Supreme Court continues consideration of public access to police records

The Vermont Supreme Court has continued its consideration of Public Records Act access to law enforcement agency documents in another case brought by the Rutland Herald.

The first Rutland Herald case arose from that newspaper’s attempt to obtain documents relative to an investigation of Vermont State Police Academy personnel allegedly viewing child pornography on workplace computers.

The Rutland Herald II case, Rutland Herald v. City of Rutland, involved the paper’s attempt to obtain documents relative to an investigation into whether Rutland City Police officers, as well as two public works employees, were viewing pornography on workplace computers. The decision highlights the difference between records of criminal and non-criminal internal investigations, as well as the difference between public access to records of municipal law enforcement and those of the state police.

Vermont Supreme Court Chief Justice Paul Reiber

Vermont Supreme Court Chief Justice Paul Reiber

In its April decision, the Vermont Supreme Court reiterated the earlier Rutland Herald ruling that documents from any police agency that pertain to a criminal investigation are forever exempt from access under the Public Records Act unless a criminal charge brings them into the public arena. The court then distinguished between records related to an employee disciplinary investigation involving criminal acts (such as possible possession of child pornography), which would be categorically exempt from public access, and records related to a non-criminal employee disciplinary matter (such as possible misuse of office computers by viewing otherwise lawful but workplace-inappropriate material). The latter would fall under a separate Public Records Act exemption dealing with personnel records, and be subject to a balancing test that weighs the subject’s privacy interests against public oversight benefits.

The Rutland Superior Court had evaluated the document request under this balancing test as employee disciplinary records rather than as records of a criminal investigation. The Superior Court had determined that the public interest in reviewing the actions of the Rutland City Police Department outweighed any minimal privacy interest city employees may have had in viewing pornography on publicly owned computers, and allowed public records access to the documents.

Justice Paul Reiber, writing for the Rutland Herald II majority, reversed the Superior Court’s ruling and remanded the case to the Rutland Superior Court for a determination as to whether the records requested had ever been part of an investigation into criminal actions. A Rutland Superior Court hearing on this question is scheduled for May 16, according to Attorney Robert Hemley of Gravel and Shea, who represents the Rutland Herald.

Several of the requested documents became public when former Rutland City Police Detective David Schauwecker was charged criminally with neglect of duty for viewing pornography while on the job. In July 2011, Schauwecker pleaded no contest to a single misdemeanor charge. The documents which remain at issue relate to at least one other employee of the Rutland Police Department who was investigated but not criminally charged. The Vermont ACLU, which did not participate in the Rutland Herald II case, expressed “cautious optimism” over the ruling, indicating that the Supreme Court sent a clear message that not all records maintained by a law enforcement agency are categorically exempt from public records access.

The Supreme Court decision notes that the balancing test applicable to non-criminal discipline investigation records would not be applicable to cases involving the Vermont State Police: The Vermont Legislature has categorically exempted from public records access all “records of the office of internal investigation of the department of public safety.” Municipal police and county sheriff’s department will need to subject non-criminal disciplinary investigation records to the public-interest balancing test under the ruling of Rutland Herald II, but similar internal review of state police is not subject to any public records access oversight whatsoever.

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  • Christian Noll

    I couldn’t help but notice that the author of this piece did not use the word “Transparency” once. It was just an observation.

    In Vermont, we actually have the “Reverse” of transparency.

    In Vermont “Public Records” actually go missing and private records go public.

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