[B]URLINGTON — The City of Burlington is pushing back against the public records lawsuit its police union filed against the city and police department seeking Officer Cory Campbell’s body camera footage from his altercation with Douglas Kilburn.
In a filing Monday, the city argued that under the Vermont Public Records Act it does not have to provide Campbell his body camera footage, footage of the incident from the University of Vermont Medical Center, Campbell’s report and the affidavit prepared in the incident.
The union filed suit April 23 requesting the information, with Campbell’s lawyer saying he did not want his client to be interviewed in the investigation without being able to view the footage.
Kilburn was found dead days after getting punched by Campbell in the ambulance bay at the University of Vermont Medical Center. Police say Kilburn punched Campbell in the face during a March 11 interaction, which led Campbell to punch Kilburn before subduing him.
Chief Medical Examiner Steven Shapiro ruled Kilburn’s manner of death homicide. Vermont State Police have been investigating the incident, and Attorney General TJ Donovan will determine whether charges are brought against Campbell.
While the Burlington Police Department allows officers to review body camera footage before speaking with investigators, the Vermont State Police does not.
Richard Cassidy, the lawyer for the police union and Campbell, argued in the complaint that the city could not prove that the exemptions it cited to the public records act were warranted.
Cassidy told VTDigger Wednesday that Campbell has not spoken with the state police as part of their investigation at his advice since the footage was not released.
“My advice would be, if the interrogator has information that they won’t share with you, then refuse to make a statement,” Cassidy said. “It’s an unfair advantage. He can look at what happened frame by frame, and know it in a way that no one’s memory would permit them to know.”
Assistant City Attorney Nicholas Lopez argued that the records are protected under the Vermont Public Records Act as they are related to the detection and investigation of a crime and would interfere with enforcement proceedings.
Lopez wrote that the case is “somewhat unique” as the city is the custodian of records that are central in the investigation of an outside entity, the Vermont State Police.
“As the City itself cannot evaluate the materiality of the Responsive Records to the criminal investigation or the effect that releasing such records would have on that investigation, the City must instead, rely upon the sworn statements of detectives involved with the ongoing criminal investigation,” Lopez wrote.
The response notes that Cassidy had requested a copy of video footage from the Vermont State Police before requesting records from the Burlington Police Department, and that the VSP denied the request stating that denial was necessary to “ensure the integrity of the criminal investigation.”
The two elements of the Public Records Act’s exemption for criminal investigations, cited by the city, are that the records must relate to the detection or investigation of a crime, and that they must be reasonably expected to interfere with enforcement proceedings.
Lopez cited the VSP’s decision to deny Cassidy’s request for the records as proof that releasing them would interfere with the state police’s investigation.
“Therefore, it is clear that the Responsive Records are not only related to an ongoing criminal investigation, but they are integral pieces of evidence being investigated by the Vermont State Police,” Lopez wrote.
Lopez cited an affidavit included in the filing written by VSP Sgt. Angela Baker to argue that the release of the records would be reasonably expected to interfere with the enforcement proceedings.
In the affidavit, Baker stated that the release of the records would interfere with the VSP’s efforts to “collect untarnished evidence” in its investigation.
“Permitting witnesses or targets of an investigation to review evidence such as videos prior to their interview could alter the witness’ testimony,” Baker wrote. “Such alterations could occur unintentionally, as videos often show a different perspective than viewed by a witness at the time of the actual event.”
Lopez concluded by writing that the records Cassidy sought “fall squarely” within the criminal investigation exemption.
“Although the purpose of the Public Records Act is to provide open access to public records, the legislature and Supreme Court have clearly identified certain criminal investigatory records as so confidential or integral to criminal investigations that they should be exempt from public disclosure,” Lopez wrote.
Cassidy told VTDigger he did not think the city’s filing fulfilled the 2013 revision to the public records law, which required agencies to show how the disclosure of the information would interfere with the investigation.
“Nothing that they cite in their brief is a specific fact, it’s just that it’s going to to interfere with an enforcement proceeding,” Cassidy said.
In his initial complaint, Cassidy wrote that the 2013 revision brought higher standards to the exemption, which he argued the city does not meet.
“These revisions emphasize that the Vermont Legislature intended the exemptions to be narrowed to just what is necessary to ensure that law enforcement maintains the secrecy of its investigations when such secrecy is necessary,” Cassidy wrote. “These revisions put the burden squarely on the denying agency to show that requested disclosures will reveal ongoing — but otherwise secret — law enforcement activities.”
In the complaint, Cassidy wrote that Police Chief Brandon del Pozo’s denial of his public records appeal did not cite specific facts which supported the city’s contention that letting Campbell view records he created following his arrest of Kilburn would interfere with the enforcement proceedings.
“There is nothing in either denial by which this Court can evaluate whether or not disclosure will interfere with ongoing law enforcement proceedings,” Cassidy wrote. “The only tangible basis for the denial is VSP involvement. That, alone, does not result in the conclusion that producing Mr. Kilburn’s arrest records will ‘interfere with enforcement proceedings.’”
Cassidy argued that producing the records to public would allow Campbell to “have a more clear recollection” of what happened and allow him to testify more accurately.
“This is quite frankly the opposite of ‘interfer[ing]’ with a law enforcement proceeding — it is aiding it by allowing Officer Campbell to avoid lapses of memory, misstatements, and other unintentional and non-criminal statement which may cause a waste of law enforcement and judicial resources,” Cassidy wrote.
While much of the information in Baker’s affidavit about the case is already publicly known, Baker did reveal that Kilburn was released from the UVMCC at approximately 4:20 p.m. the day after the incident.
Police conducted a wellness check at the request of Kilburn’s wife, Cheryl, and found him deceased at 2:02 p.m. March 14. Kilburn had been visiting his wife in the hospital on the day of his altercation with Campbell.
The state police obtained the body camera footage from three officers who responded to the incident; Campbell’s use of force report; Cpl. William Drinkwine’s charging affidavit for Kilburn; surveillance footage from the ambulance bay at UVM Medical Center; and the UVM Medical Center Security Services Incident Report.
The filing also includes an affidavit from del Pozo, who wrote that the department has had no involvement with the state’s ongoing investigation and that the department had no knowledge about the status of the investigation or the materiality of the records provided to the state.
“As a result, the Burlington Police Department must rely upon the representations of the Vermont State Police relating to the materiality of the records provided to the State and the effect that releasing such records will have on their criminal investigation,” del Pozo wrote.
