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.
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.