Bain v. Windham Cnty. Sheriff Keith Clark

• Decision Date: 02 March 2012
• Docket Number: No. 09–468.,09–468.
• Citation: 44 A.3d 170,2012 VT 14
• Parties: Stephen Robert BAIN v. WINDHAM COUNTY SHERIFF KEITH CLARK and Tracy Shriver, Windham County State's Attorney.
• Court: Vermont Supreme Court

44 A.3d 170

2012 VT 14

Stephen Robert BAIN

v.WINDHAM COUNTY SHERIFF KEITH CLARK and Tracy Shriver, Windham County State's Attorney.

No. 09–468.

Supreme Court of Vermont.

March 2, 2012.

Stephen R. Bain, Pro Se, St. Johnsbury, Plaintiff–Appellant.

William H. Sorrell, Attorney General, and Jana M. Brown and David Cassetty, Assistant Attorneys General, Montpelier, for Defendant–Appellee Shriver.

Barbara R. Blackman and Robin A. Freeman, Jr. of Lynn, Lynn & Blackman, P.C., Burlington, for Defendant–Appellee Clark.

Dan Barrett, Montpelier, for Amicus Curiae American Civil Liberties Union Foundation of Vermont.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

JOHNSON, J.

¶ 1. In this appeal, we are asked to consider whether “radio dispatch and unit logs” generated by police are exempt from disclosure under the Vermont Access to Public Records Act. Stephen Bain, pro se, requested such documents from Windham County Sheriff Keith Clark, and filed suit when the records were not produced. The trial court dismissed Bain's suit against Clark, finding the records exempt from disclosure under 1 V.S.A. § 317(c)(5) as “records dealing with the detection and investigation of crime.” Bain did not submit a records request to Windham County State's Attorney Tracy Shriver, and the court dismissed Bain's claim against her for lack of jurisdiction. We affirm the court's decision as to Shriver, and reverse and remand as to Clark.

¶ 2. Bain was incarcerated as a habitual offender following convictions in 2005 for possession of stolen property and possession of marijuana. Bain believes that police unlawfully entered his home following his May 2003 arrest, and he has pursued this claim in numerous suits. This issue was raised and squarely rejected in Bain's criminal appeal. See State v. Bain, 2009 VT 34, ¶¶ 14–17, 185 Vt. 541, 975 A.2d 628(upholding trial court's finding that no warrantless search of defendant's home occurred). We have also rejected as unsupported Bain's assertion, made in connection with post-verdict motions, that the police possessed and refused to disclose exculpatory “radio dispatch unit logs.” See State v. Bain, No. 2009–235, 2010 WL 287030, at **1–2 (Vt. Jan. 15, 2010) (unpub.mem.), available at http:// www. vermont judiciary. org/ d- upeo/ upeo. aspx (finding that Bain failed to show that police “radio logs,” which he believed were exculpatory, in fact existed where State had represented during criminal trial that the records did not exist).

¶ 3. Beginning in 2006, Bain filed a series of lawsuits against Clark and others in federal court, focusing again on allegations of police misconduct. All of these complaints have been dismissed. In November 2008, Bain filed the instant complaint against defendants, reiterating his allegation that police had unlawfully entered his home without a warrant five and a half years earlier. Bain maintained that defendants were unlawfully withholding exculpatory evidence in violation of his rights. He sought relief under the rule governing discovery in criminal cases, V.R.Cr.P. 16; he also sought the production of “any and all computer, telephone or otherwise generated radio dispatch unit log[s] of [his] arrest and the bona fide activities of law enforcement for the days of May 22 and 23, 2003” under the Vermont Access to Public Records Act (PRA). Bain stated that he had requested these documents from Clark in December 2007, but received no response. He did not allege that he requested the documents from Shriver.

¶ 4. Both defendants moved to dismiss Bain's complaint. Shriver pointed out that Bain had failed to make a public records request from her office, and that he thereby failed to exhaust his administrative remedies. She also asserted that the documents fell within 1 V.S.A. § 317(c)(5) (2009),¹ which exempts from disclosure:

records 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 by any police or professional licensing agency; provided, however, records relating to management and direction of a law enforcement agency and records reflecting the initial arrest of a person and the charge shall be public.

Clark similarly sought dismissal under § 317(c)(5), and he also requested injunctive relief to preclude Bain from continuing to file similar claims against his office.

