Reflections on an FOI Odyssey

By Brent Curtis

curtisThe legal odyssey that my newspaper and I engaged in for the last three years started not as a question about freedom of information, but as a question of whether or not a police sergeant for the city of Rutland was being criminally investigated for downloading child pornography on his work computer.

It took a judge’s ruling to get an answer to that question, as the only piece of evidence that I could find was a search warrant that had been inexplicably sealed by an out-of-county judge. The contents of the warrant and the investigation it described against an acting member of the police force was news to a lot of people — including the members of the Police Commission which oversees the department. Neither they nor any city official outside the police department had been informed that the criminal inquiry was taking place.

The stories I wrote led to the immediate suspension and eventual termination of the sergeant. The criminal investigation ended with a determination that there was insufficient evidence that the sergeant possessed child pornography. However, he was charged with neglect of duty and lying to police — offenses he later pleaded guilty too.

But the broader and perhaps more important story played out during the next three years in legal arguments over access to internal police records that would go all the way to the Vermont Supreme Court. Twice. In the end, the high court granted access to those records and outlined a test for courts to use in determining whether the public’s interest outweighs privacy rights in requests for so-called “personal” records.

State legislators also took note of the Herald’s case and — after the fact — amended a state public records exemption that previously allowed police and prosecutors to refuse access to any records “compiled in the course of a criminal investigation” indefinitely.

The newspaper’s work, which included the investment of more than $80,000 worth of legal fees, chipped away at a public records law in Vermont which is riddled with 239 exemptions. Those exemptions make access to public records a cumbersome and confusing process with all-too-often no remedy outside of a court of law for those seeking access.

If a news organization backed by legal counsel has to wage a protracted and expensive battle for access to the public record, what hope does the average citizen have?

Brent is a reporter for the Rutland Herald and the 2014 winner of NEFAC’s Freedom of Information Award.

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