Exemptions

Under the Public Records Act, all public records are open to public inspection or copying unless specifically exempted by law. A core set of these exempt records are outlined in 1 V.S.A. § 317, but many exemptions also exist outside of 1 V.S.A. § 317. This statute is also where “public agency” and “public record” are defined. 

A repeal and reenactment provision for exemptions enacted or substantively amended in legislation introduced by the General Assembly in 2019 or later was added by Section 3 of Act 166 of 2018 and can be found in 1 V.S.A. § 317(e). Also added by Act 166 of 2018 is 1 V.S.A. § 317(f), which requires "a record produced or acquired during the period of applicability of an exemption" to "remain exempt following the repeal or narrowing in scope of the exemption.”

The following contains the legislative history (with historical notes) of the definitions and the exemptions found in 1 V.S.A. § 317.  

Business Day

The definition of business day was added by Section 3 of Act 59 of 2011 (H. 73) to clarify required response times to public record requests in 1 V.S.A. §§318 and 319.

Public Agency or Agency

The public agency definition was part of Act 231 of 1976 (H.276), the original public records act. In a January 22, 1975 memorandum, the Office of the Attorney General stated the definition of public agencies in H.276, also referred to as the Kendroff Public Access Bill,, was “under-inclusive” and differed from the public agencies covered under the open meeting law. The Senate Committee of General and Military further discussed whether municipalities should be included during the Committee's meeting on April 8, 1975. Ultimately, the Senate amended the definition (see: Senate Journal for March 25, 1976, pp. 451-458) to exclude municipalities and other political subdivisions. Municipalities and other political subdivisions were brought back under the definition of public agency by Act 202 of 1978 (H.350).

Public Record or Public Document

In Act 231 of 1976 (H. 276), the definition of a public record or document tried to enumerate various record types (staff reports, individual salaries, etc) before adding a more inclusive “or any other written or recorded matters produced or acquired in the course of agency business.” Subsequent amendments expanded the definition in attempts to cover emerging formats, such as “machine readable records.” Section 2 of Act 159 of 1996 (H. 780) added the more inclusive phrase “regardless of physical form or characteristics.” Even after Act 159, the public record definition was amended to embrace new formats. Act 158 of 2004 for example added “computer databases” to the list. Section 3 of Act 110 of 2008 (S. 229) recognized the inclusiveness of the “regardless of physical form or characteristics” language and removed references to specific formats.

Exemption #1

Exemption #1: Records which by law are designated confidential or by a similar term.

The language in Exemption #1 has remained unchanged since first adopted as part of Act 231 of 1976 (H. 276), the original public records act. It formally exempts records that are identified as confidential elsewhere in the statutes. 

Regarding records designated as confidential, the Vermont Supreme Court held in Norman v. Vermont Office of the Court Administrator, 176 Vt. 593 (2004) that redaction should be considered rather than complete denial of access to the records. Section 4 of Act 159 of 1996 (H. 780) amended 1 V.S.A. §318(e) to clarify that public agencies should redact confidential information, where possible, rather then deny access to the complete record.

Exemption #2

Exemption #2: Records which by law may only be disclosed to specifically designated persons.

The language in Exemption #2 has remained unchanged since first adopted as part of Act 231 of 1976 (H. 276), the original public records act. It formally exempts from public inspection and copying records that may only be disclosed to specific individuals or classes of individuals, as found in other statutes. The records of the Child Protection Registry outlined in 33 V.S.A. § 4919, for example, are exempt under this provision because they may only be disclosed to the limited group of individuals specified in the statute.

Exemption #3

Exemption #3: Records which, if made public pursuant to this subchapter, would cause the custodian to violate duly adopted standards of ethics or conduct for any profession regulated by the State.

The language in Exemption #3 has remained unchanged since first adopted as part of Act 231 of 1976 (H. 276), the original public records act.

Exemption #4

Exemption #4: Records which, if made public pursuant to this subchapter, would cause the custodian to violate any statutory or common law privilege other than the common law deliberative process privilege as it applies to the General Assembly and the Executive Branch agencies of the State of Vermont.

