[B]URLINGTON — Neither the City of Burlington nor the Department of Health have released the autopsy of the Burlington man who died days after a physical altercation with a Burlington police officer.
Douglas Kilburn, 54, was found dead March 14, days after being punched by Burlington Police Officer Cory Campbell in an altercation at the University of Vermont Medical Center. Campbell said that Kilburn had punched him first, and that he punched Kilburn in order to subdue him.
Chief Medical Examiner Stephen Shapiro ruled that the manner of Kilburn’s death was homicide, a finding that has been strongly contested by Burlington Police Chief Brandon del Pozo and Burlington Mayor Miro Weinberger.
Kilburn’s autopsy would provide significant insight into the injuries he suffered in his altercation with Campbell, how Shapiro reached his conclusion and in evaluating Weinberger and del Pozo’s concerns about Shapiro’s findings.
Since del Pozo sent the autopsy to Weinberger, assistant city attorney Justin St. James, Weinberger chief of staff Jordan Redell and deputy police chiefs Jon Murad and Jannine Wright, the autopsy was included in response to a public records request by VTDigger for communications between city and police department officials.
However, the autopsy was redacted by the city in both in its full form and when excerpts were included in other emails about the situation.
The city initially cited public record law exemptions to justify the redactions, including interference with the investigation of a crime and an exemption which states “a public agency shall not reveal information that could be used to facilitate the commission of a crime or the identity of a private individual who is a witness to or victim of a crime.”
Upon appeal, the city cited the exemptions for interference with the investigation of a crime, information that “could reasonably be expected to constitute an unwarranted invasion of personal privacy” and “personal documents relating to an individual.”
Weinberger said the autopsy has both private personal information in it and includes information that the state police do not want publicly disclosed until a charging decision in the case has been made.
Del Pozo, however, circulated the autopsy outside of official sources, sending it to Eric Miller, the attorney for the University of Vermont Medical Center. St. James was included on that email. Kilburn was treated at the Burlington hospital after the altercation.
“I am also sending it to the attorney for the UVMMC here, since I understand this to be a public document,” del Pozo wrote. “If I am wrong, please let me know.”
St. James did not respond to del Pozo’s email.
Weinberger said that del Pozo was referring to protections under the health care privacy law HIPAA.
“He was thinking about that level of protection, not the sort of public document protections that you and I have been talking about,” Weinberger said.
Michael Carrese, a spokesman for the UVMMC, also declined to provide the autopsy to VTDigger.
“The UVM Medical Center was not involved in creating this autopsy report and we do not think it is our place to release it,” he said. “We also have a responsibility to protect personal health information, which we take very seriously.”
Del Pozo also sent excerpts from the autopsy in emails to Jason Graham, the first deputy chief medical examiner in New York City’s Office of the Chief Medical Examiner, whose opinion del Pozo wanted.
The refusal to release the autopsy contrasts with past decisions. In March, the police department released the full autopsy of Conor Gage, the University of Vermont student who died from hypothermia and acute alcohol intoxication in February without any redactions after a request from VTDigger.
Olivia Lavecchia, Weinberger’s communications coordinator, said that Gage’s autopsy report was released because it was included in the case file after the investigation into his death was completed.
VTDigger also requested Kilburn’s autopsy from the Department of Health April 10, but the department rejected the request, citing HIPPA and exemptions from the public record law blocking the release of records which by law may only be disclosed to specifically designated persons.
The Department of Health also redacted portions of the autopsy included in a VTDigger records request for communications between Department of Health officials and the Burlington Police Department, citing the same exemptions.
However, not all agencies redacted the excerpt of the autopsy in del Pozo’s email to Vermont Health Commissioner Mark Levine. The Governor’s Office did not redact the excerpt in response to a records request from VTDigger for communications between the Governor’s Office and the Burlington Police Department or City of Burlington.
Weinberger said he wasn’t sure whether or not the full autopsy would become available, but he believes at least portions or the autopsy will become public after the decisions have been made whether charges will be filed.
“I have a strong understanding at least important details of the autopsy and medical examiner’s report that have been redacted by us and the Department of Health in the past, once the decision has been made and we’re further along in the legal process, I think that information will become public,” he said.
