Vt. high court rejects blanket exemption for police logs

The Vermont Supreme Court ruled that police dispatch logs are not automatically exempt from public disclosure as investigation records under the state’s Access to Public Records Act.

The court last week reversed a lower court ruling that police dispatch and unit logs could be withheld under an exemption in the act for “records dealing with the detection and investigation of crime.” The case has been sent back to the Windham Superior Court to review the records to determine whether they properly fall under the exemption.

“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,’” the court said. “To so hold would allow for a ‘potentially limitless’ exemption.”

The lawsuit was filed by Stephen Bain, who was arrested for possessing stolen property and marijuana in 2005. Bain accused Windham County police of unlawfully entering his home in May 2003 and unlawfully withholding records relating to that event. Bain has filed previous lawsuits relating to the alleged unlawful home entry, but all have been dismissed.

Bain said he requested “any and all computer, telephone or otherwise generated radio dispatch unit log[s] of [his] arrest and the bona fide activities of law enforcement” from Windham County Sheriff Keith Clark in 2007 but received no response. The records also were requested in 2004 by Bain’s then-attorney, according to the court opinion.

Under Vermont’s public records act, records of an initial arrest are not exempt from disclosure. However, records “maintained on any individual or compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency” can be withheld.

The Vermont Supreme Court noted it had previously ruled that arrest records and criminal citations did not fall under the exemption for investigation records, stating that though in some cases the need for police secrecy outweighs the public interest in release of the records, there is no such overriding public interest pertaining to the release of arrest records.

“There is a strong public interest in disclosure of public records, and this interest ‘is particularly acute in the area of law enforcement,’” the court said. “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.’”

The court said the lower court's evaluation of whether the police logs are exempt as investigation records should be guided by specific criteria: whether the logs contain information that may “‘endanger the state’s position in criminal prosecutions’ or ‘reveal the names of informants,’ or other information that might ‘threaten to intimidate potential witnesses,’ such as ‘speculations of a suspect’s guilt, officers’ views as to the credibility of witnesses, statements by informants, . . . or blood and other laboratory tests.’”

Vermont Assistant Attorney General Mark DiStefano said he thought the court ruling was an attempt to reject a blanket ruling from both sides of the argument.

“What the court appears to be saying is ‘We’re not prepared to say police logs will never be exempt, but we’re not prepared to say police logs will not be exempt,” he said. “What it’s basically saying is police logs may be exempt if they contain information that is exempt in other areas.”

Rose Cavanagh, executive director of the New England First Amendment Coalition, said she was pleased with the court’s decision.

“It seems that it's the first step toward clarifying the law,” she said.

Related Reporters Committee resources:

· News: Vermont governor signs public records bill

· News: Vt. proposal to examine open record exclusions

· Vermont – Open Government Guide: N. Police records.