Exemption 4 is from Act 231 of 1976 (H. 276), the original public records act. Some communications, such as between an attorney and his or her client, are considered privileged under common law. This exemption preserves such privileges and precludes the disclosure of this type of information when it is a public record.

The original Exemption 4 language ended after “statutory or common law privilege.” Section 1 of Act 132 of 2006 (H. 615) added the phrase: “other than the common law deliberative process privilege as it applies to the general assembly and the executive branch agencies of the state of Vermont.” The legislature feared that the use of deliberative process privilege by agency and department heads created a loophole that would significantly undermine the public records act.

Among the case law and superior court decisions on Exemption 4 are 232511 Investments, Ltd. v. Town of Stowe (Vermont Supreme Court Entry Order May 9, 2005) which involved attorney-client privilege; Herald Association, Inc v. Dean, 174 Vt. 350 (2002) which involved executive privilege; Killington v. Lash, 153 Vt. 628 (1990) which involved executive privilege and attorney work-product privilege; Professional Nurses Services, Inc. v Smith, No. 732-12-04 (Washington Superior Court, July 14, 2004) involved deliberative process privilege.

Exemption #5

Exemption #5: Records dealing with the detection and investigation of crime [...].

Exemption 5 is from Act 231 of 1976 (H. 276), the original public records act. The language was amended by Section 3 of Act 59 of 2011 (H. 73) which expanded the exception of original arrest records to: “including any ticket, citation, or complaint issued for a traffic violation, as that term is defined in 23 V.S.A. § 2302.” This change came after questions were raised about the public's access to the records of traffic stops involving State Auditor Tom Salmon and gubernatorial candidate Peter Shumlin during their campaigns for state office in 2010. Exemption #5 was further amended by Act 70 of 2013.

Case law on Exemption 5 includes Caledonia Record Pub. Co. v. Walkton, 154 vt. 15 (1990) involving arrest records; Douglas v. Windham Superior Court, 157 Vt. 34 (1991) involving licensing disciplinary records; and State v. Tallman, 148 Vt. 465 (1987) involving affidavits of probable cause.

Exemption #6

Exemption #6: Tax return and related documents, correspondence, and certain types of substantiating forms [...].

The language in Exemption 6 has remained unchanged since Act 231 of 1976 (H. 276), the original public records act, although the original act reveals that the language was amended before passage. Certain tax information historically has been treated as exempt from disclosure. See for example Vermont's first state income tax law (Act. 17 of 1931).

Case law includes Finberg v. Murnane, 159 Vt. 431 (1992) involving lists of taxpayers and QueVt v. Town of Colchester No. 3894-7-03 (Washington County Superior Court, Nov. 5, 2003) a stipulated order involving a property tax database.

Exemption #7

Exemption #7: Personal documents relating to an individual [...].

With the exception of adding gender inclusive language, Exemption 7 has remained unchanged since Act 231 of 1976 (H. 276), the original public records act, although the original act reveals that the language was amended before passage. Defining the distinctions between personal and personnel has remained a challenge.

Case law, unless otherwise noted, primarily addresses distinctions between personal and personnel records, and includes Kade v. Smith, Secretary, Agency Human Services 223-8-03 (Vermont Supreme Court Entry Order June 5, 2006); Norman v. Vermont Office of the Court Administrator, 176 Vt. 593 (2004); Sprague v. University of Vermont, 661 F. Supp. 1132 (1987); and Trombley v. Bellows Falls Union High School District 27, 160 Vt. 101 (1993).

Exemption #8

Exemption #8: Test questions, scoring keys, and other examination instruments or data used to administer a license, employment, or academic examination.

Exemption 8 language has remained unchanged since Act 231 of 1976 (H. 276), the original public records act.

Exemption #9

Exemption #9: Trade secrets, meaning confidential business records or information [...].

