Herald v. City of Rutland

• Decision Date: 06 April 2012
• Docket Number: No. 10–344.,10–344.
• Court: Vermont Supreme Court
• Parties: RUTLAND HERALD v. CITY OF RUTLAND and AFSCME Council 93, Local 1201.

48 A.3d 568
33 IER Cases 1237
40 Media L. Rep. 1699
2012 VT 26

RUTLAND HERALD
v.
CITY OF RUTLAND and AFSCME Council 93, Local 1201.

No. 10–344.

Supreme Court of Vermont.

April 6, 2012.

[48 A.3d 569]

Robert B. Hemley and Matthew B. Byrne of Gravel and Shea, Burlington, for Plaintiff–Appellee.

Andrew Costello, Office of the City Attorney, Rutland, for Defendant–Appellant.

Michael Blair, Rutland, for Intervenor–Appellant AFSCME Council 93, Local 1201.

William H. Sorrell, Attorney General, and Mark J. Di Stefano, Assistant Attorney General, Montpelier, for Amicus Curiae State of Vermont.

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

REIBER, C.J.

¶ 1. In this case, we again confront the proper scope of the investigatory records exemption under the Vermont Access to Public Records Act (PRA), 1 V.S.A. § 317(c)(5). At issue are documents that relate to the investigation and discipline of City of Rutland employees for viewing pornography, including possible child pornography, at work. The City challenges a superior court order requiring it to disclose certain documents to plaintiff Rutland Herald. AFSCME Council 93 Local 1201, the bargaining agent for non-managerial

[48 A.3d 570]

employees of the Police Department and the Department of Public Works (DPW), also appeals. The State of Vermont has filed an amicus brief.

¶ 2. The City argues that the documents at issue are exempt under § 317(c)(5) as records “compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency,” and under 1 V.S.A. § 317(c)(7) as “personal documents relating to an individual.” AFSCME is concerned with documents that relate to the imposition of discipline in 2004 against two DPW employees for viewing pornography at work, and the imposition of discipline in 2007 against a police officer on similar grounds. AFSCME maintains that these records should be exempt under § 317(c)(7). We affirm in part, and reverse and remand in part.

¶ 3. The superior court found the following facts undisputed. The Herald has been investigating whether city police officers have been viewing pornography at work. In February 2010, the Herald obtained access to a September 2009 search warrant, which indicated that police department computers had been used to view and store pornography. The day after the warrant materials were unsealed, a police officer was placed on administrative leave. Through a public records request, the Herald determined that the officer was Sergeant David Schauwecker and that he was the target of a child pornography investigation. The Herald published articles identifying Schauwecker and discussing the investigation. At a public meeting, the police chief stated that he had not suspended Schauwecker any sooner because he did not have sufficient information to do so. Schauwecker was subsequently fired by the board of civil authority.

¶ 4. In connection with its investigation, the Herald requested documents from the City under the PRA. As relevant here, the City refused to produce the following records: (1) a 2004 letter from the police chief to “RPD employee # 1” regarding the employee's status pending completion of an internal affairs investigation based on an allegation of viewing pornography on duty; (2) a 2004 letter from the chief to RPD employee # 1 regarding the chief's imposition of discipline for viewing pornography on duty; (3) the complete record of the internal affairs investigation with respect to RPD employee # 1; (4) a 2010 letter from the chief to “RPD employee # 2” regarding the imposition of discipline for viewing pornography on duty; (5) the complete record of the internal affairs investigation of RPD employee # 2; (6) a letter from the chief to Schauwecker informing him of the chief's recommendation to the board of civil authority as to his termination; (7) a letter from the chief informing Schauwecker of an upcoming meeting regarding his employment; (8) the complete record of the internal affairs investigation dealing with Schauwecker's alleged viewing of pornography while on duty; (9) a January 2007 letter from the DPW Commissioner to “DPW employee # 1” setting forth the Commissioner's imposition of discipline for violation of the City's internet usage policy; and (10) a similar January 2007 letter to “DPW employee # 2.” The City asserted that items (1)-(8) were exempt under both § 317(c)(5) and § 317(c)(7), and that items (9) and (10) were exempt under § 317(c)(7).

¶ 5. Unable to procure these documents by request, the Herald filed suit and moved for summary judgment in its favor. AFSCME moved to intervene and to dismiss the case. AFSCME asserted that disclosure of employee disciplinary records would violate the employees' rights to privacy and confidentiality. The City produced a Vaughn index of the withheld

[48 A.3d 571]

documents and provided copies of the documents for in camera review.

¶ 6. Following a hearing and in camera review, the court issued a decision directing that the documents be released with certain redactions. At the outset, the court acknowledged the “strong policy favoring access to public records and documents.” 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. With these principles in mind, the court first considered whether items (1)-(8) were exempt from disclosure under § 317(c)(5). That provision exempts:

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.

Id.¹ The court did not address, as a threshold matter, whether the documents were “records dealing with the detection and investigation of crime.” Instead, it focused on whether they were records “maintained on any individual or compiled in the course of a criminal or disciplinary investigation by any police ... agency.”

¶ 8. Construing § 317(c)(5) narrowly, the court found that it applied only during the “course of” an investigation, and not, as in this case, when an investigation was complete. The court thus concluded that items (1)-(8) were not exempt from disclosure under this provision.

¶ 9. The court also found that these records related directly to the “management” of the police department, and therefore were also disclosable under the proviso language of § 317(c)(5). The court explained that the records demonstrated how the police department investigated its own employees—officials who were entrusted by the people to investigate crimes and were given the power to arrest. It reasoned that the people of Vermont have the right to review the decisions of those public officials in charge of the police department, even though such examination may cause inconvenience or embarrassment. See 1 V.S.A. § 315 (recognizing that it is the policy of PRA “to provide for free and open examination of records,” and that “[o]fficers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment”).

¶ 10. Review of these records, the court continued, allowed the people to determine if the police department was properly managed; whether the department followed its own internal affairs investigation procedure; and whether the police department properly decided whether to conduct criminal investigations of its own employees. The court thus concluded that these records were not exempt from disclosure under § 317(c)(5).

[48 A.3d 572]

¶ 11. The court turned next to § 317(c)(7), which exempts:

personal documents relating to an individual, including information in any files maintained to hire, evaluate, promote or discipline any employee of a public agency, information in any files relating to personal finances, medical or psychological facts concerning any individual or corporation; provided, however, that all information in personnel files of an individual employee of any public agency shall be made available to that individual employee or his or her designated representative.

As the court recognized, application of this provision requires the court to balance the public interest in disclosure against the harm to the individual. See Kade v. Smith, 2006 VT 44, ¶ 14, 180 Vt. 554, 904 A.2d 1080 (mem.); Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 109, 624 A.2d 857, 863 (1993).

¶ 12. The court concluded that the balance tipped in favor of disclosure here. It found the records highly relevant to the public's interest in determining if the police department followed its own internal affairs investigation procedure, and if the police department properly decided whether to conduct criminal investigations of its own employees. The records demonstrated how investigations were commenced and conducted, and how suspensions were handed down. The court found the significance of this public interest to be of the highest degree.

¶ 13. The court found the privacy interests at stake far less weighty. While the gravity and potential consequences of the invasion of privacy occasioned by the disclosure was high, the court found that the employees could have little expectation that their actions or identities would remain private when they viewed and sent pornography on public computers while...