Shlansky v. City of Burlington

• Decision Date: 01 October 2010
• Docket Number: No. 09–291.,09–291.
• Citation: 2010 VT 90,13 A.3d 1075
• Parties: David J. SHLANSKYv.CITY OF BURLINGTON and Burlington Police Department.
• Court: Vermont Supreme Court

13 A.3d 1075
2010 VT 90

David J. SHLANSKY
v.
CITY OF BURLINGTON and Burlington Police Department.

No. 09–291.

Supreme Court of Vermont.

Oct. 1, 2010.

[13 A.3d 1077]

Justin E. Kolber and David J. Shlansky of Shlansky & Co., LLP, Vergennes, for Plaintiff–Appellant.Richard W. Haesler, Jr., Office of the City Attorney, Burlington, for Defendants–Appellees.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.SKOGLUND, J.

¶ 1. In this Access to Public Records Act case, plaintiff appeals the trial court's grant of summary judgment to defendants, the City of Burlington and the Burlington Police Department (collectively “the City”). The trial court concluded that the City lawfully withheld certain records as relevant to plaintiff's ongoing traffic court case. Plaintiff argues that summary judgment was inappropriate because the factual record is inadequate, and, in any event, the documents are not relevant to his traffic court case or would be discoverable in that forum. Plaintiff also argues that the City failed to timely respond to his request and wrongfully withheld records. We affirm in part and remand in part for further findings consistent with this opinion.

¶ 2. The underlying facts are uncontested. On June 25, 2008, plaintiff received a speeding ticket on Route 7 in Burlington. On September 18, 2008, plaintiff sent a public records request to the City requesting twenty-one items, including: documents related to plaintiff's traffic ticket; documents about speed recording devices; the citing officer's employment history and performance records; engineering studies and history concerning the speed limits on Route 7 and elsewhere in Burlington; and documents governing general police procedures as well as more specific protocols for stopping vehicles and issuing tickets. On September 19, 2008, plaintiff filed a motion for discovery in the judicial bureau. In his request, plaintiff notified the judicial bureau that he had sent a public records request to defendants. On September 24,

[13 A.3d 1078]

the hearing officer denied the discovery request, in part, explaining:

Discovery is the exception and should not defeat the summary nature of the proceedings. The officer shall provide Mr. Shlansky a copy of the certificate of accuracy and operator manual for any speed measurement device pertinent to this case.... Otherwise, the request for permission to conduct discovery is denied....

This order does not affect Mr. Shlansky's access to records otherwise available under Vermont's public records law.

Mr. Shlansky may raise evidentiary issues at the merits hearing and renew any request for discovery/continuance at that time.

Following this order, plaintiff successfully moved to continue the judicial bureau proceedings. Plaintiff's speeding ticket case remains unresolved.

¶ 3. Meanwhile, on October 9, 2008, in response to the public records request, defendants, through the Burlington Police Department, denied disclosure of all the documents plaintiff sought, asserting they were exempt as records relevant to plaintiff's pending traffic court case under the Public Records Act's litigation exception. The litigation exception, 1 V.S.A. § 317(c)(14), exempts “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.” Plaintiff appealed the blanket denial to the Chief of Police on October 13, 2008. See 1 V.S.A. § 318(c). Pursuant to the appeal, on October 17, 2008, the Chief of Police, citing the need to distinguish “general requests for public records of the City of Burlington from more specific requests concerning the 5:07 a.m. traffic stop of [plaintiff],” disclosed some items, indicated others did not exist, and upheld the denial of certain others under 1 V.S.A. § 317(c)(14). In his response, the Chief of Police noted:

We are sensitive to the concern that pending litigation of traffic tickets is on-going and ever-present for the City of Burlington and that a strict reading of [the case law], temporarily restricting all public records requests involving traffic tickets, the Officers involved in the ticketing and the locales, i.e. city streets, could effectively bar public records requests around all traffic concerns.

¶ 4. On October 23, 2008, plaintiff filed suit in superior court, arguing that the City failed to timely respond to his request and improperly withheld public records. In November 2008, the court ordered the City to produce an itemized list of the withheld information. The City complied. Among the items the City continued to withhold pursuant to the litigation exception were: documents specifically related to plaintiff's June 25, 2008 traffic stop, including an incident report, ticket history, motor vehicle record, and an audio recording; documents related to the citing officer and his personnel record, including training reports, certificates and awards, a job description, correspondence, evaluations, and citizen complaints; and a Burlington Police Department Department Directive titled “Command Protocol & Department Rules.” The City also specified that the request for documents concerning the setting of speed limits on the part of Shelburne Road within Burlington city limits was denied due to the pending litigation between the parties but also asserted that those same documents were “completely irrelevant to Mr. Shlansky's pending litigation.” The City did provide a copy of a Department Directive titled “Traffic Enforcement

[13 A.3d 1079]

—Detecting Violators.” Plaintiff then moved to compel defendants to file a more complete index regarding his ninth request—covering all documents concerning the setting of speed or traffic ordinances—arguing that the first index was not detailed enough to demonstrate which documents were withheld. The trial court denied this request, indicating that it needed to examine all of the facts of the case before determining if more information was necessary.

¶ 5. The parties filed cross-motions for summary judgment. The trial court granted the City summary judgment, concluding that plaintiff's records request “falls squarely within the [litigation] exemption” of the Public Records Act. The court found that “the substance and timing of the record request in this case, as well as [plaintiff's] repeated requests while this matter has been pending to delay the traffic court case, makes clear [plaintiff's] purpose is to obtain records for use in that case.” The court held that plaintiff could not use the Public Records Act to obtain records that were denied through the discovery process. Plaintiff now appeals.

¶ 6. In reviewing a grant of summary judgment, this Court uses the same standard as the trial court. Sawyer v. Spaulding, 2008 VT 63, ¶ 6, 184 Vt. 545, 955 A.2d 532 (mem.). Summary judgment is appropriate only when there are no issues of material fact and a party is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3). The issue of law before the trial court was the applicability of the litigation exception of the Public Records Act to the withheld documents. The Act demonstrates “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. Exceptions are construed “strictly against the custodians of records.” Id. “The burden of showing that a record falls within an exception is on the agency seeking to avoid disclosure.” Id.

¶ 7. Plaintiff argues that the documents are not exempt because they are not relevant to the litigation, or are discoverable in the traffic court case.¹ Plaintiff misapprehends the purpose of the litigation exception.

¶ 8. Vermont's Public Records Act is not meant to allow an end-run around discovery rules or determinations. Despite the broad policy of facilitating public access to government records, the statute specifically carves out an exception for documents “relevant to litigation to which the public agency is a party of record.” 1 V.S.A. § 317(c)(14). Here, the outcome of plaintiff's document request hinges specifically on the applicability of the litigation exception to the withheld items and, more generally, on the meaning of the term “relevant” in the context of this exemption. In construing any law, our primary purpose is to implement legislative intent. Delta Psi Fraternity v. City of Burlington, 2008 VT 129, ¶ 7, 185 Vt. 129, 969 A.2d 54. “We effectuate this intent by first examining the plain meaning of the language...