Exemption 9 was in Act 231 of 1976 (H. 276), the original public records act. It was amended by Section 5 of Act 59 of 2011 to eliminate the phrase “but not limited to” between “including” and “any formulae” on line one and by adding reference to 18 V.S.A. §4632. This exemption was further amended by Section 23 of Act 29 of 2015 (H.18), adding "meaning confidential business records or information" after trade secrets and replacing "is known only to certain individuals within a commercial concern" with "in a commercial concern makes efforts that are reasonable under the circumstances to keep secret.    

Case law includes Omega Optical, Inc v. Chroma Technology Corp., 174 Vt. 10 (2002) involving unfair competition and employees’ duty of confidentiality.

Exemption #10

Exemption #10: Lists of names compiled or obtained by a public agency when disclosure would violate a person's right to privacy or produce public or private gain [...].

Exemption 10 is from Act 231 of 1976 (H. 276), the original public records act. It was amended to add “to lists of professional or occupational licensees” by Section 4 of Act 227 of 1982 (H. 278). Testimony to the House Government Operations on March 30, 1982 by Peter Taylor of the Vermont Dental Society and Dwight Baker of the Vermont Board of Registration of Land Surveyors indicated that the lists were exempt and the regulated professions wanted access to the lists maintained by the Secretary of State so they could identify and contact members of their respective professions.

Exemption #11

Exemption #11: Student records, including records of a home study student [...].

Exemption 11 is from Act 231 of 1976 (H. 276), the original public records act. It was amended by Section 14 of Act 107 of 2004 (H.756) to cover home-schooled students. This exemption mirrors the Federal Family Educational Rights and Privacy Act (FERPA), which requires federally-funded educational institutions to protect from disclosure personally identifiable information found in student records. Section 2 of Act 23 of 2015 (H.320) removed the phrase "at educational institutions or agencies funded wholly or in part by State revenue" and replaced the legal citation "P.L. 93 380" with "20 U.S.C. § 1232g."       

Case law includes Caledonian-Record Pub. Co, Inc. v. Vermont State Colleges, 175 Vt. 438 (2003) involving student disciplinary records, and Sprague v. University of Vermont, 661 F. Supp. 1132 (1987).   

Exemption #12

Exemption #12: Records concerning formulation of policy where such would constitute a clearly unwarranted invasion of personal privacy, if disclosed [...].

Exemption 12 is from Act 231 of 1976 (H. 276), the original public records act. Former Attorney General Kim Cheney’s testimony to the House Committee on General and Military Affairs on February 26, 1975 suggests that this exemption originally was intended to establish an executive privilege exception to public access. 

Exemption #13

Exemption #13: Information pertaining to the location of real or personal property for public agency purposes prior to public announcement of the project [...].

Exemption 13 is from Act 231 of 1976 (H. 276), the original public records act and has remained unchanged. The exemption is to protect the State from possible price manipulation if its interest in purchasing a property were known beforehand.   

Exemption #14

Exemption #14: Records which are relevant to litigation to which the public agency is a party of record [...].

Exemption 14 has remained unchanged since its adoption as part of Act 231 of 1976 (H. 276), the original public records act. The original act however reveals that the language was amended before passage. The exemption prevents use of the public records act to circumvent access to records that had been withheld in response to a discovery request. 

Case law includes Westco, Inc. v. Sorrell, 177 Vt. 287 (2004) involving public records relevant to the government’s pending case. 

Exemption #15

Exemption #15: Records relating specifically to negotiation of contracts, including collective bargaining agreements with public employees.

Exemption 15 has remained unchanged since the adoption of Act 231 of 1976 (H. 276), the original public records act. The exemption was not in the bill as introduced and was added during legislative passage of Act 231.      

Exemption #16

Exemption #16: Voluntary information provided by an individual, corporation, organization, partnership, association, trustee, estate, or any other entity in the State of Vermont, which has been gathered prior to the enactment of this subchapter, shall not be considered a public document.

