Thursday, October 7, 2010

Public Records Request Provides Pit Stop for Speeding Lawyer

What happens when a lawyer gets pulled over for a speeding ticket?  If you are like Plaintiff, you start with a public records request for:

[T]wenty-one items, including: documents related to plaintiff’s traffic ticket; documents about speed recording devices; the citing officer’s employment history and performance records; engineering studies and history concerning the speed limits on Route 7 and elsewhere in Burlington; and documents governing general police procedures as well as more specific protocols for stopping vehicles and issuing tickets.

Then you make the same request with the judicial bureau.  When the bureau denies your discovery request, and the City asserts a litigation privilege over the public records request, you file a parallel civil suit alleging that the City has violated the public records law, and request a stay on your speeding ticket case to litigate whether the City improperly withheld documents. 

So went Plaintiff’s case until it skidded to a halt at the trial court.  The lower court granted the City’s summary judgment motion and dismissed Plaintiff’s voluminous public records requests on the basis that the circumstances and facts showed that Plaintiff only sought this material to defend and delay his traffic ticket case.  Therefore, 1 V.S.A. § 317(c)(14), the litigation exemption applied.  In other words, public records laws cannot be used as an alternate route around discovery rule roadblocks. 

Not so fast, says the Court on appeal, the whole point of section 317(c)(14) is to put a hold on public records request during litigation when the documents are “relevant to litigation to which the public agency is a party of record.”  Thus, the outcome of the document request is dependent upon the definition of “relevant,” which is defined differently than under the Rules of Evidence.  Although documents must still be pertinent and “at issue” in the underlying litigation, documents that may have been ruled outside of discovery may be included.  The exemption does not give the trial court leave to stoplight any request made by a party simply because that party was in litigation with the Agency.  In fact, the identity of the requestor cannot be used as the basis for determining relevance or denying documents under Section 317(14).  Finberg v. Murnane, 159 Vt. 431, 437, 623 A.2d  979, 983 (1992)  Looking under the hood of the trial court’s decisions, the Court indicated it found the lower court’s methodology lacking some horsepower.  Striking down Plaintiff’s requests because he probably wanted them to defend and delay his speeding ticket might hold for more specific documents relevant to Plaintiff’s specific traffic stop.  But the Court waived a yellow flag for its application to withhold more general documents that might be “relevant” within the meaning of section 317(c)(14). 

On that note, the Court remanded the case back for additional findings consistent with its framework of “at issue” relevance.  The strong suggestion is that the City will have to tune up its position to establish this exemption for the more general information.  To drive this point further home, the Court uses ¶ 12 to honk the horns of strong public interest in access, the role of a public officers as “trustees and servants” of the public interest, and open government being much better than “Old World Tyranny.”  (Cue all-male chorus humming the Battle Hymn of the Republic.)

At the end of the decision, the Court took two more laps to address the Plaintiffs issue of penalties and the delay of the speeding ticket.  First, the Court peels away from Plaintiff’s argument that he is entitled to waiver or damages from the City’s failure to comply with his requests in a timely manner.  The Court notes that 1 V.S.A. § 318 provides for a short timeline, which is more of a suggestion than a deadline, and then “deemed denied” result if the request is not timely fulfilled.  Requestors like Plaintiff may grieve if they are unhappy. 

Finally, the Court chides the judicial bureau for continuing the speeding ticket hearing while the civil case was running.  Such a decision, says the Court, “is wrong.”  Speeding tickets are summary and expedited proceedings.  The cases run, and if parties want to object they will have to do so directly.  So get a move on. 

A handy chart comparing the amount of money spent on this case in comparison to Plaintiff’s speeding ticket was not provided with the opinion.

Daniel Richardson

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