¶27. dissenting. This is an example of creating a right where the governing statute does not provide for it. The right the majority has created is logical for the reasons it states. I agree that it would be good public policy. I cannot agree that we can make it up. Moreover, because the necessary result of the majority’s decision is to make the conduct of the town clerk a crime, I think we must proceed very cautiously.
*79¶ 28. As the majority acknowledges, 17 V.S.A. § 2590(d) authorizes the town clerk to destroy the ballots. It specifically contains an exception that could have applied here — that is, at any time during the period of 90 days after the election, the court could order a different disposition of the ballots. The different disposition is not restricted in the statute; it could have included an examination of the ballots by plaintiff. Of course, plaintiff had to ask for that disposition sufficiently quickly after the election to allow the court to act in the 90-day period, and he failed to do so. The majority calls the procedure under § 2590(d) “cumbersome and costly,” ante, ¶ 22 n.4, but it is the procedure that the Legislature explicitly created, unlike the procedure created by the majority.
¶ 29. The situation here is virtually unique because there is a statutory authorization to destroy a public record.5 Through 1 V.S.A. § 317a, Vermont provides that the custodian of a public record shall not destroy it “unless specifically authorized by law.” This is the only section of the Vermont Access to Public Records Act (PRA) that deals directly with the destruction of a public record.
¶ 30. Willful destruction of a public record without authority is a crime. Id. § 320(c). In this case, there is an authorization by law, so a town clerk cannot be charged criminally for destroying the ballots pursuant to 17 V.S.A. § 2590(d).
¶ 31. The majority holds, however, that there is an exception to the authorization when a public records request has been made for the record. Section 317a of the PRA does not provide such an exception, and it is the only section that deals directly with record destruction. Such an exception is not stated anywhere else in the PRA. Instead, the majority infers the exception because the “orderly process” of citizen access “would be circumvented.” Ante, ¶ 21. I emphasize that the majority infers such an exception because it is not stated anywhere in the statute, even though the authorization to destroy the record is stated explicitly. This is an implementation choice the Legislature could have made but did *80not. Even though I agree that the result is good policy, the choice is not for us but for the Legislature.
¶ 32. I also emphasize that in reaching its conclusion that the Town has circumvented the orderly process of citizen access, the majority is selective in describing the “orderly process.” The statutes it cites all deal with existing public records and access to them. We are dealing here with records that do not exist. In that circumstance, subsection 318(a)(4) of the PRA says that “if a record does not exist, the custodian shall certify in writing that the record does not exist,” and that certification becomes the extent of the custodian’s obligation under the statute. Subsection 318(a)(4) obviously trumps procedures cited in the majority opinion that are all based on access to records that actually exist.
¶ 33. In this case, the Town followed the letter of the law even as explained by the majority. By the time that plaintiff filed an access to public records request with the Town, the Town responded that there were no records that met the request. Subsection 318(a)(4) authorizes exactly that response.
¶ 34. The only possible remedy in this case is criminal prosecution of the town clerk under 1 V.S.A. § 320(c). I reiterate that we should be cautious in construing a statute to expand the risk of criminal liability with no description of the scope beyond that in an opinion of this Court. There are obvious questions about the scope of a Court-created exception to the authorization to destroy the ballots that can be answered only over time, leaving town officials in a state of uncertainty. This is exactly why the exception the Court has created should instead be created, if at all, by the Legislature, which can define its scope.
¶ 35. This opinion comes out during a legislative session in which the Legislature is considering amendments to the PRA. Whatever the outcome of this case, I hope the Legislature will consider the issues confronting us and specifically' amend the language of the statutes to more clearly define the interrelationship between the right of public access and the authorization to destroy public records, where it exists.
¶ 36. Reluctantly, I must dissent from this Court’s decision that the Town of Fairlee violated the PRA as it currently exists.
The majority labels the authorization as “purposeless.” Ante, ¶ 22 n.4. The statute serves the obvious purpose of bringing finality to elections. As I said in the beginning of this dissent, if the choice for us were between competing policies, I would vote with the majority. But the choice among competing policies belongs to the Legislature, not to this Court.