Montpelier, Vt. – Today the State of Vermont and the Vermont Journalism Trust (a.k.a. VTDigger) announced a settlement in the matter Vermont Journalism Trust vs. State of Vermont, Docket No: 6-1-19 Wncv.
The litigation involved two public records requests by VTDigger related to Jay Peak’s EB-5 program, which were denied because the state continues to be engaged in active litigation concerning the EB-5 program. Under terms of the settlement, the State of Vermont agreed to provide VTDigger the originally requested documents as well as additional agreed-upon Jay Peak records.
“I am pleased we reached a settlement that allows the public release of both the documents at issue in this lawsuit and some additional Jay Peak records,” said Governor Phil Scott. “The EB-5 fraud represents a dark period for the Northeast Kingdom and given the clear public interest in this fraud, I remain committed to ensuring transparency to Vermonters by releasing relevant documents as early as legally possible.”
VTDigger began covering allegations of fraud at the ski area in northern Vermont in 2014, and has been seeking documents on the public’s behalf since that time. Due to ongoing litigation, only a few hundred records have been released, with disclosure pending on 1.5 million pages of documents between Shumlin administration officials and Jay Peak developers. In addition to this settlement, the Department of Financial Regulation continues its work to implement the Governor’s Jay Peak EB-5 document transparency plan for all 1.5 million pages, working now with a vendor to release an initial 800,000 pages of relevant documents.
Attorney General T.J. Donovan, whose office represented the State in the lawsuit and the settlement discussions, said “I am pleased as well in reaching a resolution with VTDigger that provides and promotes transparency while balancing the competing needs of fulfilling our professional obligations as lawyers."
Anne Galloway, founder and editor of VTDigger, said the records released on Friday are long overdue to the public. “VTDigger remains committed to making sure that the story of Jay Peak is told in its entirety,” Galloway said. “We applaud the State for the commitment to transparency embodied in this settlement and look forward to further cooperation with our ongoing requests.”
VTDigger’s legal team - Tim Cornell of Boston-based Cornell Dolan; Mark Jackson and Cortelyou C. Kenney of Cornell Law School’s First Amendment Clinic; and Dan Richardson of Tarrant, Gillies and Richardson - filed a complaint in January seeking official communications between the Agency of Commerce and Community Development and U.S. Citizenship and Immigration Service regarding the projects at Jay Peak Resort.
Requests for the records from VTDigger have been repeatedly denied over the past three years. The State has cited the Public Records Act’s relevant-to-litigation exemption, 1 V.S.A. § 319(c)(14), in blocking release of the documents.
Cornell, VTDigger’s attorney, said "It is refreshing to see the State and its citizens cooperate in the release of public documents. This brings us a step closer to finding out how the Jay Peak scandal happened."
“We took on this case because of the superb local journalism that helped uncover the largest fraud in the EB-5 immigration program in the nation,” said Cornell Law’s Kenney. “Obtaining these records was an important victory for journalism and public integrity. We hope to continue collaborating with VTDigger in working toward achieving broader legal change. Special thanks to fellow Caitlin Foley and interns Corina Gallardo, Rafa Agundez, and Fernanda Merouco from the Cornell Law School First Amendment Clinic.”
In 2014, the Vermont Department of Financial Regulation began an investigation into the fraud at Jay Peak, which ultimately led to federal and state action. In April 2016, the Securities and Exchange Commission and the State of Vermont charged the developers of Jay Peak Resort with 52 counts of fraud and the misuse of $200 million in foreign investor funds.
The developers’ “Ponzi-like” scheme was perpetrated over an eight-year period from 2008-2016, during which the Vermont Agency of Commerce and Community Development administered the EB-5 program.
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