Vermont’s Department of Corrections is blocking efforts by VTDigger to find out what’s going on inside the state’s only prison for women, and how inmates there are being treated.
Family and friends of inmates at the Chittenden Regional Correctional Facility in South Burlington have told VTDigger about prisoner complaints regarding living conditions, health care treatment and access to advocates and lawyers.
VTDigger is currently seeking all grievance reports, complaints and lawsuits filed by prisoners against the facility over the past year, in an effort to both confirm second-hand reports and allow for public scrutiny of conditions in the facility.
In addition to inmate friends and family, lawmakers have said they are hearing the same complaints coming out of Chittenden Regional.
Rep. Marybeth Redmond, D-Essex, helped organize a meeting between inmates and legislators last week. She said the group heard about poor access to medical care, frustration over food quality, restrictions on recreation time and limited training programs to prepare prisoners for release.
“The Women’s Caucus and the Vermont Commission on Women jointly have taken women’s incarceration and conditions and treatment of inmates…as a very high priority over the next two years,” she said.
Attempts to obtain and review inmate grievance records and complaints from the Department of Corrections have been met with a blanket denial. Officials maintain releasing them would violate prisoner privacy and possibly compromise security.
“These documents are part of an inmate’s record,” David Turner, the department’s public records officer, wrote in a rejection letter on Feb. 25. “Inmate records are designated confidential pursuant to 28 VSA 107 b and DOC Directive 254.01 and are not subject to public disclosure.”
Turner said the department would release records related to 46 lawsuits over the past year, provided the news organization pays an estimated cost of up to $513 to “review, copy and produce” them. He cautioned that some of those lawsuits may still be pending and subject to “relevant to litigation” exemption from release.
VTDigger has also filed a request for all grievances at an out-of-state facility run by the private contractor CoreCivic in Mississippi, where about 250 of Vermont’s highest risk offenders are being held. That request was also denied outright, citing the same statute and directive.
Freedom of information advocates say it’s not new that the department is making it difficult to obtain public records, but they are concerned that citing a new statute to justify the denial could set a worrying precedent. The current inmate records law was passed in 2016 and tweaked in 2017 and 2018.
“The last few years seems to be a step backward and away from the expressed purpose of the Public Records Act,” said Robert Appel, a civil rights and defense attorney based in Burlington.
“It would seem to me that this was done at the initiative of the department to give it more insulation from public scrutiny,” he added.
Mike Donoghue, a freelance crime journalist in Vermont and executive director of the Vermont Press Association, called the state’s stance “preposterous.”
“Clearly this is one of those times that transparency is needed for taxpayers,” he wrote in an email. “What is Vermont Corrections afraid of?”
Officials at Vermont’s Department of Corrections and Office of the Defender General, which includes the Prisoners’ Rights Office, defended the blanket denial of inmate records, citing the need to keep sensitive personal information private.
Public records responses often balance public and private interests. Typically, private information, such as names and Social Security numbers, are redacted, and the rest of the document is released.
The American Civil Liberties Union of Vermont said the state seems to have failed to meet its obligation to weigh the public interest in inmate records.
“It’s certainly difficult for the public to know what Corrections is doing or not doing if all inmate records such as grievances are not reviewable,” said Jay Diaz, a staff attorney at the ACLU.
Diaz said the privacy of inmates can be protected while also releasing records.
“I don’t think anyone’s asking that any identifying information be made public,” he said, “but the topics of complaints or types of complaints, that’s all relevant and the public can glean a lot of information from being able to look at those.”
Vermont’s Public Records Act exempts records that are explicitly deemed confidential in other laws, meaning it does not apply to inmate records, which are classified as confidential in a separate state statute. However, the statute relating to inmate records — 28 VSA 107 — directs the corrections commissioner to develop rules that allow for the release of some records.
It specifically instructs the commissioner to draft rules that weigh the public interest in releasing records, while still redacting information “that may compromise the safety of any person, or that is required by law to be redacted.”
Those rules have already been drafted and are set to be finalized in August, pending approval by the Legislative Committee on Administrative Rules.
Appel said the rules fail to do what the law says they should, which is define a process that will make records publicly available in the spirit of the Public Records Act.
According to the statute approved last year, the rules must “provide for disclosure of a category or type of record … when the public interest served by disclosure outweighs the privacy, security, or other interest in keeping the record confidential.”
It also says certain categories should be made available.
In the resulting rules, however, the only records that would be public would be the inmate’s “public use file.” That includes basic information like an inmate’s name, age, parole officer, release date, legal status and sentencing history. It does not include grievances filed by inmates.
“Given that the rule is silent as to public access,” Appel said, “it does not appear that these rules comport with the legislative intent in passing 28 VSA § 107 (b)(5).”
Legislators involved in drafting recent changes to the inmates records law said their work was geared toward clarifying what files would be available to inmates from their own case files, as opposed to what would be available to the broader public.
