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Adrian: Transparent Secrets

The kerfuffle between the Presidential Advisory Commission on Election Integrity and Vermont’s Secretary of State has me thinking about privacy, secrecy and transparency.

In recent years, transparency’s become a catchphrase for good government. But often overlooked is that some secrets should be kept private – like those held by the government to help ensure the privacy of its citizens.

Secretary Condos’ initial response to the Commission’s request was that he was “bound by law” to provide the public information on the statewide voter checklist. But after a small yet vocal public outcry, the Secretary did a quick reverse, indicating that he’d be searching for ways to resist providing information to the Commission.

The Vermont Supreme Court has long held that under the Public Records Act, “the identity and motive of the requestor cannot be considered when weighting access to public records.” So while I can see how an elected official might be tempted to deny a public records request from someone thought to be disreputable - with possibly questionable intentions - that temptation would be contrary to the spirit and likely the letter of the law.

But now comes the so called “statewide voter checklist” debate.

Established law specifically provides that social security numbers, birthdates and driver’s license numbers kept on the statewide checklist are not a public record. It also requires an affidavit by the requester indicating that the checklist will not be used for “commercial purposes” though it doesn’t make a similar prohibition against using a statewide voter checklist for political purposes.

Lost in the debate is the fact that every municipal checklist is available “upon request” without an affidavit, and contains the name and address of every person registered to vote in that district. The only apparent difference between the information publicly available from a local checklist and the statewide checklist, is that the latter provides one-stop-shopping, suggesting the issue is less about privacy than technology.

Transparency sounds great until it isn’t; and there are real world repercussions for curating and disclosing information. Meanwhile, our ability to store and access information continues to increase at exponential rates. In fact, every public servant may soon be required to record and store every conversation.

I hope I’m wrong. I hope we can come to understand that just as the world consists of shades of gray, there’s territory aplenty between transparent and secret.

Ed Adrian is an attorney at the law firm Monaghan Safar Ducham PLLC. He previously served on the Burlington City Council for five years and currently sits on the Burlington Library Commission.
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