Herald v. Vt. State Police & Office of the Attorney Gen.

• Decision Date: 30 March 2012
• Docket Number: No. 10–434.,10–434.
• Citation: 2012 VT 24,40 Media L. Rep. 1684,49 A.3d 91
• Court: Vermont Supreme Court
• Parties: RUTLAND HERALD v. VERMONT STATE POLICE and Office of the Attorney General.

49 A.3d 91

40 Media L. Rep. 1684

2012 VT 24

RUTLAND HERALD

v.VERMONT STATE POLICE and Office of the Attorney General.

No. 10–434.

Supreme Court of Vermont.

March 30, 2012.

Robert B. Hemley and Matthew B. Byrne of Gravel and Shea, P.C., Burlington, for Plaintiff–Appellant.

William H. Sorrell, Attorney General, and Mark J. Di Stefano, Assistant Attorney General, Montpelier, for Defendants–Appellees.

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

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

SKOGLUND, J.

¶ 1. This case concerns public access to records that newspaper plaintiff Rutland Herald believes are of intense public interest: material related to a criminal investigation of possession of child pornography by employees of the Criminal Justice Training Council at the Vermont Police Academy. The Herald appeals from a trial court decision granting summary judgment to defendants, the Vermont State Police (VSP) and the Office of the Attorney General (collectively “the State”), and denying disclosure of the records under the Access to Public Records Act (PRA), 1 V.S.A. §§ 315–320. The court concluded that the records sought by the Herald, which included inquest records, were exempt from disclosure as “records dealing with the detection and investigation of crime” under § 317(c)(5). It added that the inquest materials were also exempt under § 317(c)(1) as “records which by law are designated confidential.” We affirm the court's decision.

¶ 2. The material facts are undisputed. In January 2010, the VSP opened an investigation into possible criminal conduct involvingemployees of the Training Council. The VSP had been alerted to the possibility of criminal conduct by the Vermont Department of Human Resources (VDHR), which was conducting an employment-related investigation into the matter following the discovery of suspicious material on the work computer of employee David McMullen. Inappropriate emails were also apparently discovered on other employees' work computers. The employees' work computers were secured, and the VSP also seized computer equipment from McMullen's home. The following day, McMullen committed suicide. As a result, the VSP conducted an investigation into his death.

¶ 3. The VSP compiled several files during the course of its investigations, which included inquest-related material. When its investigations were complete, the VSP submitted its files to the Office of the Attorney General for prosecutorial review. The Attorney General declined to commence a prosecution, finding no criminal conduct by anyone other than McMullen.

¶ 4. In July 2010, the Herald made a public records request to the VSP and to the Attorney General, seeking disclosure of materials related to the investigations of McMullen and other unnamed employees. The parties stipulated that the Herald sought access to both the criminal and death investigation files. The VSP denied the request, asserting that its files were exempt from disclosure under § 317(c)(5). The Attorney General denied the request on similar grounds, adding that the inquest materials were also exempt under § 317(c)(1) as records designated confidential by law.

¶ 5. The Herald filed suit in August 2010 and immediately requested summary judgment in its favor. The State opposed the Herald's request and filed a cross-motion for summary judgment. At the court's request, the State produced the withheld material for in camera review. Following oral argument and in camera review, the court granted summary judgment to the State. It concluded, with two minor exceptions,¹ that the records at issue related to the investigation of possible criminal activity and included “no material related to policy, employment practices, or other activities not directly related to a specific investigation.” The court noted that § 317(c)(1) offered an additional ground for shielding the inquest materials from public view.

¶ 6. In reaching its conclusion, the court rejected the Herald's argument that because any investigation of McMullen ended with his suicide, there was no basis for a continuing exemption to disclosure. The court similarly rejected the Herald's contention that the phrase “compiled in the course of a criminal ... investigation” in § 317(c)(5) meant that any exception to disclosure was limited to the duration of the investigation. The court concluded that the statutory language contained no time limit and that it instead contemplated an “open-ended period of confidentiality.” The Herald now appeals from the court's decision.

