Allen Gilbert, executive director of the ACLU-VT, testifies before the Senate Judiciary Committee on Thursday. Photo by Nat Rudarakanchana
In testimony to lawmakers on Thursday, Vermont Attorney General Bill Sorrell delivered a spirited defense of keeping criminal investigation records largely closed to the public.
Sorrell said he’d support opening police case files, if the investigation examined alleged misconduct by an on-duty police officer.
Critics have questioned the impartiality of police investigations of colleagues and say subjecting those records to public scrutiny would go a long way toward enhancing public trust in law enforcement.
Sorrell agreed with that assessment, in part. “To try to reinforce public confidence in the integrity of law enforcement policing its own, open up those files,” the attorney general told members of the Senate Judiciary Committee. But Sorrell didn’t say whether details of disciplinary investigations of police officers, usually conducted by an internal affairs department, should be made public.
Currently, records on internal affairs investigations are kept secret. Even state prosecutors have only limited access to internal documents for criminal investigations, sometimes for constitutional reasons.
Allen Gilbert, executive director of ACLU-VT, says those internal investigations, as well as other criminal investigation records, should be open to scrutiny. Confidentiality harms the police by eroding the public trust, he said.
“The state that we’re in now, where it’s so difficult to get so many police records, really doesn’t benefit either the public or police,” said Gilbert. “It’s often the perception rather than the reality that rules how people view the police … [such as] the public’s feeling police have something to hide, otherwise they’d be turning over more records. I think we’ve got a systemic problem here.”
In a legislative proposal, Gilbert urged Vermont to move to a widely adopted federal standard for access to records, which allows access unless prosecutors can prove disclosure harms someone in specific ways.
The law enforcement community, which sometimes opposes opening public records, supports the Shumlin proposal. An attorney for the Department of Public Safety, which oversees the state police, said her department has supported a move to the federal standard since early 2011.
Rosemary Gretkowski, a lawyer with the Department of Public Safety, tells lawmakers Thursday that her department supports the administration’s push toward a federal standard on public records and criminal investigations. Photo by Nat Rudarakanchana
Rosemary Gretkowski, the department’s general counsel, said no specific incidents or criticisms of investigation procedures prompted the department’s internal decision to support the federal standard.
Sorrell, seemingly alone in defending the status quo on records for most criminal investigations, maintained that both the Shumlin administration’s and the ACLU’s proposals would expose irrelevant and embarrassing details about innocent citizens to public view. He also argued that it would stretch the state’s legal resources.
He cited the investigation into the 1991 rape and murder of Patricia Scoville. Eighty-two men gave DNA saliva samples in that investigation, which eventually produced about 50 boxes of records, said Sorrell.
“There was a huge amount of investigation into Patricia Scoville’s private life, and her history of relationships, the nature of those relationships … I could go on,” said Sorrell to lawmakers. “Does the public have a valid reason for knowing that? How about access to Patricia Scoville’s diaries and journals?”
Shumlin’s general counsel, Sarah London, said in an interview that a substantial body of federal case law supports the right of state prosecutors to reject records requests if they invade personal privacy, an exemption the federal standard permits.
Sen. Dick Sears, D-Bennington, who chairs the Senate Judiciary Committee, said he is leaning toward the Shumlin administration’s proposal, but has yet to decide definitively.
“I’m really interested to understand if some of the problems the attorney general described have been encountered in those states which have adopted the federal standard,” he said. “I’d like to continue to know why we shouldn’t just follow the federal standard.”
According to Gilbert, 21 other states, the District of Columbia, and all federal government agencies use the FOIA standard for access to criminal case files.
Sorrell said he’d decide whether to press criminal charges against the police officer responsible for that tasering within two or three weeks, concluding a seven-month investigation. His office has so far refused to relinquish records in the case.
[DISCLOSURE: VTDigger will testify in support of increased access to criminal records this legislative session. The president of the Vermont Journalism Trust board, Bill Schubart, is a member of the ACLU-VT board.]
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I am deeply concerned that if investigative records become public record, witnesses to crimes or worse yet, frightened victims of crimes, who are brave enough to give evidence to police are exposed to the public and the perpetrator. Who in their right mind would come forward? We would be undermining the already difficult and sensitive work of police, would families allow children to identify abusers? Would a witness bother to assist police? There is an excellent reason to keep investigations private.
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“…witnesses…. frightened victims….brave enough to give evidence….exposed to the public…..” Yes, exactly. People must know their accusers, the public must know what evidence there may or may not be. Stop using the false promise of “security” to allow for more state secrets and false charges. We must have an open society. Honor is freedom. Without an open and honest system we will not be free but will become a fascist state… entirely.
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Same old Bill Sorrell. This is why he should never have been reelected to the AG spot. (should have been a recount) Privacy concerns? Right, security over freedom every time. Nothing so secure as state secrets.
