By LISA RATHKE / Reformer staff / Associated Press
Saturday March 3, 2012
BRATTLEBORO — The Vermont Supreme Court ruled Friday that police dispatch logs are not exempt from the state’s public records act.
Stephen Bain, who was convicted of possessing stolen property and marijuana in 2005, had sued to get dispatch and unit logs from Windham County Sheriff Keith Clark. The lower court had dismissed the suit, saying the records were exempt from disclosure because they dealt with “the detection and investigation of a crime.”
But the Supreme Court on Friday reversed that decision and sent the case back to Windham Superior Court in Newfane.
“We cannot assume, consistent with the purpose of the PRA, that simply because the records at issue were generated by a law enforcement agency, they necessarily are records ‘dealing with the detection and investigation of a crime,’” the court said in its unanimous decision.
Bain had filed a number of lawsuits against Clark and others, including Windham County State’s Attorney Tracy Shriver, saying police had unlawfully entered his home after his May 2003 arrest. All the lawsuits were dismissed.
In 2004, his attorney sought state police and sheriff radio log, dispatcher log, computer log and any other computer generated or automobile related logs from May 22 and May 23, 2003.
Bain said he requested the documents from Clark but got no response.
In a motion to dismiss the lawsuit, Clark argued that the documents fell under the detection and investigation of a crime exemption in the public records act which includes “records maintained on any individual or complied in the course of a criminal or disciplinary investigation by any police or professional licensing agency.”
But according to the Public Records Act, records relating to the management and direction of a law enforcement agency and records reflecting the initial arrest of a person and the charge shall be public.
Windham Superior Court Judge John Wesley dismissed Bain’s complaints and granted Clark’s motion from injunctive relief, declaring Bain a “vexatious litigant” barring him from continuing to sue Clark for claims from his 2005 conviction without first getting the court’s approval.
Bain appealed to the Vermont Supreme Court.
On Friday, the justices said since they didn’t know what was in the records, or if they even exist, they could not determine if they were exempt.
“Assuming these radio dispatch and unit logs do exist, we cannot discern from the record precisely what information they might contain. We thus cannot determine if they are records ‘dealing with the detection and investigation of crime’ and therefore exempt from disclosure …” wrote the court.
“We are thus left to wonder, do these records exist?” wrote the court. “If not, why haven’t defendants relied on this position to defeat Bain’s claim? If they do exist, why did the Sheriff’s Office say otherwise in 2004?
“Assuming these radio dispatch and unit logs do exist, we cannot discern from the record precisely what information they might contain,” continued the court. “We thus cannot determine if they are records ‘dealing with the detection and investigation of crime’ and therefore exempt from disclosure … We cannot assume, consistent with the purpose of the PRA, that simply because the records at issue were generated by a law enforcement agency, they necessarily are records ‘dealing with the detection and investigation of crime.’ To so hold would allow for a ‘potentially limitless’ exemption.”
As the Legislature intended, wrote the court, the PRA must be “liberally construed with the view towards carrying out” its legislative purpose of allowing “free and open examination of records ….”
Clark said he had not read the decision and therefore could not comment. A lawyer representing him could not be reached for comment. Shriver also had no comment on the decision.
Dan Barrett, staff attorney for the Vermont Civil Liberties Union, said the Supreme Court ruled that to determine whether a record needs to be kept from public view, a judge needs to actually see the records and decide on a case-by-case basis.
He said this is the first time in the history of the Public Records Act that the exemption dealing with detection and investigation of crimes has been interpreted.
“The defendants were saying all this stuff is off limits and nobody can have it,” said Barrett. “But the Supreme Court said no.”
The court ruled it’s up to the trial court, not the agency holding the records, to determine if they hold information that might endanger an investigation, imperil informants or hinder the state’s ability to prosecute a crime.
The Supreme Court’s decision might indicate how it could rule in other public records cases it is hearing, most notably Galloway v. Hartford and two suits filed by the Rutland Herald.
“The court’s decision shuts down the idea that there is a blanket exemption for law enforcement records,” said Barrett.
“This is a great decision for transparency and police accountability,” said Allen Gilbert, executive director of the ACLU of Vermont. “We are glad that the court recognized that withholding police records from the public is the exception and not the rule in Vermont.”
Attorney General Bill Sorrell, whose office helped defend Clark, said he was happy with the decision, because it prevents the disclosure of records that could affect an investigation. However, it also cleared up a gray area in the PRA.
“If there is no confidential information in the records or you are not protecting the people’s privilege or prejudicing the investigation, they should be released,” said Sorrell.
Secretary of State Jim Condos was also happy with the Supreme Court’s decision.
“This decision is good for Vermont and its good for its citizens,” he said. “They didn’t buy the catchall that everything falls under the detection and investigation of a crime exemption.”
Reformer staffer Bob Audette contributed to this report. Original Article.