Redactions
The initial response from the City of Burlington to the VTDigger records request for communication between the city and police department for records regarding the death of Kilburn was heavily redacted.
Weinberger said that redactions are legal decisions made by the city attorney, and redactions to public records requests help the city govern effectively, protects taxpayers’ privacy concerns and information about negotiations which would hurt the city’s — and thus, its taxpayers — if it was publicly revealed.
VTDigger appealed the redactions to the Burlington Police Department, and the department released some of the previously redacted portions of records upon appeal after conferring with the city attorney’s office.
The appeal process produces different results for a range of reasons, Weinberger said. For example, the appeals process requires, a higher-level governmental official — the mayor, in the city’s case — to review the redactions.
The city also considers arguments made by those appealing, which could bring up points that might not have been fully considered in the initial redaction process, Weinberger said. The passage of time can also change the status of certain documents, he said.
Portions of the unredacted communications found by VTDigger raise questions about the city’s use of exemptions to the public records law, particularly the exemption which protects “records of interdepartmental and intradepartmental communications … to the extent that they cover other than primarily factual materials and are preliminary to any determination of policy or action.”
Weinberger said the deliberative privilege was necessary for the city government to operate effectively.
“We think to be a good city government, to be making good decisions on behalf of the people, we need to deliberate and debate issues, and our ability to do that would be hamstrung if everything needed to become immediately publicly produced,” he said.
The city used that redaction frequently, including to cover communications as basic as setting up times for phone calls.
For example, the city used the so-called “deliberative process” exemption to redact a portion of an email from city councilor Jack Hanson to del Pozo.
“I was wondering if you might have some time to connect on the phone today or tomorrow regarding the death of Douglas Kilburn,” Hanson wrote in the redacted portion. “I just wanted to get some information about what processes/procedures are underway in this case, and what protocols there are for similar situations.”
The city also used the deliberative process exemption to redact speculation from Lavecchia on whether VTDigger and Seven Days reporters had received an email Jason Gibbs, the governor’s chief of staff, had sent Redell along with the email del Pozo sent Levine April 17.
“We think they might have the Gibbs email too,” Lavecchia texted Redell and del Pozo.
Neither VTDigger nor Seven Days had the Gibbs email at the time, but both received the communications the next day in response to records requests with the Governor’s Office.
After Seven Days reporter Derek Brower asked Weinberger and Redell about their contacts with the Governor’s Office, Redell sent an email including her text messages to Gibbs, Weinberger and del Pozo.
These text messages were redacted under the deliberative process exemption, but unredacted on appeal. Redell wrote:
“Here are my texts to him:
Hi Jason – I have a very urgent and time sensitive issue to discuss. Can you talk by phone?
Just forwarded you an email. This is about ihe VSP release that just went out.”
The text messages from Redell to Gibbs were not included in the Governor’s Office response to VTDigger’s request for communications between the Governor’s Office and Burlington city and police officials.
Karen Pallas, the records officer for the governor, said that Gibbs’ texts were transitory records and were deleted “in accordance with the State’s general records schedule.”
She said the texts were classified as temporary administrative records and are set to be retained until they are obsolete and then destroyed .
“The messages were obsolete once we responded to the Mayor’s Office,” Pallas said.
The city also used the exemption for attorney/client privilege frequently in the records as well.
For example, in its first response, the city asserted its attorney/client privilege to redact the phrase “to discuss our approach” in an email from an assistant city attorney to police officials in response to a public records request from Campbell’s lawyer.
What’s Next
A presentation from del Pozo on the department’s use of force policy and training is on the agenda for Monday’s City Council meeting.
The presentation follows the release of body camera footage earlier this month showing officers pushing and tackling black men who later sued the department alleging police brutality. The footage from the September incidents were not released until after the lawsuits were filed in May.
Weinberger said he thinks as part of the wider review of the police department’s policies there will likely be a discussion about the city’s policies for releasing information about incidents involving police use of force.
He said he thought the policies about when that information is released could be improved and made clearer.
“Some of what comes out of here may clarify the release of information in the future, instead of it having to be made up on a case-by-case basis,” he said. “I think we may emerge from this period of review with some clearer policies about the timing and milestones for the release of some of this information.”