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I absolutely agree with the concerns noted about potential public exposure and harm to innocent persons, and the ‘dampening effect’ such releases will likely have on people’s willingness to give information and other assistance to law enforcement were investigative records to become public domain. I agree that we should look carefully at the experience and results in other states.
If the decision is made to open these records, and there certainly are some solid reasons to do so, then there must be a mechanism to assure that the names and other particulars identifying non-subject persons party to the investigation are not released. There will be costs attached to making sure that released records do not contain such information. As always, ‘the devil is in the details’….
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Just to clarify: The federal standard that the ACLU, along with the governor and the state Department of Public Safety, believe the state should adopt contains numerous privacy protections. Records can be withheld from disclosure if release:
(A) could reasonably be expected to interfere with enforcement proceedings,
(B) would deprive a person of a right to a fair trial or an impartial adjudication,
(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,
(D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,
(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or
(F) could reasonably be expected to endanger the life or physical safety of any individual;
The ACLU feels the privacy protections of the third item (which is “could reasonably be expected to constitute an unwarranted invasion of personal privacy”) can be strengthened to better protect personal privacy by referencing Vermont law. The Vermont Supreme Court has issued several important decisions regarding Vermonters’ personal privacy rights that provide more specificity than the federal language.
Allen Gilbert, executive director, ACLU-VT
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As long as the people continue to return Mr. Sorrell to office, we will have an elected obstruction of justice.
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Attorney General Sorrell is wrong about this, but it is not helpful to impugn his motives or his integrity. Why not credit his sincerity and ask him to explain why the FOIA standard would not address his concerns?
How many of us, however law-abiding, would not be potentially embarrassed if every police investigative record were available for public inspection? But under the language that Allen Gilbert of the ACLU has helpfully posted above, the police have broad discretion to withhold documents for precisely the reason General Sorrell gives for maintaining the current and troubling categorical disclosure exemption.
It is important to keep in mind that, in a sense, the proposed FOIA standard and the current Vermont standard don’t differ. The disclosure exemptions under section 317(c) of the Access to Public Records Act are discretionary — the police are always free to release investigative records. Adopting the FOIA standard merely gives those denied access the opportunity to get a second opinion — from the judiciary — about whether the public’s interest in disclosure outweighs any competing policy imperatives (including personal privacy).
General Sorrell has previously argued that we should keep the categorical disclosure exemption because the FOIA standard would divert his office’s resources to the task of defending decisions to keep investigative records undisclosed for valid reasons. This argument is unpersuasive. The cost and hassle of challenging a non-disclosure decision means it will be extremely rare for anyone, even journalism organizations, to challenge decisions to withhold documents. And as to those decisions that DO get challenged, the cost (government legal resources expended on defending valid non-disclosure decisions) is well worth the benefits (an open society and an accountable government, both essentials in a democracy).
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This is a rare instance where I agree with Sorrell over the ACLU. There are three main requesters of criminal investigations: the media, organizations (including the ACLU), and insurance companies. Right now the default is non-disclosure. The press and others can go to court to get the documents if they feel there is a reason the information should be made public. Then a judge decides. This proposal would mean that any time the AG refuses disclosure for one of the exceptions, the AG/State could be taken to court. The AG would be required to defend the decision, and if unsuccessful in that defense, pay attorneys fees. This could cost Vermonters a lot of money to protect innocent people involved in criminal investigations. Those people could be the individual being investigated, neighbors, coworkers, family member, etc. Our criminal justice system used to be based on the idea of innocent until proven guilty, but in our current society with so much media coverage that idea has flipped. People are assumed to be guilty, and often even if they are found to be innocent by the court via a judge or jury, people still question their innocence.
If disclosure of police crime and/or misconduct is the issue, then let’s figure out a way to accomplish that goal. Perhaps an independent review board that oversees law enforcement. Not the lead prosecutor in the state (i.e. the AG).
Vermont has a good public records law regarding criminal investigations — let’s not break what is working well.
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Ms. Frankman is mistaken about current law. She writes: “Right now the default is non-disclosure. The press and others can go to court to get the documents if they feel there is a reason the information should be made public. Then a judge decides.”
In reality, right now (as Justice Dooley has made clear, among others) the press and others CANNOT go to court to get police records — the disclosure exemption is a categorical one and judges have no choice under the Access to Public Records Act other than to uphold decisions not to disclose these records. What Ms. Frankman describes as current law is, in essence, precisely what the ACLU is proposing. The police would still, in all likelihood, default to refusing to disclose the records but, at least, those who are serious about obtaining them could take their case to a judge.
