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Vt. high court rules criminal investigation records remain exempt after investigation ends

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  1. Freedom of Information
The Vermont Supreme Court ruled that records related to the investigation of a crime are exempt under the state’s Access…

The Vermont Supreme Court ruled that records related to the investigation of a crime are exempt under the state’s Access to Public Records Act — with no time limit for when the exemption expires.

In Rutland Herald v. Vermont State Police, the court ruled last week that state agencies could withhold from release materials related to a criminal investigation of possible possession of child pornography by employees of the Vermont Police Academy’s Criminal Justice Training Council, even after the investigation’s conclusion.

“The language [of the statute] . . . reflects the Legislature’s intent to permanently and categorically exempt all criminal and investigatory records from public disclosure,” the court ruled.

According to the opinion, the Vermont State Police (VSP) initiated the investigation in 2010 after being alerted to the possible misconduct by the state Department of Human Resources. The human resources department was conducting an investigation after inappropriate emails were found on employees’ computers, and suspicious material was discovered on employee David McMullen’s work computer. After the state seized the employees’ work computers, as well as computer equipment from McMullen’s home, McMullen committed suicide.

After the police investigations of the employees and McMullen’s death were complete, it submitted the investigation files to the state Office of the Attorney General, who declined to prosecute anyone because he found no criminal conduct, except by McMullen, the opinion said.

According to the opinion, the Rutland Herald, a local newspaper in Rutland, Vt., filed a public records request with the VSP and Attorney General seeking the criminal investigation files, as well as those from McMullen’s death investigation. The newspaper sued after the police and the Attorney General both denied the request, asserting that the records requested were exempt from disclosure as “records dealing with the detection and investigation of crime,” according to the ruling.

The court affirmed the lower court’s decision, ruling that – even though the investigations were over – the agencies could continue to deny the request under that exemption.

The Rutland Herald argued the records should be disclosed because the investigations were concluded and release would serve the high public interest in the subject of the records.

However, the court disagreed based on its interpretation of the statute, which applies – in part – to records “maintained on any individual or compiled in the course of a criminal or disciplinary investigation.” The court interpreted the word “maintained” to mean that the records are kept “on an ongoing basis,” and the word “compiled” – as used in the past tense – described the type of record that could remain exempt after the investigation.

Furthermore, the court concluded that “in the absence of specific temporal language, there is no temporal limitation” on the exemption, according to the opinion.

The court also rejected the newspaper’s argument that courts in other states provide a time limit for exemptions for investigative materials, noting that many of those cases involved interpretations of statutory language different than Vermont’s.

The Rutland Herald then asked the court to weigh the public’s interest in the information against a person’s right to privacy in the records. The paper argued that there was no privacy interest at stake, as McMullen had died, and the other employees had no expectation of privacy since the investigative records pertained to their work conduct. The court rejected this argument, finding that the statute “reflect[ed] the Legislature’s specific intent to permanently shield all” records included in its language.

The court also declined to order redaction and partial release of the documents. According to the opinion, it held that because the exemption limited access to records based on the type of records, rather than their content, redaction was not required under the statute.

Finally, the Rutland Herald challenged the constitutionality of the exemption under Article 6 of Vermont’s Constitution, which states that “all officers of government” are “at all times, in a legal way, accountable to” the people.

The court rejected this argument, holding that Article 6 article only “provides general guiding principles rather than specific rights.”

Vermont assistant attorney general Mark DiStefano said the court ruled correctly under Vermont law, while Robert Hemley, attorney for the Rutland Herald, said this court decided to take a very narrow look at the exemption.

"[The court] chose a literal and conservative approach to analyzing the [statute], avoiding tackling the broad constitutional and policy issues," Hemley said.

Rob Mitchell, state editor for the Rutland Herald, said the Supreme Court’s decision hurts the public by applying a narrow exemption to a broad group of records, and finding that the exemption has no time limit.

Related Reporters Committee resources:

· Vermont – Open Government Guide