Vermont Supreme Court ruling increases police accountability

­­Editor’s note: This story was written by Cindy Ellen Hill, a law and policy writer and attorney in Middlebury.

The Vermont Supreme Court chambers

The Vermont Supreme Court chambers

The Vermont Supreme Court ruled last week that records of police agencies, such as radio and dispatch unit logs, are not automatically exempt from disclosure even when law enforcement says the information is pertinent to an investigation.

In Bain v. Windham County Sheriff Keith Clark et al., the court reconfirmed that the strong public interest in disclosure of public records is “particularly acute in the area of law enforcement.”

Plaintiff Steven R. Bain, representing himself in the case before the Supreme Court, had been convicted of criminal charges in 2005 that led to his incarceration as a habitual offender. Bain has since engaged in unsuccessful appeals of his conviction as well as litigation pertaining to the issue of whether the search of his home in May 2003 was conducted illegally. It is in regards to this latter point that Bain requested, pursuant to Vermont public records law, copies of “any and all computer, telephone or otherwise generated radio dispatch unit log[s]” pertaining to his arrest. Receiving no response to his request, Bain filed an appeal.

The Windham Superior Court found in favor of Sheriff Clark, ruling that the records sought were exempt from disclosure under Vermont law because they met the criminal investigation exemption. The Vermont Supreme Court overturned that holding and remanded the matter to the Windham Superior Court, directing that court to evaluate whether the content of the records sought contain information which may actually interfere with criminal prosecutions, endanger witnesses or reveal names of informants.

Where compelling policy interests do not override the presumption that agency records are accessible to the public, the state Public Records Act must be construed “against the custodian of such records” with any doubts resolved “in favor of disclosure.”

Vermont’s public record law starts with a simple precept embodied in Article 6 of the state constitution: The power of the state government derives solely from the people of the state, and “therefore, all officers of the government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.” The State Public Records Act indicates an intent to fulfill this constitutional mandate, “Any person may inspect or copy any public record of a public agency…”. However, there are at least 206 exemptions to the Public Record Act, according to a January 2007 report by Legislative Council lawyer Michael J. O’Grady.

The criminal investigation exemption has been among the most nebulous of these exemptions, as “the statute gives little to no guidance as to what an investigation is, when it starts or when it ends,” according to a September 2011 white paper produced by the New England First Amendment Coalition, a project of the New England First Amendment Center at Northeastern University.

Few court cases in Vermont have addressed the investigative public records exemption. That white paper, “The Investigative Exemption to State Public Records Acts for Public Safety Documents,” was produced in response to a Vermont Superior Court denial of a public records request made by VTDigger editor Anne Galloway to the Hartford Police Department relative to the detention of an individual in May 2010.


  1. Christian Noll :

    This is one of the points of my book.

    Local and state law enforcement only have to say the word “investigation” and they will be able to legally or illegally:

    1)destroy valuble and conclusive evidence

    2)with hold valuble and conclusive evidence from the general public

    3)wage irreperable harm and damage unto peaceful, innocent tax payers under their own political agenda.

    Putting the fox in charge of the hen house so to speak.

    The police are not above the law. The word “Investigation” does not preclude nor exclude the police themselves.

    Vermont needs to re-establish it’s independance from this influx of ultra oppressive conservatism.

    • Karl Riemer :

      Wait… what? Police secrecy is a conservative objective? Local and state law enforcement have “their own political agenda”? Lines may connect those dots but they aren’t self-evident. Maybe the secret’s in the book.

      • Christian Noll :

        Yes the answer IS IN my book.

        However you must know how to read.

      • Christian Noll :

        Karl Riemer thank you,

        I noticed that you used the word “Secret” twice and I was wondering if you were trying to quote me on that?

        Reason being, I never used that word.

        Also the word “Conservative” takes on different meanings to different individuals, fluctuating with context.

        You are right though, in that “they aren’t self evident” and I am still [mise en charge] to make more visible those “lines conecting the dots.”

        I’m working on it.

  2. Patricia Donalds :

    Routine polygraphs to help fight and prevent police misconduct and corruption.

    • Christian Noll :

      Patricia thank you however, as your link explains, the occasional Polygraphs do ABSOLUTELY NOTHING to prevent police misconduct.

      Why? Well here’s why.

      For starters, outside of an initial employment screening only federal police (such as the one’s listed in your link) are obliged to take “Routine polygraphs.”

      Secondly, the type of misconduct they may detect and what’s actually happening right here in Vermont are two completely different types of police misconduct. Since local and state police aren’t required to take “Routine Polygraph” tests, they are actually able to get away with much more crime.

      The misconduct I’m talking about is rampent in the Burlington and South Burlington Police Departments and are the subject of my book (mock it if you wish.)

      Until you’re an actual victim Patricia, “Who cares!”

      Our local and state law enforcement are not required to take “Routine Polygraph” tests and therefor its not a concern for them.

      I might humbly add that even if they did have to take one occasionally, it would do ABSOLUTELY NOTHING to prevent or disparage misconduct as we’ve known it.

      Vermont ranks three and a half times the national average for police misconduct and leads THE NATION in police misconduct per capita of police officers. (NPMSRP)

      There’s no “secret” in my book unless you’re trying to cover something up, which apparently we have been doing.

      Rich Long of Champlain College is a prime example, and one I’ll use with relish.

      I’ll never forget going on a “code 3″ run with him for the first time back in 1988. What disgrace !

  3. Over a year ago my son, who has a disability called 911 after being assaulted by a Home Care Provider employed by Sterling Area Services (SAS) in Morrisville. Three employees from SAS intercepted and told the Trooper that my son was incompetent and wasn’t following the rules. The Trooper ignored my son’s request to have his Legal Guardian present and instead told my son he was lucky he wasn’t in a 6×6 cell at corrections.

    My request for a copy of the so called “Investigation” was denied, all though the States Attorney did confirm the Trooper made this comment to my son.

    My son was not afforded an opportunity to speak to the Trooper without his attacker standing right next to him.

    Disability Rights Vermont Investigated and made findings of abuse. Vermont Adult Protective Services (APS) did nothing.

    My request for the APS investigation is also denied. The system is set up to protect the Abusers.



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