Editor’s note: This story was written by Cindy Ellen Hill, a law and policy writer and attorney in Middlebury.
In a blow to transparency and public accountability, the Vermont Supreme Court has ruled that police criminal investigation files meeting an exemption to the Public Records Act are unavailable to the public forever. The Vermont constitutional provision stating that government officials are at all times legally accountable to the public is merely a “philosophical vision,” Justice Marilyn Skogland wrote for the majority, and does not require public disclosure of law enforcement agency investigation documents even in the presence of a strong countervailing public interest. The decision comes only weeks after the Vermont Supreme Court’s decision in Bain v. Clark appeared to support a more expansive view of public access to police records.
In January 2011, the Vermont State Police launched an investigation into potential criminal activity related to possession of child pornography by Criminal Justice Training Council personnel at the Vermont Police Academy. The investigation arose after state police received information from the Vermont Department of Human Services about inappropriate material on academy employees’ computers. The investigation targeted David McMullen, training coordinator for Homeland Security at the academy. After police seized his home computer, McMullen committed suicide.
State police continued their investigation, including conducting an inquest regarding McMullen’s death. When the investigation was completed, Attorney General William Sorrell declined to prosecute any police academy personnel on the grounds that there was insufficient evidence of criminal conduct. The Rutland Herald sought the state police files after the investigation was closed. By its decision of March 30 in Herald v. Vermont State Police and Office of the Attorney General, the Vermont Supreme Court upheld a Rutland Superior Court decision denying access to the documents.
“In this case you have police agency investigation of someone associated with a police agency, with no way for the public to evaluate whether it was done fairly or with favoritism,” says Attorney Bob Hemley of Gravel and Shea, legal counsel for the Rutland Herald. “As a matter of policy it’s critically important for the public to know which investigations have led to charges and which have not, and when people are exonerated, especially when they are people in some position of power, are they being dealt with as objectively as possible.”
The Vaughn Index
The Vermont Public Records Act requires record custodians to either produce requested documents or identify any documents the record-holder asserts are exempt from production within three business days of receiving a public records request. The list of documents being withheld is called a Vaughn Index, named after a 1973 federal Freedom of Information Act case that required public record holders to spell out which exemption they claimed was specifically applicable to each document, so that the public could evaluate and appeal any improperly asserted exemptions.
In the Herald case, the Vermont Supreme Court noted that despite the clear statutory language, “[w]e do not believe that a Vaughn index is necessary, or would even be helpful, where the records fall under a categorical exclusion.”
In response to the Herald’s argument that the Legislature could not have intended for criminal investigation records to be kept secret forever, the court stated, “Policy arguments such as these are for the Legislature and not this Court.”
Calling this determination “one of the most troubling aspects of this case,” Hemley states that the inability to view a listing of agency documents deprives the person making the public records request the ability to challenge the exemption of individual items. “You are really in the dark as to what analysis is being applied,” he says. “So what’s left is this sort of ‘trust me’ approach.”
Failure of state police to identify the documents in their possession placed the Herald at a notable disadvantage in pursuing potential alternative processes for requesting the inquest records. “The majority faults us for not specifically requesting the inquest records, but until Justice Dooley wrote [in a dissenting opinion] that the inquest was in Rutland, we had no idea where it even was,” Hemley says.
Three decisions
While the Vermont Supreme Court rarely rules on public records matters, a series of three cases on access to police records was heard by the court in 2011. The Herald case is the second decision to be issued. In the first case, Bain v. Clark, the court stated that not all records generated by police comprise “records dealing with the detection and investigation of crime” that would meet the public records exemption found at 1 VSA §317(c)(5). Justice Denise Johnson, writing the majority opinion in Bain, indicated that the police agency, and any reviewing court, should determine whether police records met the purposes underlying the statutory exemption before ruling that they should not be released to the public. According to the court’s majority opinion in Bain, that evaluation includes a balance of competing public interests, and consideration of whether the documents might endanger the state’s position in criminal prosecutions, reveal the names of informants, intimidate potential witnesses, or have other negative effects on the criminal investigation process.
In the Herald case, however, the majority opinion states that “[t]here is no balancing process involved in the implementation of §317(c)(5).” In response to the Herald’s argument that the Legislature could not have intended for criminal investigation records to be kept secret forever, the court stated, “Policy arguments such as these are for the Legislature and not this Court.”
Documents falling into other Public Records Act exemptions “may nonetheless be accessible to the public where the interest in supervision of the government outweighs the privacy interest of the data subject,” says Dan Barrett, a Vermont ACLU staff attorney. “The Herald decision seems to hold that information falling into the police records exemption cannot be pulled back out, no matter how strong the public interest in oversight.”
The full impact of the Herald decision will not be apparent until the Vermont Supreme Court rules in the case of Galloway v. Town of Hartford, Barrett says. The Vermont ACLU argued that case on behalf of Anne Galloway, founding editor of VTDigger, on Dec. 6. Galloway sought records of the Hartford police department relative to its response to a report of a possible burglary in May 2010. The incident revealed no burglary and no arrests were made, but the black homeowner was beaten, sprayed with pepper spray and handcuffed by police before being released for medical treatment. The town has asserted that all documents pertaining to the incident meet the criminal investigation public records exemption. A decision in that case is anticipated by the end of this year.