The Vermont Department of Corrections, despite an order from a judge, isn’t revealing much about the documents it’s withholding from VTDigger related to the removal of a prison superintendent who had been the subject of sexual harassment complaints.
The information that was provided does, however, confirm records exist, which the corrections department has previously refused to do in response to public records requests and a later lawsuit regarding the dismissal of Edward Adams as superintendent of the Springfield prison.
VTDigger in its pending lawsuit is seeking records related to Adams’ removal as superintendent of the Southern State Correctional Facility in January, and his placement on administrative leave several months earlier. Adams is now a probation officer.
A sexual harassment complaint had previously been brought against Adams and the DOC by a female correctional officer.
That complaint was filed when he served as the superintendent of the Chittenden Regional Correctional Facility, between June 2014 and January 2016, the Burlington Free Press reported last year.
VTDigger, as part of its pending case, is now calling on Judge Timothy Tomasi to “compel” the corrections department to provide a more complete index of withheld records than the one submitted that referred to document types simply as “document,” “email,” and “correspondence.”
And, in spaces set aside for descriptions of those records, which is a requirement of the index ordered by the judge, little else is revealed.
For example, one stated, “12-19-18 agreement,” another stated, “9-4-18 emails between DOC employees and DOC supervisor,” and another stated,”9-21-18 report.”
Next to each entry are the exemptions to the Vermont Public Records Act cited by the corrections department keeping the documents from being released.
Without knowing more about what types of documents are being withheld, the news organization can’t determine, or make arguments, over whether the exemptions cited to the Vermont Public Records Act apply, according to a filing by VTDigger.
“The thrust of Plaintiff’s motion to compel is that neither the Court nor Plaintiff can evaluate the merits based on the factual information provided thus far by Defendants,” wrote Stephen Coteus a lawyer representing the Vermont Journalism Trust, the parent organization of VTDigger.
Coteus, an attorney at the law firm Tarrant, Gillies & Richardson of Montpelier, is asking the judge to order the state DOC to provide “a sufficiently detailed Vaughn index.”
A Vaughn index provides a general description of each record withheld as well as what exemption applies for keeping it from being released under the public records act.
Judge Mary Miles Teachout, who had been presiding in the case in Washington County Superior civil court before a statewide rotation of judges, did order this summer that the state DOC provide a Vaughn index.
Teachout, in a ruling from the bench following a hearing, said that such an index should have been provided to VTDigger from the corrections department months earlier under the Vermont Public Records Act.
At that hearing, the corrections department argued that it didn’t need to provide such an index, or even information related to whether documents about Adams exist.
The Vermont Attorney General’s Office is representing the corrections department in the lawsuit.
“We complied with the Court’s order and provided the Vaughn Index,” Charity Clark, the attorney general’s chief of staff, responded Tuesday in an email.
“The additional information requested by VTDigger is from a personnel file and is exempt from the requirements of the Vermont Public Records Act under more than one section,” Clark added. “We await the Court’s decision.”
Coteus said exactly what details a Vaughn index must include is not set in stone.
“The tricky part is that a Vaughn index may differ in form and content depending on the case, but it has to meet its purpose,” the attorney said.
“The purpose of the Vaughn index,” Coteus added, “is to provide the other side, who has not seen the records at all, with enough information so they can actually make arguments about whether an exemption applies or not.”
He said that the index provided in this case doesn’t specify the author and recipient, or specify the nature or subject matter of the document. “And that’s pretty standard protocol in a Vaughn index,” Coteus said.
The index provided to the court listed 20 different document types, totalling 47 pages.
A frequent exemption cited in the index to the Vermont Public Records Act deals with “documents relating to an individual, including information in any files maintained to hire, evaluate, promote, or discipline any employee” of a public agency.
Assistant Attorney General Jared Bianchi, who is representing the corrections department, has submitted a filing arguing that the index that has been filed is good enough.
“Plaintiff, having received a Vaughn index now seeks even further disclosure,” Bianchi wrote. “Plaintiff attempt to execute the statutorily enshrined privacy rights of state employees through a ‘death by one thousand cuts’ approach should be rejected.”
Instead, Bianchi wrote, after rejecting VTDigger’s motion to compel, the judge should allow the case to proceed to a summary judgment phase.
“The Court should have full insight into the facts and legal issues before requiring irreversible disclosure of confidential information,” Bianchi wrote. “Summary judgment process will allow the Department to explain its rationale publicly, and to attach appropriate affidavits and exhibits.”
He added, “Plaintiff will then have the opportunity to attack the Department’s submission as insufficient or legally flawed, or to frame some argument for greater disclosure before responding.”
Coteus, representing VTDigger, replied in a filing that if the corrections department can supply additional information later, they can provide it as part of the index.
“Defendants provide no reason why they can publicly produce additional factual information and explanation upon the filing of their summary judgment motion but should be protected from producing that same information now,” Coteus wrote. “There is none.”
The news organization argued in its lawsuit filed in January that the documents related to Adams’ dismissal are in the public interest and should be released.
“The records requested by VTDigger,” the lawsuit stated, “are relevant to the public’s significant interest in learning about the operations of a State-owned correctional facility, being able to scrutinize the work-related conduct of public employees and any investigation of such conduct.”
It’s unclear if Judge Tomasi will hold a hearing on the index dispute, or issue a ruling based on the filings.
