In a unanimous voice vote, the Vermont House pushed the state’s open records law one step closer to the federal open records model established by the decades-old Freedom of Information Act (FOIA).
The legislation, S.148, applies only to “records dealing with the detection and investigation of crime,” typically held by law enforcement officials.
Historically, these files have been off-limits to the public in Vermont, which has angered transparency advocates and those seeking more oversight of police.
Now these records, which track the ins and outs of criminal investigations, including when police misconduct is under question, are presumed open unless the state can prove that one of six exemptions apply.
Those six exemptions are designed to protect personal privacy, the right to a fair trial and confidential informants, among other things. The exceptions are based on the federal government’s 1966 standard for handling the same type of records.
The Senate approved a slightly different bill, 29-0, in mid-March. A conference committee may be needed to reconcile the chief area of contention, which is whether the names of victims or witnesses to crimes should remain secret, as provided in a version backed by the Senate Judiciary Committee.
Advocates such as Allen Gilbert, director of the Vermont American Civil Liberties Union, fear that privacy provisions specific to Vermont could be either unnecessary or too sweeping. In the latter instance, agencies might use it as an excuse to withhold records that should be public.
Judiciary Chair Sen. Dick Sears, D-Bennington, wants to protect witnesses and victims swept up in a criminal investigation from unwanted publicity.
The House Judiciary Committee voted the bill onto the floor Friday. Its version includes intent language that also clarifies the protection of the identities of victims and witnesses, but it clarifies that courts interpreting the legislation should be guided by federal case law. The House also tried to ensure that new, unintended withholding of records wouldn’t be a byproduct of the Senate’s language, according to Gilbert.
“While time is getting tight, it’s still possible the bill will pass this session,” wrote Gilbert in an email.
Gov. Peter Shumlin is expected to sign such legislation, having backed it at a news conference in January.
Rep. Maxine Grad, D-Moretown, Judiciary vice chair, amended the legislation on the floor Wednesday, and opened traditionally secret grand jury proceedings to public scrutiny. Grand juries are sometimes convened to decide whether to indict people in criminal proceedings, and are often used in cases of police misconduct, Grad said.
Attorney General Bill Sorrell supports the move, she said. An earlier investigation of Sorrell’s oversight of police misconduct by VTDigger showed that three state grand juries have been convened since 1997, when Sorrell took office, out of 28 police deadly force incidents.
If the bill becomes law, Vermont will join 21 other states, Washington, D.C., and federal agencies in adopting this standard of open records for criminal investigations, Gilbert said.
CLARIFICATION: The House and the Senate included language in the bill to protect witnesses and victims. The original version of this story did not make that information clear.
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