that proactive guidance would happen. But again, I think that some of these requests can sometimes be so complicated and the law can be so nuanced that having an ombuds person that Towns could reach out to and say, we got this really complex request. I asked our attorney, he wasn't sure, what do we do? Just tell us what to do.
[00:21:25] That would make a really, really big difference.
[00:21:29] Additionally, having some more streamlined appeal bodies I think would make a lot of sense too.
[00:21:35] And the appeal body maybe is that same person.
[00:21:39] But basically that would allow Towns.
[00:21:44] That would. That would give Towns a little bit of COVID for when they are handling some of these really complex requests. Requests. It would also potentially root out some of the instances where officials are actually hiding something.
[00:21:57] And there's really not a good way to do that currently. And that's going to lead me to number five, which is that there is a bigger picture thread here and it is not really about public records. It's really about trust and accountability in our government.
[00:22:12] Sometimes public records requests are kind of simple and we're just looking for this information, but sometimes it's a proxy. Sometimes the public records request is not really what someone is looking for, but that the records request is a lever that you can pull because it's really easy. People are generally aware of it and there appear to be pretty strict requirements on behalf of the town. So it's very easy to submit that request.
[00:22:40] If you're frustrated about something or you don't trust your government is doing something right and then they don't respond to it exactly the right way and then you respond again and escalate the matter. And escalate the matter and try to bring in, you know, the state or an attorney or civil matter or go to court. Like again, sometimes I think the requests are about the request, but sometimes it's because of a perception that the government is doing something wrong or it's because the government is doing something wrong.
[00:23:08] And I think what people don't realize about public records requests requests is that, and especially when folks are doing that, let's say you feel like the. Your town government has done something they shouldn't have done and you're trying to find out more information about it. And so you're submitting public records requests, you know, you're getting stonewalled and you submit more and you're trying to escalate. And your feeling is that by by pulling that lever of public records requests that you're going to get to an Answer. But, but the problem is, and again, I, I don't think a lot of people realize this. Public records requests are basically voluntary on behalf of the governments. There really is no enforcement mechanism for this.
[00:23:56] And ultimately public records requests still rely on trust because if someone, if a public official wants to hide something, they can easily do that.
[00:24:08] They can just call someone instead of put it in an email. They can just delete the record in the first place. They can just lie about the record, whether it exists or not. Enforcement is almost virtually non existent. It's extremely rare.
[00:24:24] But I've seen elected officials do all of those things that I've just mentioned, right? I've seen people try to delete emails. I've seen people lie about public records requests. And the times that I've pushed back on those elected officials, for example, who, you know, in one town in New Jersey persons, an elected official said that this is embarrassing and I don't want these text messages to be out there. And that's too bad. You put those in a public record, you have to provide them. They were asking for ways to not provide them. It's like it's too late. You created the record, you can't, you can't not provide it. And I've seen it and the attorney's seen it, so you have to provide it.
[00:25:07] In another New Jersey town, one official routinely use their personal email addresses to avoid talking about controversial topics in their town email. So that when people submitted records requests, they wouldn't get these other emails that were in their personal email. And they lied about their usage of their personal email. But people forwarded me those emails. So I had copies of this public elected official talking about town business that on controversial topics that we were about to vote on specifically in their personal email to avoid public disclosure. And when me and our town attorney took that those records to our county prosecutor in Essex county in New Jersey, the county prosecutor, though they were concerned about the behavior, said there was absolutely no chance they would be taking this and prosecuting it because they had a huge backlog of violent crime in Essex county. And that's what they prioritized first.
[00:25:59] And even though that sort of makes sense, I mean, I understand they have limited resources and have to prioritize what they're doing.
[00:26:06] On the other hand, that's also kind of crazy that public officials can just get away with ethics violations and breaking state law if they are in an area that has a lot of other crime and so that the prosecutors don't have time to look at the ethics issues and so again, these are examples where I've seen officials lie about it. I've pushed back to some consequence to myself in some of these occasions. But even when I've tried to get accountability on a number of occasions, it's almost impossible to get that. And so for the people out there that feel like their government has done something wrong, or don't trust their town for some reason and feel like they can get all of the answers through the public records requests, I would argue that that is not going to necessarily get us to the point where we want to get to.
