Editor’s note: Allen Gilbert is executive director of the ACLU of Vermont.
No one who believes in government transparency and accountability is cheering the Vermont Supreme Court’s recent decision that police investigation records are “permanently and categorically” exempt from the public’s eye.
The decision complicates the efforts of the governor and Legislature to make state government more open – efforts begun last year that, unfortunately, have already begun to slow. Important changes were made last year to the public records law. But work on trimming back the more than 200 exemptions that keeps many records secret has moved at a slow pace. A sign of the energy behind the effort is the fact that the Legislature has actually created more exemptions since last year.
An effort to reform the state’s open meeting law as a parallel to public records changes has also stalled. A bill passed the Senate last year but hangs on the wall of the House Government Operations Committee, its chances for final passage this session unsure.
And the Shumlin administration itself, regardless of the governor’s statements that government be more open, wants to allow police to sidestep the Constitution’s basic protection against police abuse – the requiring of a warrant before police can search our “persons, houses, papers, and effects” – by allowing officers direct access to e-medical records of the drugs doctors prescribe for patients.
Perhaps the most chilling part of the court’s decision is the justices’ insistence that Article 6 of our state constitution – the article that says the people have the right to hold all government officials accountable for their actions – is meaningless as a check on government abuse of power. Article 6 is only a “vision,” the court said, a vision that is not made real until the Legislature acts to create systems of accountability.
And clearly, the court said, the Legislature has created no system of accountability when it comes to public oversight of police investigation practices. The Legislature has actually blocked any public access to records, the court said, that could shine a light on police actions. It has “permanently” exempted all police investigation records from disclosure.
This is at odds with what legislators and the governor have been saying they believe is necessary for government transparency and accountability. They need to act, quickly, to change the law so rhetoric and reality square.
There is already a clear path through the need to balance the integrity and confidentiality of police investigations with the public’s right to know. It’s a path nearly half the states are already using. It’s an approach that says police records can be kept out of public view if police can show that disclosure would harm an investigation or harm the rights of those involved. This system is based on the federal Freedom of Information Act law, and it’s becoming a national standard.
Adoption in Vermont of an “access absent harm” standard would provide strict assurance that confidential information won’t be compromised, but the arm of government that holds more direct power over citizens’ daily lives than any other government agency will be held accountable.
Neither the public nor police are served by the extreme secrecy the court’s decision places on Vermont police actions. The beat cops, investigators, and prosecutors in a high-quality law enforcement system want the public to know what they’re doing. The vast majority of investigations in Vermont are handled professionally and with a good deal of respect for citizens’ rights.
Drawing a cloak of secrecy around police actions only creates a suspicion the system isn’t operating on the up-and-up. Legislators need to act now so law enforcement receives the public confidence it deserves.