Sen. Joe Benning, R-Caledonia, who sponsored last year’s bill, S.179, altering the inmate records act, said he would need to look further into particular requests before rendering judgment on whether records should have been released.
The inmate records act flips the logic around releasing records. Whereas the public records act says documents should be released unless they are exempted, the inmate records law says they should be kept confidential unless there is relevant exemption to release them.
But Benning said the law was intended to allow the release of some records in the public interest. “I don’t read the language of the ‘as enacted’ bill as a carte blanche opportunity to deny records,” he said.
Sen. Dick Sears, D-Bennington, sponsored the 2016 bill, S.116, that laid the foundation for the current inmate records statute. He said the intent was to provide greater privacy for some items, like medical records, and to reduce the burden of redactions on the Department of Corrections.
But he also said the law was not meant to justify blanket denials of inmate records. “My only comment is I’m concerned that it’s not working the way it was intended,” Sears said. “I’d prefer to have that issue debated in a committee again.”
Corrections officials also pointed to a 30-year-old directive, 254.10, that sets out the limitations of public access to inmate records.
That directive says: “Any party including representatives of the media may be provided information in existing electronic format so long as the information can not identify a specific offender or victim or their home/work addresses or telephone numbers unless written consent of the offender or victim is obtained in advance of access.”
However, Mike Touchette, the corrections commissioner, said he does not believe the directive covers the type of broad request made by VTDigger.
“Directive 254.10 provides limits on access to inmate case files, and does not specifically allow for the type of request as presented, which I understand was a broad, generalized request for grievances,” he said.
Responding to emailed questions about the department’s denial, Touchette offered to provide a de-identified “snapshot of the types and categories of grievances filed within a specific timeframe, if that information would be helpful.”
VTDigger did not agree to that offer, and intends to appeal the denial to obtain the full records. That appeal will be considered by Touchette as commissioner.
Emily Carr, the department’s general counsel, noted that VTDigger criminal justice reporter Alan Keays had been asked to narrow his request for a year’s worth of records from the Chittenden County and Mississippi facilities, but did not explain how that reduction would change the rationale for the department’s denial.
“There are confidentiality reasons for not producing offender grievances,” Carr wrote in an email, “including the containment of personal health information, security information, information related to other offenders and other sensitive information.”
She did not respond to the question of why redaction was not considered.
Al Gobeille, secretary of the Agency of Human Services, which oversees Corrections, said redactions of inmate records may end up being overly burdensome, and provide little information.
“There’s just an awesome responsibility having grievances where somebody may be grieving against somebody that’s in a power position over them, a fellow inmate, you know, or something,” he said.
If corrections officials did redact all sensitive information, he said: “You may think we’re just being disingenuous and we’re giving you a, you know, an ad lib where all the real information is black with a black marker.”
The Vermont Defender General’s Office, which represents hundreds of the state’s inmates, often criticizes the Department of Corrections over prison conditions and other matters. But on the issue of public access to inmate records, the agencies agree.
“Think of it as trying to get your tax records,” said Emily Tredeau, a staff attorney for the defender general’s office. “Grievances are about things like medical issues, they cover pretty intimate aspects of people’s lives.”
Asked whether redacting identifying information would address that concern, she said: “Vermont is so small that if you know someone and their grievance on a particular issue in a certain month, you would know who they are.”
The Defender General’s Office said the only time it’s attorneys have trouble getting inmate records is after an inmate dies, when the department’s concern over legal liability factors into their decisions.
Appel, Vermont’s former defender general, said the burden of redacting records should not prevent departments from fulfilling their obligations under the Public Records Act and the state’s Constitution.
“I understand it’s cumbersome, but sometimes democracy’s cumbersome,” he said.
Donoghue, the journalist and First Amendment advocate, said the department’s interpretation of the new statute seemed designed to intentionally shield its work from public scrutiny.
“The response by the Vermont Corrections Department appears to be saying it does not want anybody looking over its shoulder as to the operation of prisons or for contracts that the department officials have entered into on behalf of all Vermont taxpayers concerning inmates,” he said in an email.
Donoghue noted that the statute on inmates records includes a clause that gives the state discretion to release information: “When the public interest served by disclosure of a record outweighs the privacy, security, or other interest in keeping the record confidential.”
“That is the case here,” Donoghue wrote.
Turner’s denial of VTDigger’s requests does not indicate that any test was done to consider the public interest of releasing the records in question.
Gobeille, the human services secretary, said he was open to discussing how the department can balance the competing interests of privacy, protection and transparency.
“I don’t like not being transparent. It’s always against my nature, but I also know that we have a tremendous requirement to protect people.” Gobeille said.
“It’s not good for us,” he said of blocking access to records, “meaning it makes us look like we’re keeping something confidential to protect ourselves and not trying to do it to protect either employees or people that we serve.”
