Vermont Supreme Court ruling increases police accountability

­­Editor’s note: This story was written by Cindy Ellen Hill, a law and policy writer and attorney in Middlebury.

The Vermont Supreme Court chambers

The Vermont Supreme Court chambers

The Vermont Supreme Court ruled last week that records of police agencies, such as radio and dispatch unit logs, are not automatically exempt from disclosure even when law enforcement says the information is pertinent to an investigation.

In Bain v. Windham County Sheriff Keith Clark et al., the court reconfirmed that the strong public interest in disclosure of public records is “particularly acute in the area of law enforcement.”

Plaintiff Steven R. Bain, representing himself in the case before the Supreme Court, had been convicted of criminal charges in 2005 that led to his incarceration as a habitual offender. Bain has since engaged in unsuccessful appeals of his conviction as well as litigation pertaining to the issue of whether the search of his home in May 2003 was conducted illegally. It is in regards to this latter point that Bain requested, pursuant to Vermont public records law, copies of “any and all computer, telephone or otherwise generated radio dispatch unit log[s]” pertaining to his arrest. Receiving no response to his request, Bain filed an appeal.

The Windham Superior Court found in favor of Sheriff Clark, ruling that the records sought were exempt from disclosure under Vermont law because they met the criminal investigation exemption. The Vermont Supreme Court overturned that holding and remanded the matter to the Windham Superior Court, directing that court to evaluate whether the content of the records sought contain information which may actually interfere with criminal prosecutions, endanger witnesses or reveal names of informants.

Where compelling policy interests do not override the presumption that agency records are accessible to the public, the state Public Records Act must be construed “against the custodian of such records” with any doubts resolved “in favor of disclosure.”

Vermont’s public record law starts with a simple precept embodied in Article 6 of the state constitution: The power of the state government derives solely from the people of the state, and “therefore, all officers of the government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.” The State Public Records Act indicates an intent to fulfill this constitutional mandate, “Any person may inspect or copy any public record of a public agency…”. However, there are at least 206 exemptions to the Public Record Act, according to a January 2007 report by Legislative Council lawyer Michael J. O’Grady.

The criminal investigation exemption has been among the most nebulous of these exemptions, as “the statute gives little to no guidance as to what an investigation is, when it starts or when it ends,” according to a September 2011 white paper produced by the New England First Amendment Coalition, a project of the New England First Amendment Center at Northeastern University.

Few court cases in Vermont have addressed the investigative public records exemption. That white paper, “The Investigative Exemption to State Public Records Acts for Public Safety Documents,” was produced in response to a Vermont Superior Court denial of a public records request made by VTDigger editor Anne Galloway to the Hartford Police Department relative to the detention of an individual in May 2010.

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