¶ 5. In November 2009, the court granted defendants' motions. With respect to Shriver, the court agreed that Bain failed to make a proper records request under 1 V.S.A. § 318, and thus failed to exhaust his administrative remedies. See Bloch v. Angney, 149 Vt. 29, 31, 538 A.2d 174, 175 (1987) (party must exhaust administrative remedies under 1 V.S.A. § 318 prior to seeking relief in superior court). The court rejected Bain's assertion that his request to Clark served as a request to Shriver as well. It found no support for the proposition that the Sheriff's Office and the State's Attorney's Office were equivalent for purposes of a public records request, or that the state's attorney could be charged with having to respond by resort to its own files to a records request made solely to a police agency within the same county.

¶ 6. The court next considered Clark's contention that the records were exempt under § 317(c)(5). In addressing this issue, the court acknowledged the “strong policy favoring access to public documents and records.” Springfield Terminal Ry. v. Agency of Transp., 174 Vt. 341, 345, 816 A.2d 448, 452 (2002). It noted as well that PRA exemptions are construed strictly against the custodian of such records, and that the custodian must do more than provide “conclusory claims or pleadings” to establish that the exemption applies. Finberg v. Murnane, 159 Vt. 431, 438, 623 A.2d 979, 983 (1992); see also 1 V.S.A. § 319(a) (agency bears burden of justifying its decision to deny access).

¶ 7. The court found the records here were plainly implicated in “the detection and investigation of a crime,” namely, the crimes for which Bain had been tried and convicted. It noted that the request bore no relationship to statistical reports or budget submissions or policy statements that conceivably informed the “management and direction” of a sheriff's office. Nor could Bain's broad charges of criminal collusion by the investigating officers bring his claim within the “management and direction” exception on the attenuated theory that the records would “expose” incompetence in the management of the department. Similarly, the court rejected the notion that the radio dispatch and unit logs and other documents pertaining to the day of Bain's arrest were records reflecting the initial arrest of an individual.

¶ 8. The court also rejected Bain's argument that, even if the records fell within the exemption for the detection and investigation of crime, Clark must still produce them because the criminal prosecution had concluded. Bain cited 1 V.S.A. § 317(c)(14), which exempts from disclosure “records which are relevant to litigation to which the public agency is a party of record, provided all such matters shall be available to the public after ruled discoverable by the court before which the litigation is pending, but in any event upon final termination of the litigation.” The court found no suggestion that the Legislature intended this exemption to modify the separate provision governing records of detection and investigation of crime. It emphasized that Bain could not pursue his obsession with exposing investigatory records he believed would be exculpatory through the PRA; his rights of discovery were encompassed by the criminal proceedings and they were not a proper subject of collateral review.

¶ 9. Finally, the court granted Clark's motion for injunctive relief under Vermont Rule of Civil Procedure 65. It declared Bain a vexatious litigant and enjoined him from continuing to file suit against Clark for claims arising out of his 2005 conviction without first securing the court's approval. This appeal followed.

¶ 10. On appeal, Bain essentially reiterates the claims he raised below. He argues that his records request on Clark served as a request on Shriver because the two are “in privity.” He restates his position that the records he seeks are not exempt from disclosure under § 317(c)(5). The American Civil Liberties Union (ACLU) has filed an amicus brief, arguing in support of disclosure. It advances various policy arguments to support Bain's contention that § 317(c)(5) does not extend to the records at issue here. Bain also challenges the court's order granting injunctive relief to Clark. ²

¶ 11. Turning first to Bain's complaint against Shriver, we agree that dismissal was warranted because Bain failed to exhaust his administrative remedies. See Nichols v. Hofmann, 2010 VT 36, ¶ 4, 188 Vt. 1, 998 A.2d 1040 (Supreme Court reviews rulings on motions to dismiss de novo). As the trial court explained, the administrative procedure for requesting public records is set forth in 1 V.S.A. § 318. By statute, individuals must submit such requests to the custodian of a public record under § 318(a) before they will be deemed to have exhausted their administrative remedies. Id. § 318(b). Only those who have been aggrieved by the denial of a request for public records can apply to the superior court for relief. Id. § 319(a). When a party fails to comply with this procedure, the superior court lacks subject matter jurisdiction over a public records act complaint and such complaint must be dismissed. Bloch, 149 Vt. at 31, 538 A.2d at 175.

¶ 12. Bain offers no compelling argument to the contrary. His assertion that these two defendants are “in privity” for purposes of a PRA request is wholly without merit. Nothing in the PRA supports this argument, and the cases cited by Bain are inapposite. See, e.g., First Wisconsin Mortg. Trust v. Wyman's, Inc., 139 Vt. 350, 358–59, 428 A.2d 1119,...