Even a generic, blank form is considered confidential by Vermont’s Agency of Human Services.
When VPR requested a blank “Critical Incident Review Form” from the Department of Disabilities, Aging and Independent Living, or DAIL earlier this month, we received the blank form — redacted.
This is a form department staff must fill out after people served by certain DAIL programs experience a medical emergency, abuse, or other events.
Vermont law requires government entities to provide “any written or recorded information” upon request, and to do so "liberally," unless the records are exempt by law. Lawmakers have enacted over 260 exemptions to the state’s public records law, and the state receives failing grades on public access to information from groups like the Center for Public Integrity. Lia Ernst of the ACLU of Vermont calls it “unfortunate” that many agencies’ “knee-jerk position” is to only release public records after being pushed.
In this instance, Stuart Schurr, general counsel and public records officer for DAIL, provided the following explanation for his redactions. “I suspect you are attempting to ascertain the information that was redacted from the documents supplied to you on April 9…. To disclose the fields on the forms that were redacted would enable you to discover this confidential information.... For that reason, we have redacted those fields on the attached blank form.”
When asked whether the content of the blank form was confidential for all members of the public, and whether that confidentiality was temporary or permanent, Schurr declined to respond.
“The blank form is plainly a public record,” said Ernst, “there’s nothing there that could possibly be subject to a legitimate exemption.” Additionally, Ernst said Vermont's Supreme Court had “made clear” that a requester’s motive or intent must not influence an Agency’s decision to release or withhold records.
It wasn't until VPR asked his department's commissioner, Monica Hutt, to comment for this story that Schurr supplied the unredacted form, "in the spirit of transparency."
The redaction came about after VPR’s reporting on Adult Family Care homes. VPR had requested records of complaints about Adult Family Care home providers. In addition to redacting the open-answer sections of the forms, Schurr also redacted entire multiple choice questions and choices within the form. An example is below.
The unredacted form revealed the state had classified incidents as abuse or neglect, but redacted that information.
To explain his redaction, Schurr cited 33 V.S.A. § 6911(a), a broad law which states that information about the abuse, neglect and exploitation of vulnerable adults, "obtained through reports and investigations.... shall remain confidential and shall not be released absent a court order."
When VPR emailed Schurr and Commissioner Hutt for comment for this story, we received the following email. Attached was the blank unredacted form, provided "in the spirit of transparency."
VPR then emailed Hutt again, asking whether any allegations of abuse or neglect in Adult Family Care homes had been substantiated. Hutt said her department does not have the ability to count substantiated instances of abuse or neglect in each of its programs without reviewing all cases in all programs manually. Instead, Hutt wrote, "we have robust mechanisms for assuring quality and safety in our programs not limited to, but including, background checks for staff and/or providers."