Exemption 16 has remained unchanged since the adoption of Act 231 of 1976 (H. 276), the original public records act. The exemption was not in the bill as introduced and was added during legislative passage of Act 231.  It prevented the retroactive application of the Public Records Act. 

Exemption #17

Exemption #17: Records of interdepartmental and intradepartmental communications in any county, city, town, village, town school district, incorporated school district, union school district, consolidated water district, fire district, or any other political subdivision of the State [...]

Exemption 17 was added by Section 2 of Act 202 of 1978 (H. 350).  Municipalities were not included under the definition of “public agency” in the original public records act in 1976.  While the original language in H. 350 amended the definition of “public agency” in 1 V.S.A. §317(a) to include municipalities, it continued to exclude school districts from the definition. The House Committee on Municipal Corporations and Elections January 31, 1978 minutes on H. 350 show discussion on whether to include school districts and the Committee's February 28, 1978 Record of Action show the vote to include school districts and proposed amendment. The Senate, perhaps in an effort to assuage municipal concerns, added what is now Exemption 17, excluding certain municipal records from disclosure.

Exemption #18

Exemption #18: Records of the Office of Internal Investigation of the Department of Public Safety, except as provided in 20 V.S.A. § 1923.

Exemption 18 was added by Section 6 of Act 156 of 1980 (H. 738). The exemption was added in connection with the creation of a process for conducting internal investigations within the Department of Public Safety. It is possible to get a sense of the intent of the exemption by tracing reports documenting concerns over the Department of Public Safety’s internal controls and the need for a formal internal investigation process.

Following a review, the House Committee on Appropriations issued a formal report titled Performance Audit of the Department of Public Safety in December 1975 that included a recommendation for better internal controls. Later, in April 1980, a special legislative committee referred to as the Costello Committee released the Preliminary Report of the Committee to Inquire into the Organization, Structure and Administrative and Management Policies of the Department of Public Safety, concluding that the department suffered from “an impaired capacity to deal expeditiously and justly with allegations of wrongdoing.” The problems the Costello committee discovered were echoed in a 1980 investigation report into the activities of the Vermont State Police by the Office of Attorney General. The legislature responded by passing Act 156 of 1980 to provide for better internal controls and an internal investigation process for the Department of Public Safety.

Exemption #19

Exemption #19: Records relating to the identity of library patrons or the identity of library patrons in regard to library patron registration records and patron transaction records in accordance with 22 V.S.A. chapter 4.

Exemption 19 was added by Section 2 of Act 28 of 1989 (H. 137). The exemption was included in a larger piece of legislation which sought to update laws related to libraries. Exemption 19 also is an example of why relying exclusively on the exemptions enumerated in 1 V.S.A. §317 can be misleading. Act 129 of the 2008 fleshed out the protection of library patron records but that elaboration is found in 22 V.S.A. §§171-173, not in 1 V.S.A. §317.

Exemption #20

Exemption #20: Information that would reveal the location of archaeological sites and underwater historic properties, except as provided in 22 V.S.A. § 761.

Exemption 20 was added by Act 136 of 1990 (H. 689). As the State’s archeological program, starting in the mid-1970s, gathered information on early Native sites and the Lake Champlain Maritime Museum, created in 1985, began identifying shipwreck sites in Lake Champlain there was concern that premature public release of the information would put these sites at risk. The exception within the exemption, found in 22 V.S.A. § 762, permits the state to use the otherwise exempt information for public purposes.

Exemption #21

Exemption #21: Lists of names compiled or obtained by Vermont Life magazine for the purpose of developing and maintaining a subscription list [...].

Exemption 21 was added by Section 23 of Act 46 of 1995 (H. 508). The exemption was added to provide some protection to Vermont Life as competitors sought to acquire its subscription list through the Public Records Act.

Exemption #22

Exemption #22: Repealed.

The former Exemption 22 was added by Section 58 of Act 46 of 1995 (H. 508). The exemption was enacted as a small piece of a much larger bill related to economic development. The statute subchapters that the exemption references, found in 32 V.S.A. §5929 and 32 V.S.A §5930, were repealed by Act 94 of 2006. 

