by Sara
Puls
Herald v. City of Rutland, 2013 VT
98.
Sometimes
the law just makes so much sense! Turns out, police officers, employees of the
public variety, can’t watch porn at work and expect to keep it private. What a concept! But don’t worry; the Vermont Public Records
Act will still protect your private, intimate, public employee details from
public disclosure—just not that intimate.
Here are
the facts. In 2010, a Rutland Police Sergeant
was fired in the wake of a criminal investigation involving suspected viewing
of pornography and child pornography on work computers, some of which may have
been obtained from evidence lockers. The
Rutland Herald immediately launched
an investigation and quickly learned that throughout the last decade, other police officers had been
investigated and disciplined for using department computers to view pornography
at work.
The
Herald requested from the City, per Vermont’s Public Records Act which requires
public entities to provide access to public records,
the complete records from a 2004 internal investigation into police
employees and subsequent disciplinary actions, as well as discipline records of two employees from the Department
of Public Works for violating the City's internet usage policy.
The City
denied those requests on the grounds those documents were exempt from
disclosure under Vermont Public Records law under either
exemption (c)(5) (records dealing with the detection and investigation of crime)
or (c)(7) (personal documents relating to an individual employee). The City argued that the privacy of their employees
would be violated if these records were released and that precedent could
threaten the privacy rights of public employees all over the state.
The
Herald appealed to the trial court, and in September of 2010, the trial court conducted
an in-camera review of the records and ordered the City to release the records,
with certain redactions. The court rejected the City's argument that the documents
were exempt from disclosure, either under 1 V.S.A. § 317(c)(5) or (c)(7).
The City
immediately appealed. On its first trip
up in 2012, the SCOV affirmed
the trial court's decision as to the records concerning the files of the public
works employees. But, the SCOV reversed
and remanded as to the remaining police records, holding that the trial court
needed to assess “as a threshold matter” if the records fell under “the
investigation of a crime” exception. Thus,
SCOV found it premature to address whether the records would fall within the
“personal documents” exception.
In
September 2012, following an evidentiary hearing on remand, the trial court
concluded that certain documents were exempt from disclosure under § 317(c)(5),
while leaving in place its September 2010 ruling that records pertaining to police-employees-watching-porn-at-work
were not exempt from disclosure. The court found this exemption applies only to personal documents relating to
the privacy of the individual such as:
information maintained to hire, evaluate, promote or discipline any employee, information
relating to personal finances, medical or psychological facts of an employee, or
“intimate details of a person's life” including information that might subject
the person to “embarrassment, harassment, disgrace, or loss of employment or
friends.”
In considering
whether these records fell under the “personal documents” exception, the trial
court applied a balancing test where the public interest in disclosure is
balanced against the privacy interest of, and potential harm to, the
individual. Under this balancing test, the court considered factors such as the
relevance of the records to the public interest, the significance of the public
interest involved the nature, gravity, and potential consequences of the
invasion of privacy to the individual, and the availability for the requested
information from alternative sources.
Under
this test, the trial court found the records highly relevant to the public
interest, finding a significant public interest in disclosure of such matters, emphasizing
that the public should be allowed to scrutinize the activity of public employees
suspected of wrongdoing, as well as the conduct of the public employees who
investigate them. The trial court also
pointed to no alternative sources for this information.
Alternatively,
the trial court found the privacy interests at stake much less compelling and very
narrowly construed the personal documents exemption and “intimate details of a
person’s life” language. It further rejected
the argument that the records should be exempt merely because they would reveal
“intimate” information that “might subject the [employees] to embarrassment,
harassment, disgrace, or loss of employment or friends.” As the trial court noted, [reasonable] public
employees have little expectation of privacy in their actions or identities
when they view and send porn on public
computers, while working as public
employees. Therefore, since these were
not private, intimate details about an employee (although perhaps literally intimate) the court found
little, if any, privacy interest
involved and balanced against the significant public interest, held that the
documents should be disclosed.
Again,
the City appealed from the trial court’s order. And again the City reiterated
that the records should be exempt under the “public documents” exemption and
that the court erred in finding that its employees had no privacy interest (…in
viewing porn at work). The City argued that
employees must have some expectation of privacy while performing “work related
functions” whether allegedly improper or not, because otherwise, there would be
no need for a balancing test.
The SCOV reviewed the trial court’s decision for abuse of
discretion and found none. The
SCOV starts its analysis as it does with all such public records cases by
emphasizing the principal that the Vermont Public Records Act favors the right
of access to records, and that the stated Legislative intent is a preference
for “free and open examination of records” consistent with the Vermont
Constitution. Thus, exemptions, when
they are asserted, are construed strictly against the records custodian, and
any doubts are to be resolved in favor of disclosure.
In response to the City’s arguments, the SCOV notes, even
assuming that the records contain “personal information” within § 317(c)(7),
the balancing test must still be conducted. The
SCOV agrees with the trial court’s analysis of the interests: that the public
interest heavily outweighed any of the employees’ privacy interests at stake,
not to mention the inherently unreasonable expectation of privacy of public
employees viewing and sending porn on work computers.
The SCOV
also emphasizes the high level of the public interest involved with such
repeated instances of similar misconduct over a five-year period. Internal
investigation records revealed that one employee downloaded between 5,000 to 10,000 pornographic images onto his
work computer, including possible child pornography.
The SCOV
distinguishes the documents at issue from documents
which would fall under this “personal documents” exception, such as those
pertaining to personnel matters where the officers' execution of duty is called
into question or subject to disciplinary correction, or records of performance
evaluations which would not significantly advance the public interest. Here, the SCOV notes such “personal frolics” are completely entirely unrelated to the officers' jobs, merely having
occurred on public time, on public property, on public dollar, and therefore would
not fall under the exception to disclosure.
Further, the SCOV also finds for disclosure without the need for redaction of the employees’ personally
identifying information, as that might unfairly taint the entire police
department’s reputation when only a few employees were at fault. Overall, given the significant public interest
at stake balanced against little to no privacy interest, the SCOV agrees with
the trial court that the balance strongly tips in favor of disclosure of all
the “intimate” details of the police department’s personal frolics.
So the Hearld walks away with its information (and presumably
its attorney’s fees). And the City walks
away with the hard-won knowledge that public records, like pornography, are
difficult to deny to motivated seekers.
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