Friday, May 4, 2012

The Herald Strikes Back

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.

[1] Actually, it does, but only in cases that we can discuss another time. 

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