Open records bill poised for vote
By Brent Curtis
STAFF WRITER | February 10,2013
A vote on a new bill dealing with the release of investigative records kept by Vermont police is expected to take place in the state Senate Judiciary Committee this week.
After a month of hearing testimony to consider ways the state could increase access to law enforcement records, committee Chairman Sen. Richard Sears, D-Bennington, said last week that legislative counsel has been instructed to craft a bill in keeping with a proposal put forth by Gov. Peter Shumlin.
The governor has proposed adopting the standard of the federal Freedom of Information Act, but with additional language that would exempt any records that could “reasonably be expected to constitute an unwarranted invasion of personal privacy.”
Even with the added language, the governor’s proposal would provide far more access to police records than the public has now.
One of Vermont’s nearly 250 exemptions makes records compiled during the course of a criminal investigation off limits to public scrutiny — indefinitely.
That exemption has been used routinely by law enforcement and municipalities to deny requests from journalists and organizations such as the American Civil Liberties Union.
In Rutland, the city’s attorney last week cited the exemption multiple times while denying the Rutland Herald’s request for documents related to a lawsuit filed by a former city police officer. The officer claimed he was harassed and left his job after complaining about the actions of a superior.
The new bill, which Sears said he hoped to bring to a vote in his committee by Wednesday, would mirror the federal law which presumes that all law enforcement records are public unless at least one of a handful of exemptions applies.
Those exemptions aren’t insignificant — for example, releasing records that could “reasonably be expected to interfere with enforcement proceedings” could block public access to many open cases.
But Allen Gilbert, executive director of the ACLU in Vermont, said the federal standards would provide the public with significantly more access to records than it has now.
“The public would have access absent some harm under the exemptions,” he said.
The additional language suggested by the governor wasn’t actually adding an obstacle to public access, Gilbert said. Rather, Shumlin’s wording about invasion of privacy concerns is already considered by the courts under another of the state’s exemptions.
“The personal privacy question falls under the C7 exemption and it’s actually been litigated through in a number of cases,” he said. “The courts employ a balancing test in those cases, weighing the public’s right to know and the privacy rights of the individual.”
That process doesn’t go far enough to preserve privacy rights as far as state Attorney General William Sorrell is concerned.
In the past, the attorney general’s office has argued in support of the existing exemption for law enforcement investigations.
But following concerns raised last year about how police and prosecutors investigate members of law enforcement, Sorrell proposed making criminal cases focused on the conduct of on-duty police officers open to the public.
“The real question here is whether the police are properly investigating their own and whether prosecutors are adequately handling those cases, or is there a double standard for law enforcement,” Sorrell said.
Files related to investigations of private residents should remain off limits, he said, both to protect the privacy of individuals who were never charged with a crime and to prevent court challenges that would tax the resources of his office.
“Should I have to go into court to prove that someone’s suicide should not be open to public scrutiny?” Sorrell said. “I don’t think so.”
If the new bill is approved by the Senate Judiciary Committee this week, it will move to the Government Operations Committee for further review.