Rutland Herald v. City
of Rutland, 2012 VT
26.
In the game of requesting public records there are two
interrelated rules.
Rule one is that it does not matter who you are when you ask
for documents.[1]
Rule two is that makes all the difference in the world who
you are asking.[2]
For proof of this second rule, I submit today’s case and its
predecessor
from a few weeks ago.
For those just joining us, the facts are straightforward and
sad. Certain members of the Rutland
police force were apparently using their office computers for more than just
detecting crime. A few officers were
viewing and storing pornography on their machines. All fun and games until, one officer began using
his city computer for storing and obtaining child pornography.
The Rutland Herald, the area’s paper of record, went after
the story and the documents involved. As
we learned last time, any of the documents in this case collected by the
Vermont State Police are exempt from public record disclosure because exemption
5 of 1 V.S.A. § 317(c) allows a public agency to keep private any and all
records dealing with the investigation or detection of a crime.
Since the State Police were investigating the incident as a
criminal matter with a strong likelihood of criminal prosecution to follow, the
SCOV ruled that the information collected and compiled by the State Police was
exempt and was rightfully withheld from the Herald’s public eye.
Today’s case, on the surface, seems like a re-do of the
State Police case. The Herald is asking for
many of the same documents from a law enforcement agency that is in the process
of conducting its own review.
But herein lies the difference and the distinction for the
SCOV. Exemption 5 is a law enforcement
exemption. That means it only protects
records compiled for the purpose of detecting a crime or as part of a criminal
investigation.
In this case, while the behavior is criminal, the
investigation may not be. If, for
example, the offender had been an employee of the Department of Education, the
Department could not claim exemption 5 to withhold any documents or records it might
compile as part of a disciplinary or office policy investigation.
So the question for the SCOV, and one not answered by the
trial court in its decision is whether the underlying Rutland City
investigation was criminal or disciplinary.
If it was the former, the records are exempt, but if the latter, then
the City is obliged to release.
The sole twist in this straightforward analysis is, as the
City notes, that Exemption 5 also exempts “disciplinary investigations” by the
police. The SCOV, however, addresses this
by looking at the whole of the statute, which makes clear that the exemption
does not apply to records concerning the “management and direction of a law
enforcement agency.”
In other words, the “disciplinary investigation” portion of
the exemption only applies to mixed disciplinary/criminal investigations where
the disciplinary investigation was conducted for law enforcement purposes.
Pure disciplinary investigations conducted by the police into
its departments do not fall under Exemption 5 but go to the personal
information exemption (Exemption 7, for those of you playing at home). The analysis under Exemption 7 is more
nuanced than Exemption 5 with the court expected to look at the public’s
interest, the nature of the privacy interest, and the type of document. This formula tends to favor disclosure (see
below) but not
always.
Here the SCOV does not reach Exemption 7 because the trial
court did not make the threshold findings about the nature of the disciplinary
investigation, and the case is remanded to the trial court to determine if the
investigation was an Exemption 5 (criminal) investigation or an Exemption 7
(pure disciplinary) investigation.
As a parting twist to this analysis, the SCOV goes a little
further and opines upon the nature of the phrase “management and direction”
that applies in this case.
Notwithstanding the criminal nature of the investigation, the Public
Records Act favors disclosure of documents that, while part of a criminal
investigation, are the policy and oversight for the agency. In such cases, a document is not exempt from
disclosure if it was part of the documentation kept or managed by the police to
supervise its officers.
Confused? Join the
club. Part of the problem is that the
SCOV does not know whether the documents in this case fit this language, but it
is offering guidance to the trial court on remand.
Moreover, it is directing the trial court to consider
whether the documents sought to be exempted are part of the documents generated
by the City to review, supervise, discipline, and investigate its
employees. The SCOV cites to a Rhode
Island case where similar language kept civilian complaints about police
misconduct as well as the subsequent investigation, and disciplinary reports out
of the exemption.
As you can imagine, much of this analysis is fact and
circumstance specific and is beyond the Court’s immediate analysis.
The next argument that the SCOV addresses concerns Exemption
7. Two sets of initially exempted documents
deal with members of the Department of Public Works who viewed adult
pornography on the City’s dime.
The records are purely disciplinary and were generated by
the DPW, rather than the police. That puts
them entirely under Exemption 7 and its public/privacy interest analysis.
The employees’ union argues that the employees’ privacy interest
in avoiding the immense embarrassment that would follow from disclosure of
these documents outweigh the public’s interest in knowing which of their
friendly neighborhood road crew has prurient, but legal, personal interests.
The SCOV reviews the trial court’s decision in this area
based on an abuse of discretion standard.
The SCOV agrees with the Union that the public interest is not
particularly strong, but it finds that it is enough to overcome the employees’
privacy interests. Further the SCOV
notes that such privacy interests can be preserved and protected by redacting
names and identification—well short of withholding the entire document. Since the trial court did not abuse its discretion
by making such findings, its decision is affirmed.
Finally, the SCOV reverses the trial court’s unusual order
allowing the Herald’s attorneys to review the child pornography investigation
documents in camera (limited review in the Judge’s chambers) even though it had
determined that they were not eligible for public release. Public records are an either/or
situation. Either the documents are
eligible for public release or they are exempt.
If it is the latter, counsel or plaintiff does not get a peek at what
they are missing.
Justice Dooley, joined by Justice Johnson, writes separately
to concur on the majority’s last two points, but they strongly dissent from the
majority’s main opinion.
The dissent’s point is primarily one of statutory
interpretation. On the surface, the
position seems highly legalistic as it revolves around the meaning of the word “including.” But, the point is well made.
The dissent notes that the SCOV and many courts have
traditionally interpreted the word “including” as an expansive term. “You may have any beverage including Jell-O”
would expand the terms “beverage” to include a gelatinous concoction that only
members of the undergraduate Greek community actually tend to “drink.”
The dissent notes that the majority’s opinion renders
Exemption 5’s “including . . . disciplinary
investigations” language meaningless as it becomes another term for a criminal
investigation.
The dissent’s final note goes to the issue of timing. This case is two years old. Public record request cases are time
sensitive and are legally entitled to first priority with the court. Even if Exemption 5 does not apply, the trial
court ruled on and the parties fully briefed the issue of the child pornography
investigation documents under Exemption 7. The dissent notes that the remand without
looking at these arguments means that the case will drag out longer and
finality will be even that more delayed.
Such a process renders even a successful plaintiff’s litigation
meaningless.
Hardly a stimulating thought.
[2] As
Professor Louis Jordan notes in a slightly different context, “it makes no difference what
you think about me, but it makes a whole lot of difference what I think about
you.”
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