The latest ruling in VTDigger.org’s legal battle over records tied to the removal of the leader of Vermont’s largest prison grants access to previously blocked material and deals a blow to an excuse used by the state to keep such information under wraps.
The Vermont Journalism Trust, VTDigger’s parent organization, has been seeking records explaining why Edward Adams, the former superintendent of Southern State Correctional Facility in Springfield who has previously been accused of sexual harassment, was dismissed.
Washington County Judge Timothy Tomasi found in his recent ruling that documents provided to the news organization from the state contained redactions that were “somewhat broader than necessary.” In some cases, complete pages were blacked out.
The judge, after reviewing the documents “in camera,” or outside the public eye, ordered the state to remove many of the redactions from the records and provide them to VTDigger.
Tomasi added that he would leave in place redactions dealing with personally identifiable information about whistleblowers and certain other parties.
The judge gave the state 14 days from the date of the ruling, Sept. 4, to make the changes in the redactions and provide them to VTDigger, or pursue other legal avenues.
“I think that is a win for transparency,” said Stephen Coteus, an attorney at the law firm Tarrant, Gillies & Richardson of Montpelier, and representing the news organization.
“The judge essentially agreed with Digger,” Coteus added, “that the broad redactions and the redactions of entire pages which Digger had challenged were not appropriate under the exemptions claimed by the state.”
Adams was placed on leave from his job as superintendent of the Southern State prison about two years ago, and shortly after VTDigger made its initial request to the state Department of Corrections for records related to complaints about him.
The state rejected that public records request, prompting the lawsuit from the news organization and continued efforts by the state to keep the documents hidden.
In March, the state released to VTDigger more than 100 documents, and the ongoing dispute had been reduced to eight pages of redacted material.
Adam has told VTDigger he does not oppose the release of the redacted material. In fact, he said, he believed the additional information would help show he didn’t do anything wrong.
The state Attorney General’s Office, representing the corrections department in the legal action, and VTDigger had filed competing motions over whether the redactions should stand.
“We appreciate that the Court understood the complexity of the issue and the need to balance the interest of public disclosure with a right to privacy for whistleblowers and other witnesses involved in an investigation,” the Attorney General’s Office stated Thursday in an email response for comment on the judge’s recent ruling.
In the decision, Tomasi did take a swipe at the Attorney’s General Office’s move to invoke a particular public records exemption during the case to keep some of the material from being publicly released.
That issue centered on whether an exemption to the Vermont Public Records Act extended to documents deemed by a “rule” confidential by the state Department of Human Resources. Tomasi struck down the state’s contention that such an exemption or even a rule existed.
“These are internal operating policies of the Department,” Tomasi wrote in his 10-page decision. “There is no indication that they were intended to operate as generally applicable exemptions under the PRA [Public Records Act].”
Lia Ernst, a staff attorney with the Vermont chapter of the American Civil Liberties Union, is not a party to the case but has litigated public records lawsuits in the state.
She said the decision specifies that a rule has various regulations that must be complied with to go into effect, such as notice, comments, and allowing interested parties to propose amendments.
“It is significant that the court is saying what a rule means under the Administrative Procedures Act, not just anything you claim is a rule,” she said.
The decision, Ernst said, specifically addresses records to the state Department of Human Resources.
“In the context of DHR records, DHR can’t point to its own policy as a rule in order to withhold records,” she said.
Ernst added that the “logic of the court ruling” would apply to other state department’s as well. “Granted this is a trial court’s opinion, but it’s a persuasive one,” Ernst said.
Tomasi wrote in his ruling that there was no evidence that a provision cited by the state as exemption went through the Vermont Administrative Procedures Act.
“The State’s interpretation,” Tomasi wrote, “effectively that ‘rule’ means whatever DHR says, ignores the significance of the statute’s use of a well-known term of art and would completely undermine the open scrutiny under VAPA to which any such rulemaking would be subject and through which possible impacts on the PRA could be fully vetted.”
Coteus, VTDigger’s attorney, said that portion of the judge’s ruling would likely continue to influence public records cases moving forward.
“Of course this is not the decision of the Vermont Supreme Court,” he said, “but the opinion of the sitting judge in Washington County where many public records cases are decided is very important.”
The material the judge ordered to be made public in his recent ruling would be the latest information VTDigger has obtained in bringing the lawsuit against the state.
After filing the legal action, the state turned over to the news organization records showing a secret agreement Adams reached in December 2018, just months after being placed on leave from the Springfield job.
The documents of the deal revealed Adams’ demotion from Springfield superintendent to a probation officer, though his rate of pay stayed almost the same at $45 an hour, or about $94,000 annually, much higher than a typical probation officer.
The reason behind that demotion was not revealed in the records.
The additional documents the state did make public in March revealed several investigations into Adams’ conduct. Those records outlined several claims by corrections employees about Adams, including that he spoke with a lisp when referring to a gay inmate and talked of getting “hard” when firing people.
Adams, in the filings, denied many of the allegations or, in some cases, reported that he did not remember making such statements.
Prior to his job as Springfield prison superintendent, Adams served as the head of the Chittenden Regional Correctional Facility in South Burlington, the state’s only women’s prison.
While there, a sexual harassment investigation into his conduct led to the state paying a $86,000 settlement to the female corrections officer making the complaint, according to a report from the Burlington Free Press.
Tomasi ended his recent ruling by stating that he will consider the matter of the state paying the attorney fees of the news organization in bringing the action following a “well supported claim” to be filed within 30 of receiving the documents.
Parties can seek attorney fees in a public records lawsuit if they have “substantially” prevailed.
Asked Thursday if he believed that VTDigger met that standard, Coteus replied, “Yes, I do.”
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