Exemption #23

Exemption #23: Any data, records, or information produced or acquired by or on behalf of faculty, staff, employees, or students of the University of Vermont [...].

Exemption 23 was added by Section 2 of Act 159 of 1996 (H. 780). This bill attempted to substantially re-write the Public Records Act. The Senate, feeling it did not have enough time to adequately review the bill, however struck all but amendments to 1 V.S.A §316 on actual cost and other provisions; to 1 V.S.A §317 relating to the definitions of public agencies and public records; and to the list of the exemptions.

In amending the definition of public agency, H. 780 added “instrumentality.” This inclusion clarified that the University of Vermont and the Vermont State Colleges, as instrumentalities of the state, were subject to the Public Records Act. That UVM was subject to the public records act had already been determined by the Vermont Supreme Court in Animal Legal Defense Fund v. Institutional Animal Care and Use Committee of UVM, 159 Vt. 133 (1992). University officials worried that being under the public records act would prematurely expose research records to release and possibly affect the University’s ability to protect work in progress, patent applications, and copyright. UVM then successfully proposed adding the Exemption 23 language to H. 780.   

This exemption was last amended by Section 3 of Act 29 of 2015 (H.18), replacing the words "developed. discovered, collected, or received" with "produced or acquired" to align with the most recent definition of public records in 1 V.S.A §317.

Exemption #24

Exemption #24: Records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.

Exemption 24 was added by Section 2 of Act 159 of 1996 (H. 780). This bill attempted to substantially re-write the Public Records Act. The Senate, feeling it did not have enough time to adequately review the bill, however struck all but amendments to 1 V.S.A §316 on actual cost and other provisions; to 1 V.S.A §317 relating to the definitions of public agencies and public records; and to the list of the exemptions. This exemption seemingly underscores the deliberative process privilege for judicial bodies and other agencies carrying out an adjudicative function, such as those involved in administrative law.

Exemption #25

Exemption #25: Passwords, access codes, user identifications, security procedures, and similar information the disclosure of which would threaten the safety of persons or the security of public property.

Exemption 25 was added by Section 2 of Act 159 of 1996 (H. 780). This bill attempted to substantially re-write the Public Records Act. The Senate, feeling it did not have enough time to adequately review the bill, however struck all but amendments to 1 V.S.A §316 on actual cost and other provisions; to 1 V.S.A §317 relating to the definitions of public agencies and public records; and to the list of the exemptions. A significant portion of the deliberations on H. 780 looked at the impact of digital records on the Public Records Act and this exemption, in part, addressed one of the issues associated with the digital environment.  

Exemption #26

Exemption #26: Information and records provided to the Department of Financial Regulation [...].

Exemption 26 was added by Section 29 of Act 167 of 1996 (H. 791), an act related to the enforcement of insurance regulations. The exemption seeks to ensure the confidentiality of consumer complaint records. Initially the section was erroneously listed as Exemption 23 but subsequent to passage was corrected to Exemption 26.

Exemption 26 was amended by Section 38 of Act 180 of 1996 (S. 345) which changed the name of the Department of Banking, Insurance and Securities to the Department of Banking, Insurance, Securities and Health Care Administration, and later by Section 2 of Act 78 of 2012 (H.512), which changed the name of the Department of Banking, Insurance, Securities and Health Care Administration to the Department of Financial Regulation. Section 6 of Act 29 of 2015 (H.18) made some general changes to this exemption, mainly replacing "individual" with "person" and striking a reference to records provided a "company" in reference to a dispute.

Exemption #27

Exemption #27: Information and records provided to the Department of Public Service or the Public Utility Commission [...]

Exemption 27 was added by Section 21 of Act 182 of 1996 (H. 792), an act which amended a number of laws related to Vermont’s utilities. This exemption seeks to ensure the confidentiality of utility consumer complaint records. Initially the exemption was erroneously listed as Exemption 23 but subsequent to passage was changed to Exemption 27. Exemption 27 was amended by Section 16 of Act 31 of 2019 (H.133), which added the information and records of the Public Service Commission in addition to those of the Department of Public Service.  

