Vermont Attorney General defends closed criminal records, citing privacy concerns

Allen Gilbert,  executive director of the ACLU-VT, testifies before the Senate Judiciary Committee on Thursday. Photo by Nat Rudarakanchana

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 Shumlin administration advanced a similar proposal earlier this month, in a bid to increase government transparency.

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 towards a federal standard on public records and criminal investigations. Photo by Nat Rudarakanchana

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.

Earlier this week an attorney representing Theresa Davidonis, whose boyfriend died in June after a police tasering, requested investigative case files from the state, a request a superior court judge took seriously.

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.]

Nat Rudarakanchana

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10 Comments on "Vermont Attorney General defends closed criminal records, citing privacy concerns"


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Nancy Cathcart
3 years 9 months ago

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.

timothy price
3 years 9 months ago

“…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.

timothy price
3 years 9 months ago

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.

Luci Stephens
3 years 9 months ago
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… Read more »
3 years 9 months ago
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… Read more »
Timothy MacLam
3 years 9 months ago

As long as the people continue to return Mr. Sorrell to office, we will have an elected obstruction of justice.

Sarah Frankman
3 years 9 months ago
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… Read more »
Allison Costa
3 years 9 months ago
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… Read more »
Michael Keane
3 years 9 months ago

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.

3 years 9 months ago
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.… Read more »
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