Attorney General Bill Sorrell testifies before a Statehouse committee on Friday. Photo by Nat Rudarakanchana
Gov. Peter Shumlin wants to provide better access to criminal investigation records.
Under current state law, records created during a criminal investigation are absolutely and indefinitely confidential, and are generally unavailable to the public or the press.
The governor is urging state lawmakers to adopt the more liberal federal standard governing the release of state records.
In a Montpelier press conference on Friday, Shumlin proposed allowing public access to criminal investigative records unless the state’s lawyers can prove in a given case that disclosure will harm a specific person.
Gov. Shumlin stands behind his administration secretary Jeb Spaulding on Friday as they outline measures aimed to boost the transparency of state government. Photo by Nat Rudarakanchana
The standard for the federal government’s Freedom of Information Act (FOIA) requests has been adopted by 21 other states.
“Our hope is that such a law would result in greater transparency without compromising the effective investigation or prosecution of criminal cases,” said Shumlin in a statement.
Shumlin’s general counsel, Sarah London, explained that the impetus for the administration’s call came from a Vermont Supreme Court decision last year, in which judges interpreted state statute as categorically denying access to criminal investigative records, in the Rutland Herald v. Vermont State Police case.
London explained that in that case justices “concluded that the existing language [V.S.A. 317c5] creates a categorical and indefinite exemption from the public records act. That’s what this will most directly change.”
The question of access to state records has become a heated topic in recent years, with critics questioning the impartiality of investigations of police misconduct, overseen by police and state prosecutors, in which investigative records invariably remain secret.
Although Shumlin favors open records for all criminal investigations, Attorney General Bill Sorrell argues that access should be limited to cases in which law enforcement personnel are accused of misconduct on duty. That would protect the privacy of citizens mentioned in case files and saves strained state prosecutors the burden of applying for exemptions, he told VTDigger.
“I think we should be more respectful of the personal privacy of average Vermonters,” said Sorrell. “My proposal is to open up the files as it relates to police officer on-duty cases or investigations of police conduct on duty. … For average citizens, the Legislature has it right. This isn’t a case where the federal government has it right.”
Sorrell said he wouldn’t revise his position in light of the governor’s stance, but would wait and see what legislators decide in coming months.
Legislation is already being discussed by the Senate Judiciary Committee, as an exchange of letters between Sorrell and committee chair Sen. Dick Sears, D-Bennington . Sears is tentatively in favor of the federal standard, though he wants to hear more testimony; a draft bill is sure to come up for review, he said.
Transparency advocate Allen Gilbert of the ACLU-VT welcomed Shumlin’s proposal today, saying that it would enhance public confidence in the integrity of police conduct. He expected any opposition to come mostly from the law enforcement community, especially from prosecutors, rather than from political quarters.
Because of the secrecy around criminal records, said Gilbert, there’s a public perception that it’s impossible to make informed judgments about how well police are doing their jobs, in the rare cases where police may have acted questionably.
“Police have been damaged by the exemption and the way it’s been used, because of the public’s perception that they’re trying to hide something,” Gilbert added.
Shumlin also unveiled a newly revamped website which details the state’s finances, called SPOTLIGHT. He billed the website as a further step toward transparency and public understanding of the government’s use of taxpayer funds.
In 2012, the U.S. Public Interest Research Group gave Vermont a D- grade for fiscal transparency, an issue which surfaced during the race for state treasurer.
Vermont has consistently scored low on national ratings for government accountability, a point state officials acknowledged on Friday. The Center for Public Integrity gave the state a D+.
Shumlin said addressing the criminal records exemption, one of more than 200 ways the state can deny access to records, would be the fastest way to make progress on public records reform, given a legislative committee’s failed attempt to address the topic comprehensively.
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I think Attorney General Sorrell’s proposal is sound and his instincts are right on target:
“I think we should be more respectful of the personal privacy of average Vermonters,” said Sorrell. “My proposal is to open up the files as it relates to police officer on-duty cases or investigations of police conduct on duty. … For average citizens, the Legislature has it right. This isn’t a case where the federal government has it right.”
Governor Shumlin, if you knew what it felt like for yourself or a loved one to be victim of a crime, you would NEVER consider this action you have proposed.
Furthermore, if you knew what it was like to have an uphill climb for weeks or years afterward, just to have ANY justice served AFTER you or a loved one has been victim of a crime,
AND added to that the knowledge of how EASILY a criminal case’s prosecution could be compromised with just the slightest slip in ANY area-
you would NEVER EVER, EVER in even the slightest way consider what you are proposing.
Please speak with some prosecutors and some victims or secondary (surviving family) victims of crimes before you consider this idea any more.
Respectfully-
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I think AG Sorrell’s ideas are correct. If too much info is revealed during the investigative stages it could ultimately harm an investigation. If info is misconstrued about a defendant or even a victim a negative view of these people can be unfair to these people especially in the event of an acquittal. Reputations could be unfairly harmed.
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FOIA exemption 7 was passed by Congress overriding a veto by President Ford to address the abuses of the criminal justice system during Watergate. I doubt few think that the federal government is to open with its criminal investigations, but the exemptions make more sense than the blanket secrecy in Vermont.
Under FOIA exemption 7, records need not be disclosed where disclosure would threaten: the integrity of the investigation, the rights of the accused, personal privacy, confidential sources or methods, and the safety of individuals, consistent with the ethical responsibilities of the prosecutor.
Where no such rights are implicated, criminal records ought to be open to inspection to ensure against abuse and to further trust in law enforcement.
FOIA exemption 7, now in effect for 37 years, balances the necessary need for secrecy with the idea of open government and has the further benefit of volumes of “judicial gloss” so we know what the terms mean.
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Based on the photo above your article I’m not sure how riveting the AG’s testimony was…