Exemption #28

Exemption #28: Records of, and internal materials prepared for, independent external reviews of health care service decisions [...]

Exemption 28 was added by Section 12 of Act 159 of 1998 (H. 163), an act which sought to improve consumer protections related to health insurance. Exemption 28 was amended by Sec 3 of Act 76 of 2002 (S. 225) to extend the exemption to include records of independent reviews of mental health care decisions.

Exemption #29

Exemption #29: Records in the custody of the Secretary of State of a participant in the Address Confidentiality Program [...].

Exemption 29 was added by Section 3 of Act 134 of 2000 (H. 807). The exemption protects from disclosure information related to people who are victims of domestic violence, sexual assault, or stalking who have registered with the Secretary of State’s address confidentiality program. The exemption was modeled after a law in Washington State. Exemption 29 was amended by Section 9 of Act 28 of 2001 (H. 476) to restrict the exemption to records in the custody of the Secretary of State and to eliminate the phrase “during the period of certification.”

Exemption #30

Exemption #30: All State-controlled database structures and application code [...].

Exemption 30 was added by Section 1 of Act 78 of 2002 (H. 723). The exemption seeks to preserve the state’s marketing advantage by protecting from disclosure information about how certain state agencies collect and analyze data from state databases.

Exemption #31

Exemption #31: Records of a registered voter's month and day of birth, driver's license or nondriver identification number, telephone number, e-mail address, and the last four digits of his or her Social Security number [...]

Exemption 31 was added by Section 1 of Act 59 of 2003 (H. 460). The statewide voter check list was adopted as part of the federal Help America Vote Act (HAVA). This exemption was amended by Section 3 of Act 30 of 2015, striking "and street address if different from the applicant's mailing address." In the following year, "or the failure to register to vote under 17 V.S.A. § 2145a" was added by Section 6 of Act 80 of 2016 (H.458).

Exemption 31 was further amended by Sec. 5 of Act 50 of 2017 (H.512), revising the phrase "motor vehicle operator's " to "driver's" and adding "nondriver identification" number and "e-mail address," and by Section 2 of Act 128 of 2018 (H.624), which added "telephone number" and revised the phrase "an application to the statewide voter checklist" to "a voter registration application." 

Exemption #32

Exemption #32: With respect to publicly owned, managed, or leased structures, and only to the extent that release of information contained in the record would present a substantial likelihood of jeopardizing the safety of persons or the security of public property, final building plans, and as-built plans, [...].

Exemption 32 was added by Section 29 of Act 63 of 2003 (H. 457), which was the capital construction bill. Note that Section 29 purports to add Exemption 31. Since there was already an Exemption 31, it was renumbered as Exemption 32. This exemption was offered to address security concerns for the State’s infrastructure in the aftermath of the 9/11 terrorist attacks.

Exemption #33

Exemption #33: Account numbers for bank, debit, charge, and credit cards held by an agency or its employees on behalf of the agency.

Exemption 33 was added by Section 30 of Act 63 of 2003 (H. 457), which was the capital construction bill. Note that Section 30 purports to add Exemption 32. Since there was already an Exemption 32 (see history of Exemption 32), it was renumbered as Exemption 33.

Exemption #34

Exemption #34: Affidavits of income and assets as provided in 15 V.S.A. § 662 and Rule 4 of the Vermont Rules for Family Proceedings.

Exemption 34 was added by Section 12 of Act 159 of 2004 (H. 35). Exemption 34 was actually included in two separate 2004 acts: Act 159 and Section 6 of Act 146 (H. 538). Since the exemption language in Act 159 was broader and adopted later, it is the language used for Exemption 34. The exemptions relate to income statements used to calculate child support obligations outlined in 15 V.S.A. § 662 and Vermont Court Rules for Family Proceedings.

