Rutland Herald v. Vermont State Police, 2012 VT 24.
The Vermont Public Records Act is an important and expansive law that gives individuals the power to request an unlimited number of documents from various agencies of the State as well as any municipality. With little more than a stamp and a well-phrased request, anyone can make an inquiry that will yield a trove of documents from the agency—good, bad, or ugly.
Trying doing that next time you have a beef with General Electric.
Such power, though, is not boundless. As any PRA lawyer will tell you, there are exemptions that the State regularly invokes, which can bring any search or request to a screeching halt. At least 40 of them reside in 1 V.S.A. § 317(c), the Act’s catalogue of unrequestables.
Today’s case deals with one of these exemptions centering on the documents and records compiled as part of the detection or investigation of a crime. 1 V.S.A. § 317(c)(5). The so-called law enforcement exemption allows police and investigators to refuse public records requests for material “dealing with the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal or disciplinary investigation.”
The facts of this case are simple and tragic. The State Police began investigating a trainer from the Police Academy on suspicion of child pornography. Evidence gleaned from the trainer’s work computer and e-mails to colleagues gave the Police probable cause to execute a search warrant for the trainer’s home computer. Shortly after the Police seized the trainer’s computers, the trainer committed suicide. The criminal investigation also became an inquest into the trainer’s death.
Given the trainer’s position, this case was a Red Ball, and media, like the Rutland Herald began reporting on the details. Six months after the trainer’s death when the Police had completed their investigation, the Herald made public records requests to the State Police and other agencies for information stemming from the Police’s investigation. While the Police complied with parts of this request, it asserted the law enforcement exemption over other documents.
The case went to trial court and was resolved in the Police’s favor on summary judgment. So appeal to the SCOV is strictly a legal question about the reach of the Public Records Act and the scope of the law enforcement exemption.
More particularly, the question for the SCOV is whether the law enforcement exemption has either a time-limit or a balancing test. The SCOV rules that neither apply, but the ruling is couched in statutory analysis that all but invites the legislature to look at the issue in 2013.
A bit of background: public record exemptions tend to have one or two purposes. The first is a protection of information that the state considers sensitive. In this case, Section 317(c)(5) is intended to protect law enforcement techniques, the identity of informants, and information the police seek to keep confidential. The second purpose is a privacy standard. Most records, particular in a criminal context, concern the individuals involved—perpetrators, victims, witnesses, initial scene personnel, etc. Protecting their privacy is at least a consideration that, depending on the person’s role, receives consideration.
So for example on the first purpose the federal government has a National Security Exemption that allows, the Energy Department, to deny any request you might make for plans and instructions on how to build nuclear reactor. Such an exemption is not subject to balancing public interest, to time limits, or to any factor other than the agency’s own determination that this information is sensitive and its release would threaten (however directly or existentially) the nation’s safety. Such exemptions are the strongest type of exemptions because they give free and full reign to the agency to both define and apply the exemption. Courts are quite leery to question such exemptions and their invocation is often the end of the inquiry.
On the second purpose, there is the SCOV’s recent ruling on property tax records based on the income tax exemption. In that case, the SCOV found that the exemption was solely to protect the privacy of individuals that had to submit personal information to the Government for tax relief. The information was not particularly sensitive to the state, but it could prove embarrassing or hurtful to the private individuals.
As you might expect, these two purposes give rise to different standards. Exemptions that are intended to protect privacy are often balanced with the public’s need to know and hold government accountable. When such needs become greater than the privacy interest, then the courts are likely to deny the exemption. On the other hand, exemptions that protect sensitive state information tend to be applied with more rigidity. So no matter how great the public’s need to know about nuclear safety or to hold government accountable, you will not find a court willing to compel an agency to release those plans so long as the agency deems them sensitive to National Security.
Of course the federal National Security exemption is the gold standard of such exemptions and to the extent that other exemptions follow the purpose, courts grant them less deference depending on their overall importance. Up and until today’s ruling, there was a notion that while the law enforcement exemption would protect certain systemic law enforcement techniques (confidential investigation techniques, identities of informants) for an unlimited period of time, it would not extend broadly to cover the actual materials of a criminal investigation once that investigation was closed. The understanding, rather, was that the exemption was, in part, time sensitive giving the greatest deference to the Police during an on-going investigation and progressive less and less as the case resolved.
But not so holds the SCOV! Looking closely at the language of the exemption, the SCOV finds no time limit or similar balancing device. Other exemptions contain such language, and in the absence, the SCOV declines to read such terms into the law enforcement exemption. Much of the analysis that the SCOV offers focuses on differentiating the Law Enforcement exemption from other cases where privacy issues were at issue and the public records acts of other states that have drafted temporal limits into their law enforcement exemptions.
In the end, the SCOV reasons that whether you agree or disagree, the legislature crafted the exemption broadly, and the SCOV has no choice but to apply it in that manner. To read in limits based on the Herald’s policy arguments would modify the legislative intent. In other words, take your troubles next door to golden dome, our hands are tied.
The SCOV also rejects the Herald’s constitutional argument.
The gist of this argument is as follows: The Vermont Constitution’s Article 6 requires the government to be “at all times, in a legal way, accountable” to the people. If the Police or any government agency can exempt public records in perpetuity— particularly records investigating criminal act committed by a state law enforcement employee—then there is no accountability and a violation of Article 6.
The SCOV’s rejection of this provision plays out as the contrapositive of its recent decision regarding Article 7 of the Vermont Constitution. In this case, the SCOV concludes that Article 6 is a statement of principle and does not give rise to a specific and enforceable right. It is simply a statement of values rather than a concrete promise to the citizens. As such, it cannot be a foundation for any specific limit on a statute. Like the Ancient Mariner, it cannot compel but simply haunts our analysis and tries to persuade simply by its own presence.
With that the trial court’s upholding of the exemptions is affirmed.
Justice Dooley, writing separately, agrees with all of this analysis, but he writes separately and dissents on an issue that the majority dismisses out of hand. It appears that by conducting an inquest the Police opened up a proceeding that was by its nature judicial and not covered by the Law Enforcement exemption.
The word inquest does call to mind a type of mini-trial or hearing where a fact finder receives evidence to make a determination. But as the dissent notes, this is not the actual process that is followed. In essence, an inquest is a wide-ranging, somewhat broad investigation that has subpoena powers and an authority, separate from a law enforcement function, to collect information.
This last point is the heart of the dissent’s issue. An inquest, in whatever form it takes, is not a law enforcement investigation or detection of crime. It is a judicial proceeding and any documents or records produced in the course of such a proceeding are public records not subject to the law enforcement exemption.
Under this analysis, the dissent would have released three out of the four disputed records. The dissent chides the majority for avoiding the issue on “highly technical grounds.” It also calls out the murky and confusing nature of such proceedings, noting that the practice of the inquest does not follow the statute and notice of such hearings is sparse or non-existent. As the dissent notes, much of the information presented in the SCOV’s opinion is likely to be new to the Herald, which has not had a full opportunity to review the records or proceedings being withheld.
The dissent’s point is a common one in public records litigation. Parties seeking information are obliged to be artful and somewhat precise in making requests. But such requests are hard to make when you do not know what records exist. Indeed, the majority dismisses the inquest issue because the Herald never made the precise request or arguments. Such problems are inevitable. Under 1 V.S.A. § 318, there is some language intended to require the government to be flexible and responsive to these problems, but neither the dissent nor the majority delve into the responsibilities or obligations this language might create for the State to identify different proceedings it may have conducted with the same information.
In the end, the dissent is two votes shy of a majority, and the Herald goes home empty handed.
Read all about it.