Vermont’s public records law is rife with exemptions, but last spring the Legislature lifted one that had kept locks on all records relating to criminal investigations.
A committee of lawmakers, given the task of inventorying all 245 exemptions during a three-year period, revisited that change Friday, three months after it took effect.
Sen. Jeanette White, D-Windham, a co-chair of the public records committee, made it clear Friday that the change itself wasn’t up for renegotiation; lawmakers simply wanted to hear testimony from stakeholders about how it’s worked thus far.
The answer, from the perspective of Valley News reporter Mark Davis, is not well.
The exemption, referred to as 317c5, had been a perennial sticking point for the public and the press trying to gain information from criminal investigations. Up until last legislative session, those records were off limits to the public, regardless of whether the investigation had been closed.
The Legislature peeled back those restrictions by adopting the federal Freedom of Information Act standard, which makes the records open unless the case is made that releasing them could harm an investigation or jeopardize the privacy of a witness or victim.
Davis put the law to test just two weeks after it was enacted, optimistic that he’d finally be able to clear up longstanding uncertainty about how police behaved during two violent incidents.
On June 20, 2012, an unarmed Thetford man, with a history of seizures was fatally shot with a Taser by a Vermont State Police trooper. A pending lawsuit filed by family members alleges police used excessive force. Attorney General William Sorrell investigated the matter but concluded there was no evidence of wrongdoing. Davis asked for records relating to that investigation.
Davis’ second request pertained to an incident at the Shady Lawn Motel in White River Junction in 2010. Dennis Kucera filed a lawsuit — also still pending — alleging that Hartford police unlawfully arrested him after an officer inflicted head injuries on his wife.
“We were encouraged when the new law was passed and we were encouraged by Attorney General Sorrell’s testimony before the Senate Judiciary Committee in which he said he supported releasing records of closed investigations of police misconduct and so we filed records requests, knowing that it happens,” Davis said.
The results of Davis’ request were far less fruitful than he’d hoped. Even under the revised law, he was told that a number of written documents, photographs, audio files, and video remained out of his reach legally.
“Those requests were both largely denied and we are still unable to explain to the public what happened in those instances and how the Attorney General’s Office reached the conclusion it did,” Davis said.
John Treadwell, head of the criminal division of the Attorney General’s Office, circulated a response to one of Davis’ request at Friday’s committee meeting. The rationale for withholding information comes from two of the exemptions that remain in c5, as well as three other exemptions, drawn from different parts of the law.
The Vermont American Civil Liberties Union’s executive director Allen Gilbert described this as a “whack-a-mole” phenomenon, particular to public records exemptions — once one loophole has been closed, agencies use others that serve the same purpose.
“The beauty of c5 was they didn’t have to think,” said Gilbert, who supported eliminating the categorical exemption.
Gilbert points to a handful of other exemptions that still impede public access to documents about police misconduct:
- C18 exempts records from the Department of Public Safety’s internal investigation office.
- C7 applies to “personal documents,” but, according to Gilbert, has “sometimes been mischaracterized as preventing disclosure of any records dealing with officer conduct investigation.”
- C14 exempts documents relevant to ongoing litigation. Gilbert described this as an “increasingly unusual” exemption that allows officials to file litigation to avoid disclosing the information.
Gilbert says he’ll push for lifting more exemptions when the Legislature reconvenes in January 2014.
Davis, who is leaving the Valley News to work for Seven Days, said he isn’t sure whether the newspaper will appeal the denial from Sorrell’s office.
The changes to c5 haven’t been easy from the point of view of the Attorney General’s Office, either. “We have identified a number of issues relating to the language,” Treadwell told lawmakers Friday.
Treadwell’s main complaint was the amount of time it has taken to comply with requests.
His office, which has received three requests under the new law, spent 50 hours on one from Davis, according to Treadwell.
Part of the problem, according to Treadwell, is criminal investigations often come with a large quantity of audio and video material. It’s costlier to redact information from DVDs and CDs than it is from paper documents, and Treadwell says they’d have to outsource that task. They were quoted a price of $130 per hour for audio, and for video, the price is steeper.
The Center for Public Integrity, an online investigative news outlet that rates states according to “corruption risk,” awarded Vermont a D+ for public access to information.
The public records committee, in addition to taking stock of the state’s large collection of exemptions, is also trying to keep a tighter lid on proposals for new exemptions. Rep. Donna Sweaney, D-Windsor, who serves on the study committee and also chairs the Government Operations Committee, said the latter had been designated the clearinghouse for any exemptions that crop up in legislation. With one committee in charge of reviewing new exemptions, she thinks they’ll be able to stem their proliferation. But committee members also expressed concern that exemptions will still get implanted in bills at the last minute, during the end-of-the-session legislative rush.
