Donovan: Make records of criminal investigations presumptively public

Editor's note: This position statement is by TJ Donovan, the state's attorney for Chittenden County who is a candidate for attorney general in the Democratic primary.

Vermont Public Records law exempts from disclosure “records dealing with the detection and investigation of crime,” [1] permanently. The broad exemption prevents adequate public examination and understanding of criminal investigations.

The Legislature should reverse the presumption of secrecy to one of disclosure. Records of criminal investigations should be disclosed where there is no good, specific reason to keep them sealed. Public disclosure will help the public better understand the criminal justice system — a most basic function of government. Public disclosure will also protect against abuses by law enforcement.

We have good precedent. During the Watergate era, federal law contained a broad secrecy provision similar to Vermont’s. [2] When rampant abuses by the FBI and the Nixon administration during Watergate were uncovered, Congress acted decisively to make records of federal criminal investigations presumptively open. By a two-thirds margin and over a presidential veto, [3] Congress passed a provision in the Freedom of Information Act (FOIA) known as exemption 7 in 1974.

Exemption 7 requires disclosure unless there is a specific reason in a specific case to keep the records confidential. [4] Legitimate reasons for confidentiality [5] in a specific case are to protect: the integrity of the investigation, the rights of the accused, personal privacy, confidential sources or methods, and the safety of individuals, consistent with the ethical responsibilities of the prosecutor.

There will always remain a tension between disclosure and legitimate needs for secrecy of criminal investigations. Where an investigation is pending, prosecutors must first protect the integrity of the investigation. Where a trial is upcoming, prosecutors must protect the rights of the accused to a fair trial by jury on the admissible evidence. Admissible evidence rarely includes everything in a criminal investigation file, so full public disclosure must ordinarily await trial. In the opposite situation — where the prosecutor declines to bring charges — prosecutors must protect persons who will never be formally accused from unfair publicity over evidence that will never be tested in court.

The enactment of a Vermont equivalent of FOIA exemption 7 will not end the debate over specific records of criminal investigations. Instead, such an enactment will put the debate on a sounder footing, with a presumption favoring disclosure weighed against legitimate needs for confidentiality in a specific case. The burden then will be on prosecutors to justify specific reasons for withholding from the public records of criminal investigations. In the final analysis, the rule should be access absent harm.



[1] 1 V.S.A. §317(c)(5) exempts:
“records dealing with the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency; provided, however, that records relating to management and direction of a law enforcement agency; records reflecting the initial arrest of a person, including any ticket, citation, or complaint issued for a traffic violation, as that term is defined in 23 V.S.A. § 2302; and records reflecting the charge of a person shall be public.”

[2] Weisberg v. Dept. of Justice, 489 F.2d1195, 1202-1203 (D.C. Cir. 1973) (en banc),cert. denied, 416 U.S. 993 (1974).

[3] L.Ellsworth, “Amended Exemption 7 of the Freedom of Information Act,” 25 AmericanU. L. Rev. 37 (1975).

[4] Act of Nov.21, 1974, Pub. L. No 93-502, 88 Stat. 1561, amending,5 U.S.C. § 552 (1970).

[5] 5 U.S.C. § 552(b)(7) exempts from disclosure:
(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information
(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 private institution which furnished information on a confidential basis, and, in thecase of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,
(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or
(F) could reasonably be expected to endanger the life or physical safety of any individual.
(Emphasis added.)

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