2012 VT 26


Rutland Herald v. City of Rutland
and AFSCME Council 93, Local 1201 (2010-344)
 
2012 VT 26
 
[Filed 06-Apr-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street,
Montpelier, Vermont 05609-0801 of any errors in order that corrections may be
made before this opinion goes to press.
 
 

2012 VT 26

 

No. 2010-344

 

Rutland Herald


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Rutland Unit,


 


Civil Division


 


 


City of Rutland and AFSCME
  Council 93, Local 1201


March Term, 2011


 


 


 


 


William
  D. Cohen, J.


 

Robert B. Hemley and Matthew B. Byrne of Gravel and Shea,
Burlington, for Plaintiff-Appellee.
 
Andrew Costello, Office of the City Attorney, Rutland, for
Defendant-Appellant.
 
Michael Blair, Rutland, for Intervenor-Appellant AFSCME
Council 93, Local 1201.
 
William H. Sorrell, Attorney General, and Mark J. Di
Stefano, Assistant Attorney General,
  Montpelier, for Amicus Curiae State of Vermont.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
REIBER, C.J.  In this case, we again confront the proper
scope of the investigatory records exemption under the Vermont Access to Public
Records Act (PRA), 1 V.S.A. § 317(c)(5).  At issue are documents that
relate to the investigation and discipline of City of Rutland employees for
viewing pornography, including possible child pornography, at work.  The
City challenges a superior court order requiring it to disclose certain
documents to plaintiff Rutland Herald.  AFSCME Council 93, Local 1201, the
bargaining agent for non-managerial employees of the Police Department and the
Department of Public Works (DPW), also appeals.  The State of Vermont has
filed an amicus brief.  
¶ 2.            
The City argues that the documents at issue are exempt under
§ 317(c)(5) as records “compiled in the course of a criminal or
disciplinary investigation by any police or professional licensing agency,” and
under 1 V.S.A. § 317(c)(7) as “personal documents relating to an
individual.”  AFSCME is concerned with documents that relate to the
imposition of discipline in 2004 against two DPW employees for viewing
pornography at work, and the imposition of discipline in 2007 against a police
officer on similar grounds.  AFSCME maintains that these records should be
exempt under § 317(c)(7).  We affirm in part, and reverse and remand
in part.  
¶ 3.            
The superior court found the following facts undisputed.  The
Herald has been investigating whether city police officers have been viewing
pornography at work.  In February 2010, the Herald obtained access to a
September 2009 search warrant, which indicated that police department computers
had been used to view and store pornography.  The day after the warrant materials
were unsealed, a police officer was placed on administrative leave. 
Through a public records request, the Herald determined that the officer was
Sergeant David Schauwecker and that he was the target of a child pornography
investigation.  The Herald published articles identifying Schauwecker and
discussing the investigation.  At a public meeting, the police chief
stated that he had not suspended Schauwecker any sooner because he did not have
sufficient information to do so.  Schauwecker was subsequently fired by
the board of civil authority.  
¶ 4.            
In connection with its investigation, the Herald requested documents
from the City under the PRA.  As relevant here, the City refused to
produce the following records: (1) a 2004 letter from the police chief to “RPD
employee #1” regarding the employee’s status pending completion of an internal
affairs investigation based on an allegation of viewing pornography on duty;
(2) a 2004 letter from the chief to RPD employee #1 regarding the chief’s
imposition of discipline for viewing pornography on duty; (3) the complete
record of the internal affairs investigation with respect to RPD employee #1;
(4) a 2010 letter from the chief to “RPD employee #2” regarding the imposition
of discipline for viewing pornography on duty; (5) the complete record of the
internal affairs investigation of RPD employee #2; (6) a letter from the chief
to Schauwecker informing him of the chief’s recommendation to the board of
civil authority as to his termination; (7) a letter from the chief informing
Schauwecker of an upcoming meeting regarding his employment; (8) the complete
record of the internal affairs investigation dealing with Schauwecker’s alleged
viewing of pornography while on duty; (9) a January 2007 letter from the DPW
Commissioner to “DPW employee #1” setting forth the Commissioner’s imposition
of discipline for violation of the City’s internet usage policy; and (10) a
similar January 2007 letter to “DPW employee #2.”  The City asserted that
items (1)-(8) were exempt under both § 317(c)(5) and § 317(c)(7), and that
items (9) and (10) were exempt under § 317(c)(7).  
¶ 5.            
Unable to procure these documents by request, the Herald filed suit and
moved for summary judgment in its favor.  AFSCME moved to intervene and to
dismiss the case.  AFSCME asserted that disclosure of employee
disciplinary records would violate the employees’ rights to privacy and
confidentiality.  The City produced a Vaughn index of the withheld
documents and provided copies of the documents for in camera review.  
¶ 6.            
Following a hearing and in camera review, the court issued a decision
directing that the documents be released with certain redactions.  At the
outset, the court acknowledged the “strong policy favoring access to public records
and documents.”  Springfield Terminal Ry. Co. v. Agency of Transp.,
174 Vt. 341, 345, 816 A.2d 448, 452 (2002).  It noted as well that PRA
exemptions are construed strictly against the custodian of such records, and
that the custodian must do more than provide “conclusory claims or pleadings”
to establish that the exemption applies.  Finberg v. Murnane, 159
Vt. 431, 438, 623 A.2d 979, 983 (1992); see also 1 V.S.A. § 319(a)
(agency bears burden of justifying its decision to deny access).  
¶ 7.            
With these principles in mind, the court first considered whether items
(1)-(8) were exempt from disclosure under § 317(c)(5).  That provision
exempts: 
records
dealing with the detection and investigation of crime, including those
maintained on any individual or compiled in the course of a criminal or
disciplinary investigation by any police or professional licensing agency;
provided, however, records relating to management and direction of a law
enforcement agency and records reflecting the initial arrest of a person and
the charge shall be public.
 