Exemption #35

Exemption #35: Repealed.

The former Exemption 35 was added by Act 158 of 2004 (H. 547). This act added “computer databases” to the public record definition in 1 V.S.A. § 317(b) and addressed certain data in the computer assisted mass appraisal system. It reflected concerns arising from the QueVT court case that seemed to expose personal and financial information contained in a property tax database. A conference committee added a sunset provision to the bill, which took effect June 30, 2005.

Exemption #36

Exemption #36: Anti-fraud plans and summaries submitted for the purposes of complying with 8 V.S.A. § 4750.

Exemption 36 was added by Section 3 of Act 179 of 2006 (H. 150), a larger piece of legislation that established insurance fraud as a crime. The act mandated that insurers develop and implement anti-fraud plans and required the former Department of Banking, Insurance, Securities, and Health Care Administration (BISHCA), now Department of Financial Regulation (DFR), to enforce this provision. The exemption prevents the disclosure of any anti- fraud plans obtained by DFR as part of its oversight function.

Exemption #37

Exemption #37: Records provided to the Department of Health pursuant to the Patient Safety Surveillance and Improvement System established by 18 V.S.A. chapter 43a.

Exemption 37 was added by Section 326 of Act 215 of 2006 (H. 881). Included within the massive Appropriations bill for that year, the exemption pertains to information collected by the Department of Health as part of a patient safety surveillance and improvement system designed to reduce the number of medical mistakes and other adverse events in hospitals (18 V.S.A., Chapter 43a). The legislation followed enactment of the federal Patient Safety and Quality Improvement Act of 2005 which also contained exemptions to public access in order to promote the reporting of events in hospitals that affected patient safety. 

Exemption #38

Exemption #38: Records that include prescription information containing data that could be used to identify a prescriber [...].

Exemption 38 was added by Section 18 of Act 80 of 2007 (S. 115). The exemption was included in a larger bill intended to improve the transparency of the costs of prescription drugs. The act makes other prescriber-identifiable information confidential outside of Exemption 38. One of these provisions, found in 18 V.S.A. § 4631(d), was struck down as unconstitutional by the United States Supreme Court in Sorrell v. IMS Health, Inc., 10-779 (2011).

Exemption #39

Exemption #39: Records held by the Agency of Human Services or the Department of Financial Regulation, which include prescription information containing patient-identifiable data, that could be used to identify a patient.

Exemption 39 was added by Section 18 of Act 80 of 2007 (S. 115). The exemption was included in a larger bill intended to improve the transparency of the costs of prescription drugs. While Exemption 38 applies to prescriber-identifiable information, Exemption 39 precludes the disclosure of patient-identifiable information.

Exemption #40

Exemption #40: Records of genealogy provided in an application or in support of an application for tribal recognition pursuant to chapter 23 of this title.

Exemption 40 was added by Section 5 of Act 107 of 2010 (S.222). The exemption attempts to address certain information used for documentation for tribal recognition. Drafts from March 3, 2010 and April 20, 2010 show a transition from leaving all the information open to closing all the information. A memo written by Fred Wiseman provides some insight into the closing of just the genealogical records.

Exemption #41

Exemption #41: Documents reviewed by the Victims Compensation Board for purposes of approving an application for compensation pursuant to 13 V.S.A. chapter 167, except as provided by 13 V.S.A. §§ 5358a(b) and 7043(c).

Exemption 41 was added by Section 8 of Act 145 of 2012 (S.189). The exemption was included in a larger bill to expand the confidentiality of cases accepted for court diversion. 

Exemption #42

Exemption #42: Information that could be used to identify a complainant who alleges that a public agency, a public employee or official, or a person providing goods or services to a public agency under contract has engaged in a violation of law [...].

Exemption 42 was added by Section 1 of Act 129 of 2014 (H.863). This exemption was added following testimony on the applicability of other exemptions, particularly the "personal documents" exemption (exemption #7), in limiting public access to records that would disclose the identity of a whistleblower.