Ms. Frankman is also in error when she makes this claim about what the bill would require the Attorney General to do if s/he believes police records should not be disclosed: “The AG would be required to defend the decision, and if unsuccessful in that defense, pay attorneys fees.” The pending legislation says nothing about attorney fees. The public records bill adopted LAST session requires the court to award attorney fees when the state pursues frivolous arguments to avoid document disclosures.
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The above commenter makes good sense. Furthermore, I do not see much discussion about the privacy of secondary/surviving victims of catastrophic crimes where a death has occurred. The media having access to details during such a time will ‘sell a lot of newspapers’ or increase readership, while that same sensationalism harms beyond measure some family somewhere during what are probably already the worst days of their lives. Do you really want that? For police accountability, rules can be modified. But otherwise, please- think! Also, the laws you put your pen to may come back and visit you one day. For example, 1 in every 30 families in America will feel the effect of a homicide. Even in Vermont. Thank you-
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It seems to make the most sense to focus on the issue of FOIA and which standards to use, rather than defending or attacking the Attorney General and his point of view.
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To clarify how the current Vermont c(5) police exemption works: police or a prosecutor or the attorney general must defend only one thing if taken to court over release of information related to a criminal investigation. That one thing is whether the information is indeed related to a criminal investigation. If the court agrees it is, no argument can be made for its release. The information is permanently off-limits to the public. This is what the Vermont Supreme Court decided this past March in a case brought by the Rutland Herald. The c(5)exemption, the court said, is a “categorical” exemption. If the record in question is in the category of a criminal investigation record, it is nondisclosable. No authority is given in the public records law to circumvent this clause.
If the federal FOIA standard is adopted, disclosure or nondisclosure is determined by applying a “balancing test.” The standard requires that a balance be struck between the public’s right to know and legitimate privacy interests. The process for requesting information related to a criminal investigation remains the same. A person wanting such a record files a public records request with the agency holding the record. The agency looks to the language in the federal standard to decide if there are grounds for withholding the record. If the agency believes there are, it may withhold the record. If not, it must release the record.
If the agency withholds a record and the requester believes the withholding isn’t justified, s/he may first file an “administrative” appeal. This is an appeal to a superior of the person who denied access. If the appeal results in the same determination of nondisclosure, the requester may then go to court. It is only then that a judge gets involved. The judge must decide if the agency’s decision to withhold the record is supported by the law. To do this, the judge looks to the enumerated factors in the law to determine if providing access will create harm by violating a legitimate privacy interest. If the judge agrees with the agency, the record is withheld. The requester has only one more option, and that is to appeal the decision to the Vermont Supreme Court.
If the judge agrees with the requester that the record should be released, the agency must turn over the record and pay the requestor’s legal fees and costs. Legal fees are the lawyer’s time and expenses, the costs are the expense to file the lawsuit in court, which currently is about $265.
The provision of mandatory awarding of fees and costs to prevailing plaintiffs was put in place by the legislature two years ago as a means of enforcing the public records law. Before, there was no effective enforcement mechanism — no fines, for example, if a public agency withheld a record they shouldn’t.
Like the requester, the public agency has the right to appeal the lower court’s decision to the Vermont Supreme Court.
Everyone agrees there are often competing interests surrounding the release of records held by public agencies. The public has a “right to know,” to access records to judge if public officials are doing their jobs. On the other hand, individuals have a right to privacy if certain kinds of harm can be shown. These competing rights are in fact laid out in the introduction to the state’s public records law.
Everyone also agrees that it isn’t always easy to find the balance between the two rights. That’s why many people now feel we need a good tool to help us find the proper balance. And the best took available, many believe, is the federal FOIA standard.
Allen Gilbert, executive director, ACLU-VT
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Mr. Gilbert:
You write: “If the record in question is in the category of a criminal investigation record, it is nondisclosable. No authority is given in the public records law to circumvent this clause.”
This is in an incorrect statement of current Vermont law. The disclosure exemptions, including the categorical exemption covering police records, are discretionary. The law enforcement authorities are ALWAYS free to release records unless some privacy statute compels non-disclosure. So, for example, nothing prevented the Town of Hartford from proving it had nothing to hide by releasing the records related to its invasion of Wayne Burwell’s home.
Your excellent proposal, to replace the categorical exemption for police records with the FOIA balancing test, would have the salutary effect of giving advocates of accountability and sunshine a second shot. In other words, in the Burwell case, even though the authorities in Hartford lacked the good judgment to conclude that the public benefit of disclosure vastly outweighed any possible privacy interests, a judge (who would not be hobbled by the Town’s self-preservation instincts in these circumstances) could and likely would decide otherwise and order the town to turn over the records.
Meanwhile, we should not let the police off the hook by falsely claiming they are currently prohibited from releasing their records. Even if the pending legislation is ultimately not adopted, law enforcement authorities are not off the hook.