[00:26:56] If there are officials out there that are being unethical. I don't think the solution in most cases is just pulling the public records request lever over and over again. The real solution is better elections, better regulatory environments that actually allow for enforcement of ethics issues, maybe a change of culture at a local level so different people run for office or different people are involved, maybe even creation of local policies in a given community that, that go on top of the state law and actually create more accountability, more process, more restrictions or whatever for those public officials if they are to do something wrong.
[00:27:36] Ultimately, if we improve the way the system functions and we improve how people, how well people are engaged in what's happening in their local community, how educated they are about issues that are happening in their local community, and where to actually pull the levers that make a real difference in moving a town government in one way or another.
[00:27:58] I think those are the areas that we really want to focus on. And right now it's just a little too easy to focus too specifically on just the records request. That again, sometimes, I think are for the records, but sometimes are a proxy for a larger problem that might exist. But those, but those records are not really ever going to solve that larger problem.
[00:28:20] And so in conclusion here, the public records requests are obviously vital for a lot of different reasons. Not just because in some ways there could be some cool data that could be made available, but because people being able to access certain activities of their government is really important to a functioning democracy.
[00:28:41] There are limitations on that. There are exceptions to that. As we all know, it's not quite as simple as make everything public all the time, but kind of leaning in that direction and trying to make that the culture in local government, the culture being what we're doing is a public service. This we're not doing this for us, we are doing this for the public. And because of that, the public is ultimately the boss of all of us. This is especially true in Vermont and especially New Hampshire.
[00:29:11] Where local voters are actually the legislative body of their community and do have the ultimate power.
[00:29:19] And so I think that in these five different areas, you know, the first being that we could figure out a way to make commercial requests actually work where we don't actually prohibit the access, but we allow towns to charge a rate for doing the work that they can bill to the companies so the taxpayers don't have to pick up the bill for those things and it still allows non private data to be out there. Number two is figuring out a way to help differentiate between more simple requests and more complex requests. And ideally providing some guidance through the state for towns that are navigating the more complex ones so they can do it the way the state wants to do it without, without incurring legal or financial risk or liability.
[00:30:08] The next piece was figuring out a way to store records better from the super simple things like making sure your scanners are using OCR by default, to bigger things, which is like implementing a records management system perhaps at a state level for towns.
[00:30:24] Number four was figuring out ways to create more proactive guidance, but also more clear enforcement and appeal and accountability pathways so that abuses can actually be identified and addressed.
[00:30:39] And number five, you know, a theme on this podcast and a theme of all of my work, which is that this is not really the core issue. This is an issue, but the deeper issue is that people are often frustrated and distrustful of government.
[00:30:53] I think in some cases they do have a very good reason to feel that way.
[00:30:58] And if that's the case, I think we need to not get distracted by just talking about public records, but really look at some of the deeper core issues about how we build trust in our communities. Personally, I love the idea of having a. Anyone who talks to me about local government has heard this at one point.
[00:31:18] A non elected representative town meeting, meaning that people don't get elected to serve a position representing their community at town meeting, but we draft people into it. Sort of like jury duty, except harder to get out of where people would get like a three year term and you have to attend five meetings a year. Quarterly check in meetings and town meeting. We figure out some per capita number of how many people should be represented at town meeting and that's implemented. And there's no more elections, there's no campaigning, there's no promises for reelection and everybody gets drafted at some point into serving on behalf of their community and gets to face the responsibility and the difficulty of making decisions on behalf of your community. I think one of the big problems is that people are not engaged in what's happening in their town, so they don't always know where to go or what levers to pull on when things aren't adding upright in their community. And like I've mentioned, they often end up pulling the public records request lever because it's the easiest one to see, even though it might not always be the most effective at getting to a new solution or a better future for their town or community.
[00:32:26] So this is a couple quick hits sort of impetus being that recent recent VT Digger article where Rethink Local was mentioned and I had some information that I had provided in there. You can check out that article linked in the show notes. If you have any feedback or you're trying anything in your community as a practitioner, or as a journalist or as a resident, please reach out to me and let me know. I'd love to incorporate that into future thinking about this topic.
