[T]he ACLU of Vermont has filed a public records lawsuit against the Burlington Police Department for refusing to release, free of charge, records of an arrest a Burlington resident witnessed in 2017.
The suit, which the ACLU filed in January, comes from an arrest that Burlington resident Reed Doyle witnessed on June 17, 2017.
Doyle was walking his dog near Roosevelt Park when he noticed Burlington police officers in a confrontation with a group of young adults. One, a juvenile, had been arrested for disorderly conduct before Doyle arrived. Others in the group were arguing with the police over the arrest. Doyle said he heard an officer threaten to pepper spray the group. An officer also allegedly pushed a boy, who already was backing away with his hands up. When the boy protested being pushed, he, too, was arrested for disorderly conduct.
Doyle approached the police officers immediately, and afterward filed a complaint of excessive use of force.
“The most important thing is, if what I believe I witnessed is true, and a police officer double-hand pushed a minor, he needs to be held accountable for it,” Doyle said.
The suit is the result of Doyle’s attempts to get more information about the arrest he witnessed, and centers on the refusal by Burlington police to release footage and other public records “in their entirety and free from charge,” in violation of Vermont’s Public Records Act.
Although the Vermont Public Records Act declares that “any person may inspect or copy any public record of a public agency,” disputes over access to public records are not uncommon in Vermont. There are 270 exemptions to the Vermont Public Records Act that hinder access to public records, the ACLU says.
“We’ve heard numerous complaints from Burlington residents and Vermont media outlets, and based on our own experiences seeking records from Burlington, it seems as a matter of policy that they (the Burlington Police Department) refuse to allow for the free inspection of public records,” said Jay Diaz, a staff attorney with the ACLU.
“What Mr. Doyle says he saw is young children of color protesting a police action against one of their friends in a public place, and that implicates a kind of racial policing against the protection of free speech in the First Amendment that can’t be taken lightly,” said Diaz.
Burlington Police Chief Brandon del Pozo said that the Burlington Police Department had “conducted an internal investigation into the allegations made by Mr. Doyle” but did not specify actions taken following the investigation.
Doyle requested a copy of the body camera footage from the incident. The Burlington Police Department denied access to the footage on the grounds that the case went to court diversion and therefore was exempt from public inspection. When Doyle requested a version of the video redacted to protect the identity of the minors and officers, he was told by Deputy Police Chief Janine Wright: “The State’s Attorney has stated, because of the statute (3 V.S.A. § 164), I cannot release any information. In regards to our electronic program and software, it will only allow me to blacken out the video and not a specific face.”
On Nov. 30, the ACLU filed an appeal on behalf of Doyle to del Pozo, requesting police release the relevant records. In its response to the appeal, Burlington police did agree to release a redacted version of the footage, but only if Doyle paid $220.50 as an initial fee for the cost of the redaction.
The ACLU claimed, in its suit on Doyle’s behalf, that the video from the body camera “is not subject to disclosure or subject to redaction because it is a record relating to management and direction of a law enforcement agency and/or a record reflecting the initial arrest of a person.”
The ACLU also took issue with the cost levied, saying “a public agency cannot charge a requestor a monetary fee for staff time associated with complying with a request to inspect public records.” The ACLU cited as precedent a 2011 case between the Vermont State Employees’ Association and two state agencies in which the Vermont Superior Court decided that: “the burden of inspection is part of the cost of government to be borne by the polity at large and not imposed upon organizations or individuals seeking information.”
In a statement issued Wednesday night in response to the ACLU’s lawsuit, the Burlington Police Department stood by its decision and said it was following the Uniform Schedule of Public Records Charges for State Agencies in deciding how much to charge for the labor required to redact the requested footage.
“The Burlington Police Department stands by both its commitment to transparency, and to the privacy of innocent people captured on police body camera, even if it invites litigation that seeks to use an expectation of the former to invade the latter,” it said.
The statement continued, “Affordable technology will hopefully develop that will lessen the time needed to properly prepare body camera footage for release. Until then, we will continue to abide by Vermont law in charging the preparation fees necessary to protect taxpayer interests in fulfilling labor-intensive requests for public information.”