Friday, March 9, 2012

What Are We Going to Request Today, Bain?


Bain v. Clark and Shriver, 2012 VT 14.

Vermont has recently experienced a quiet but consistent movement in the law of public records.  With little fanfare or horn touting, the Vermont General Assembly and the SCOV have been, over the past two years, widening and clarifying the reach of public records law and strengthening the reach and remedies available to parties seeking public records. 

Today’s case, if not one of the direct fruits of that work in the orchard, is at least a volunteer spring up as a byproduct of this tillage. 


In 2005, Plaintiff was arrested and incarcerated as a habitual offender for possession of stolen property and marijuana.  At that time Plaintiff became convinced that Sheriff’s Department had illegally entered his house following the arrest.  He believed that various radio dispatch logs would prove this fact and would overturn his convictions.  To that end, Plaintiff raised the issue of “radio logs” in his criminal trial, its appeal, and various post-verdict motions.  Throughout this process, Sheriff’s office maintained that these records did not exist.

In 2006, Plaintiff, feeling that he was not receiving his due in state court, began filing lawsuits against Sheriff and the State’s Attorney in federal court.  These have all been dismissed. 

In fact, prior to today’s decision Plaintiff could have been and was portrayed as a serial litigator, pursuing a white-whale document with a track record of near-complete failure and questionable competence.  But there is a funny thing about litigation— today’s loser is tomorrow’s prevailing party.  So too does Plaintiff become an unlikely champion of open government and the partial victor in today’s case.

The present appeal comes out of a public records request that Plaintiff made to Sheriff’s office in 2007.  At that time, Plaintiff requested the radio log and other documents but received no response.  He then filed an action against Sheriff and the State’s Attorney seeking the records and damages under the Vermont Public Record Act. 

At the trial court, the State’s Attorney sought to dismiss the claim against her because Plaintiff never filed a request with her office.  The trial court granted the dismissal.  Plaintiff appealed, but the SCOV takes very little time affirming the dismissal.  If you do not make the request, you cannot file the lawsuit.  Basic Monopoly rules are in play here, and Plaintiff cannot pass go on this issue.

As for Sheriff, the issue becomes more complex.  The basis for Sheriff’s denial is a little odd.  Rather than denying that the records sought do not exist as Sheriff had maintained in the prior criminal investigations, Sheriff argues and the trial court agrees that the documents are covered under the law enforcement exemption of Section 317(c)(5). 

Normally, government agencies will simply confirm that a record does not exist before the agency gets into exemptions.  They do this in part because that is the way the law is set up but also because a response of non-existence is more of a show stopper than an exemption.  If a record does not exist that is the end (sorry, Sartre, you cannot appeal non-existence).  An exemption on the other hand is subject to appeal, in camera review, and more extensive scrutiny. 

There are a number of possible reasons for this switch in strategy.  Plaintiff’s request may be broader than what he asked for in his criminal trial.  Sheriff may have felt compelled to plead the exemption.  Sheriff and the trial court may have also wanted to skip the question of existence and go straight to a ruling on the exemption as a matter of law.  Whatever the reason, the strategy backfires on appeal as the SCOV smells something askew and is left to “wonder, do these records exist?  If not, why haven’t defendants relied on this position to defeat Bain’s claim?  If they do exist, why did the Sheriff’s Office say otherwise in 2004?” 

These are not the question on which you will find the SCOV affirming.  So here, Sheriff’s argument quickly fails to the limited analysis required by the posture of the case. 

This appeal comes to the SCOV on a motion to dismiss.  That means the standard of review is to take all of Plaintiff’s allegations as true and see whether relief can be granted as plead.  Looking at Plaintiff’s complaint, the SCOV assumes the records exist.  If they exist, then the law enforcement exemption must be applied in a narrow manner consistent with the purpose of the PRA and the legislature’s policy of open government. 

Since the trial court never reviewed and Sheriff never offered any greater detail on the documents, the SCOV finds the record and basis for the exemption to be inconclusive.  Plaintiff has requested and alleged the existence of records.  Sheriff has sought to block disclosure under an exemption, but Sheriff has not explained why such records are exempt or how they fit into the exemption.  As the SCOV discusses in detail, the law enforcement exemption is limited to documents generated in the course and germane to a law enforcement investigation and detection of a crime.  This does not include basic records such as an arrest record, criminal citations, or other similar administrative information generated in the course of a law enforcement action but which lack any categorically sensitive information.

Sheriff, despite his reliance on Section 317(c)(5) has not shown that he is entitled to such relief as a matter of law or that the records sought, if they do exist, fall into the protected category.  As a result, the trial court’s decision is reversed and remanded, giving Plaintiff one more shot at proving his case. 

Following this reversal, the SCOV also lifts the pre-litigation injunction imposed by the trial court on Plaintiff because of his serial litigation on the issues.  The SCOV finds that it is improper since this is his first and only public records request to date, and it has yet to be proven meritless, rendering such a penalty premature. 

This case reminds me of a story that a certain unnamed, senior partner told me about a fellow in one of the Northern counties who for years railed and railed against the Sheriff of his county.  Our man alleged that the Sheriff was up to his neck in corruption.  No one paid him much mind, and public opinion wrote him off as a kook stuck in a loop of baseless allegations. 

Then one evening near dusk, our man was fishing near a bridge.  A car pulled up on the bridge and an unseen figure threw a package into the river.  Our man, in a cosmic accident of timing, happened to be in the right spot and caught the package—a live baby wrapped in swaddling!  Suddenly, our man was the hero and lauded by the community. Now, our man’s old charges were viewed in a different light and took on new substances.  Officials began an investigation.  And lo and behold, the Sheriff was embezzling funds!  Scandal ensued, and the top cop was last seen scurrying out of town.    

This is not to say that Plaintiff’s small victory here (the SCOV did not rule on the merits of the claim) amounts to saving a baby, but merely that once in a while even the most outlandish of charges prove to have a basis in truth and that the SCOV’s ruling ultimately affirms the right that each of us has to put government to the test to produce the records that ensure the public trust is being properly managed and administered.

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