¶ 7. We review a grant of summary judgment de novo, using the same standard as the trial court. Shlansky v. City of Burlington, 2010 VT 90, ¶ 6, 188 Vt. 470, 13 A.3d 1075. Summary judgment is appropriate if there are no issues of material fact and a party is entitled to judgment as a matter of law. Id.;V.R.C.P. 56(c)(3).

¶ 8. As we have repeatedly recognized, the PRA represents “a strong policy favoring access to public documents and records.” Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 10, 177 Vt. 287, 865 A.2d 350. The PRA's statement of policy specifically provides that:

It is the policy of this subchapter to provide for free and open examination of records consistent with Chapter I, Article 6 of the Vermont Constitution. Officers 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. All people, however, have a right to privacy in their personal and economic pursuits, which ought to be protected unless specific information is needed to review the action of a governmental officer. Consistent with these principles, the general assembly hereby declares that certain public records shall be made available to any person as hereinafter provided. To that end, the provisions of this subchapter shall be liberally construed with the view towards carrying out the above declaration of public policy.

1 V.S.A. § 315.

¶ 9. The public interest in knowing what the government is doing “is particularly acute in the area of law enforcement.” Caledonian Record Publ'g Co. v. Walton, 154 Vt. 15, 21, 573 A.2d 296, 299 (1990). Of course, the State also has “significant interests in protecting the public from criminal activity, prosecuting those who commit crimes, and protecting the privacy rights of individual citizens,” and “[t]hese interests may, at times, override the interest in public disclosure.” Id. at 21, 573 A.2d at 300. We construe exemptions in the PRA “strictly against the custodians of records,” and resolve any doubts “in favor of disclosure.” Wesco, 2004 VT 102, ¶ 10, 177 Vt. 287, 865 A.2d 350. The burden of demonstrating that a record is covered by an exemption “is on the agency seeking to avoid disclosure.” Id.

¶ 10. Section 317(c)(5) specifically exempts the following material from disclosure:

[R]ecords 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.

As stated above, the trial court inspected the records here and concluded that they were “records dealing with the detection and investigation of crime.” The Herald has not challenged this threshold determination, and we accept the trial court's characterization of these records.²

¶ 11. We thus turn to the Herald's statutory arguments. The Herald asserts that disclosure is appropriate because the investigation is complete, and the public interest favors disclosure. Citing Walton, 154 Vt. at 19, 573 A.2d at 299, the Herald contends that this Court has narrowly construed § 317(c)(5) in the past and found that the statute contains a “time-based” element. To achieve a narrow construction in this case, the Herald urges us to apply a balancing test as in Trombley v. Bellows Falls Union High School District No. 27, and weigh “the right of persons ‘to privacy in their personal ... pursuits' against the need for ‘specific information ... to review the action of a governmental officer.’ ” 160 Vt. 101, 109–10, 624 A.2d 857, 863 (1993) (citing 1 V.S.A. § 315). The Herald maintains that there are no privacy interests at stake because the target of the investigation has been identified and is dead, and the remaining employees have no expectation of privacy in an investigative report of their on-the-job behavior. It argues that the completion of the investigation heightens the public interest in the matter. The Herald cites cases from other jurisdictions that allow the release of similar material.

¶ 12. In construing § 317(c)(5), our primary goal is “to discern and give effect to the intent of the Legislature.” State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996). We look first to the plain meaning of statutory language, and if the plain meaning resolves the interpretation issue, we generally look no further. Sawyer v. Spaulding, 2008 VT 63, ¶ 7, 184 Vt. 545, 955 A.2d 532 (mem.). As discussed below, we find no support for the imposition of either a time-based limitation or a balancing test in the plain language of § 317(c)(5). The language instead reflects the Legislature's intent to permanently and categorically exempt all criminal investigatory records from public disclosure.

¶ 13. As set forth above, the statute 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.” 1 V.S.A. § 317(c)(5) (emphases added). Investigation records are “maintained” or kept on individuals on an ongoing basis, after active “detection...