(Last updated Sept. 21, 2022)
The Vermont Constitution states that, with the power coming from the people, public officials are “at all times, in a legal way, accountable” to those they represent. (1) Adhering to the spirit of the Constitution, the legislature indicated the intent behind the 1975 Public Records Act was to facilitate free and open examination of public records and for courts to construe exemptions against the state, resolving doubts in favor of transparency. (2)
The Public Records Act (3), however, is often abused. Typically, the names of officers about whom complaints are filed and the details of the complaint become public if a state board decides to impose discipline. (4) But this disclosure doesn’t always occur. Section 317 of the Public Records Act also makes transparency in the Green Mountain State difficult. This section lists 43 types of records exempt from public inspection and copying — and that’s not counting the hundreds of other exemptions scattered across Vermont statutes.
Specifically, § 317(c)(7) exempts personal documents and personnel files from disclosure when they contain information “maintained to hire, evaluate, promote, or discipline any employee of a public agency[.]” (5) Law enforcement agencies within Vermont routinely take advantage of this exemption to withhold misconduct records.
A 2013 Vermont Supreme Court decision helps, to some degree, keep that secrecy in check. In Rutland Herald v. City of Rutland, the Herald requested records from the city pertaining to an internal investigation of Rutland Police Department employees on three different occasions. (6) The newspaper also sought disciplinary records against the city’s Department of Public Works employees. (7) Relying on its 2006 decision in Kade v. Smith, which involved a request for employee evaluation reports from the state’s Department of Corrections, the court found that the exemption in § 317(c)(7) can only be applied when the privacy of individuals is implicated in a way that subjects them to “embarrassment, harassment, disgrace, or loss of employment or friends.” (8)
The Kade court determined that the categories “personal documents” and “personnel files” were too broad for any record to be categorically exempt under the Public Records Act. (9) Instead, there must be a balancing test to determine whether individual privacy interests outweigh the public’s interest in disclosure. More specifically, according to the Rutland Herald court, the following must be considered when determining whether a police misconduct report should be released under the Public Records Act:
1. What is the significance of the public interest?
2. What is the type and gravity of the consequence to the invasion of the individual’s privacy?
3. Are there other ways to get the requested information?
These considerations must be applied due to the weighty interest in the public knowing how its law enforcement officers are supervised and disciplined. (10) The Rutland Herald court found that the privacy interests of individual officers or their respective agency could not overpower the public’s interest in keeping the agencies accountable and exposing “systemic infirmity” as evidenced by the pervasive and repeated instances of misconduct. (11) This balancing test, the court held, must always be applied and is tipped in favor of disclosure before law enforcement agencies can apply § 317(c)(7). (12)
Also helping the effort to bring transparency to law enforcement agencies in the state is the National Decertification Index. (13) Since 2013, Vermont has maintained a public list of every officer decertified in the state; this list, in turn, is linked from the National Decertification Index. (14) The list contains the names of those officers who are now decertified, the date on which they were decertified, the last agency they worked for, and the general reason for their decertification. (15) The list, however, fails to provide any additional details, leaving the public uninformed about the process by which those officers were disciplined and how long their misconduct went unaddressed.
(1) See VT. CONST. Ch. 1, Art. 6.
(2) See Rutland Herald v. City of Rutland, 195 Vt. 85, 90 (2013); Kade v. Smith 180 Vt. 554, 557 (2006).
(3) See 1 VT. STAT. ANN. §§ 315-320 (2022).
(4) Kallie Cox and William Freivogel, Analysis of Police Misconduct Record Laws in All 50 States, ASSOCIATED PRESS, (May 12, 2021).
(5) See 1 VT. STAT. ANN. § 317 (2022).
(6) See Rutland Herald, 195 Vt. at 87.
(8) See Rutland Herald, 195 Vt. at 90; Kade, 180 Vt. at 557.
(9) See Rutland Herald, 195 Vt. at 90.
(10) Id. at 91.
(12) Id. at 94.
(13) See NDI Expansion Project (Last visited July. 14, 2022).
(15) Kallie Cox and William Freivogel, Analysis of Police Misconduct Record Laws in All 50 States, ASSOCIATED PRESS, (May 12, 2021).