[F]or almost a year, the Vermont Department of Corrections has argued it doesn’t have to publicly reveal if it had documents related to the removal of a prison superintendent who had been the subject of sexual harassment complaints.
That holdout will end next month following a ruling Thursday by Washington County Judge Mary Miles Teachout.
At the center of the dispute are documents related to the dismissal of Edward Adams as the superintendent of the Southern State Correctional Facility in Springfield in January, and his placement on administrative leave several months earlier. Adams is now a probation officer in Rutland.
Teachout wasted little time ruling Thursday following a roughly 30-minute hearing. She ordered that the corrections department must make public summary information about documents it has related to the removal of Adams from his post, and why they are being withheld from the public.
In fact, Teachout said that such a listing of documents — called a Vaughn index — should have been provided to VTDigger from the corrections department months earlier under the Vermont Public Records Act.
The judge gave the Department of Corrections until Aug. 30 to provide a Vaughn index to the court and the news organization, which may make them public.
The Vaughn index is meant to provide a general description of each record withheld as well as what exemption applies to keep it from being released under the public records act.
After that index is provided, Teachout said, the case will move forward to determine whether the withheld records should be made public or remain confidential. “At that point,” the judge said, “we’ll know what the scope is.”
The Department of Corrections had argued that it didn’t need to provide such an index, or even information related to whether documents about Adams exist, at this stage of the case.
Assistant Vermont Attorney General Jared Bianchi, representing the corrections department, had filed a motion asking for a “protective order” to keep any information in a Vaughn index secret if the department were required to file it with the court.
“That request is denied. What the defendant can do here and is required to do is to file a Vaughn index that will be public,” Teachout said in issuing her ruling from the bench. “This is the normal procedure in these kinds of cases.”
The index, the judge added, does not reveal any of the “substantive” information in a document, but gives “guidance” to those seeking the release of that record whether they want to continue to pursue it.
Stephen Coteus, an attorney at the law firm Tarrant, Gillies & Richardson of Montpelier, is representing the Vermont Journalism Trust, the parent organization of VTDigger.
He has argued that without knowing what type of records exist, and the exemptions cited by the state barring their release, his hands were tied in making legal arguments regarding whether they should be public.
Judge Teachout said the index was required to be provided under the Vermont Public Records Act in September when the corrections commissioner, then Lisa Menard who has since stepped down, rejected a public records appeal brought by VTDigger.
Teachout called it the “traditional” process in a public records matter.
Bianchi, representing the Department of Corrections at the hearing Thursday, asked for 45 days to provide the court and VTDigger with the index.
Coteus told the judge he would prefer to have the documents “as soon as possible, adding: “The defendants have had these documents for a very, very long time, and certainly known about this request for a long time.”
The judge then set the Aug. 30 deadline for the index to be provided to VTDigger and the court.
Bianchi said after the hearing he had no comment, referring questions to his arguments made in the courtroom.
Coteus, speaking after the hearing, said Teachout’s view of the Vermont Public Records Act requiring the disclosure of a Vaughn index as part of the records denial would have implications on future cases.
“What the law does is describe, in its essence, what a Vaughn index is,” he said. “It does not use the words Vaughn index, but it doesn’t need to.”
He added of the judge’s decision, “It would be nice if that made its way into a published opinion.”
Anne Galloway, VTDigger’s founder and editor, said following the hearing that she was “gratified” that the judge sided “squarely” with Vermont’s Public Records Act.
“We look forward to getting a Vaughn index, which will simply describe what documents exist, so that we can continue to understand why the head of the Southern State Correctional Facility went on administrative leave,” Galloway added. “We believe the public has a right to know what happened.”
VTDigger has argued in court filings that records related to the dismissal of Adams, who had faced allegation of sexual harassment from 2015, are in the public interest and should be released.
Adams was removed from his post as superintendent at the Springfield prison in January 2019, according to VTDigger’s lawsuit, and transferred to a position as a probation officer in Rutland.
A sexual harassment complaint had been filed against Adams and the DOC by a female correctional officer when he served as the superintendent of the Chittenden Regional Correctional Facility between June 2014 and January 2016, the Burlington Free Press reported in October.
Also, around the time Adams was removed as the superintendent of the Springfield prison, VTDigger received anonymous tips of a hostile work environment and sexual harassment at that facility.
VTDigger filed its lawsuit in March against the Vermont Department of Corrections seeking records related to Adams’ dismissal. Corrections officials have not cited a reason for Adams’ dismissal from that post.
During the hearing Thursday, the judge pressed Bianchi why a Vaughn index had not provided earlier to VTDigger.
Teachout cited sections from the Vermont Public Records Act that stated a “custodian” of records who withholds them from release needs to identify the documents being withheld, as well as state the exemption keeping them under wraps.
The judge said that information is traditionally provided in the form a Vaughn index.
Instead, the response to VTDigger from Menard, then-DOC commissioner, was a three-paragraph letter.
In that letter, the commissioner wrote, “the records you seek are personal documents relating to an individual, including information in any files maintained to hire, evaluate, promote, or discipline an employee; therefore, they are exempt from public disclosure.”
“Thus,” the commissioner added, “the denial of your public records request is upheld.”
The current corrections commissioner, Mike Touchette, declined a request by VTDigger to review Menard’s decision before the organization filed a lawsuit.
Bianchi, representing the corrections department, said at the hearing Thursday that due to the nature of VTDigger’s request, providing such an index would be tantamount to providing information related to the content of the documents.
“Our position would be that the existence of any responsive records is in and of itself protected information,” Bianchi said.
As an example, he said, if someone filed a public records request asking if a person had ever been to the Vermont State Hospital seeking mental health treatment, stating that there were records related to that request would essentially show that person had been at the facility.
Coteus, VTDigger’s attorney, countered that under such an example other medical confidentiality protections applied.
He then reiterated his contention, which the judge later agreed to, that the index should have been provided at the time Menard denied VTDigger’s records request.
“We’re closing in on a year from when these records were initially requested and the requestor still has no idea whether there are even records,” Coteus said during the hearing. “They have had to file this lawsuit simply to learn what records might exist.”