Id.[1]  The court did not address, as a
threshold matter, whether the documents were “records dealing with the
detection and investigation of crime.”  Instead, it focused on whether
they were records “maintained on any individual or compiled in the course of a
criminal or disciplinary investigation by any police . . . agency.”  
¶ 8.            
Construing § 317(c)(5) narrowly, the court found that it applied only during
the “course of” an investigation, and not, as in this case, when an
investigation was complete.  The court thus concluded that items (1)-(8)
were not exempt from disclosure under this provision.  
¶ 9.            
The court also found that these records related directly to the
“management” of the police department, and therefore were also disclosable
under the proviso language of § 317(c)(5).  The court explained that
the records demonstrated how the police department investigated its own employees—officials
who were entrusted by the people to investigate crimes and were given the power
to arrest.  It reasoned that the people of Vermont have the right to
review the decisions of those public officials in charge of the police
department, even though such examination may cause inconvenience or
embarrassment.  See 1 V.S.A. § 315 (recognizing that it is the policy of
PRA “to provide for free and open examination of records,” and that “[o]fficers
of government are trustees and servants of the people and it is in the public
interest to enable any person to review and criticize their decisions even
though such examination may cause inconvenience or embarrassment”).  
¶ 10.        
Review of these records, the court continued, allowed the people to
determine if the police department was properly managed; whether the department
followed its own internal affairs investigation procedure; and whether the
police department properly decided whether to conduct criminal investigations
of its own employees.  The court thus concluded that these records were
not exempt from disclosure under § 317(c)(5).  
¶ 11.        
The court turned next to § 317(c)(7), which exempts:
personal
documents relating to an individual, including information in any files
maintained to hire, evaluate, promote or discipline any employee of a public
agency, information in any files relating to personal finances, medical or
psychological facts concerning any individual or corporation; provided,
however, that all information in personnel files of an individual employee of
any public agency shall be made available to that individual employee or his or
her designated representative. 
 
As the court recognized,
application of this provision requires the court to balance the public interest
in disclosure against the harm to the individual.  See Kade v. Smith,
2006 VT 44, ¶ 14, 180 Vt. 554, 904 A.2d 1080 (mem.); Trombley v.
Bellows Falls Union High Sch., 160 Vt. 101, 109, 624 A.2d 857, 863
(1993).  
¶ 12.        
The court concluded that the balance tipped in favor of disclosure
here.  It found the records highly relevant to the public’s interest in
determining if the police department followed its own internal affairs
investigation procedure, and if the police department properly decided whether
to conduct criminal investigations of its own employees.  The records
demonstrated how investigations were commenced and conducted, and how
suspensions were handed down.  The court found the significance of this
public interest to be of the highest degree.
¶ 13.        
The court found the privacy interests at stake far less weighty. 
While the gravity and potential consequences of the invasion of privacy
occasioned by the disclosure was high, the court found that the employees could
have little expectation that their actions or identities would remain private
when they viewed and sent pornography on public computers while on duty as
public employees.  It reasoned that they had no legitimate reasonable
expectation of privacy in records that concerned how they discharged their
official duties.  The court thus found little, if any, privacy interest
involved, and it held that the records were not exempt from disclosure under §
317(c)(7).  
¶ 14.        
In reaching its conclusion, the court rejected the City’s assertion that
it should redact the names of the officers and their suspension dates.  It
found that the public had a significant interest in learning the suspension
dates to review if the police department actually suspended the employees; to
review how long the investigations took; and to review how soon the employees
were suspended after the findings of misconduct.  This information was
vital, the court explained, in ensuring “that both the activity of public
employees suspected of wrongdoing and the conduct of those public employees who
investigate the suspects is open to public scrutiny.”  City of Baton
Rouge/Parish of E. Baton Rouge v. Capital City Press, 4 So. 3d 807, 821
(La. Ct. App. 2008) (citation omitted).  
¶ 15.        
The court next considered the disciplinary letters sent to the DPW
employees (items (9) and (10)).  These letters stated that the employees
in question were suspended for violating the City’s computer usage policy, but
they did not identify the particular infraction.[2]  There were no investigation records
accompanying these documents.  Unlike the police department documents,
therefore, the court had no context in which to evaluate the discipline of
these employees.  This made it difficult for the court to weigh the public
interest in disclosure.  The court found that the letters shed no light on
the operations of the DPW, the work-related conduct of its employees, or the
expenditure of public funds.  
¶ 16.        
Nonetheless, the court found that the public had an interest in knowing
about computer abuse by public employees using public resources. 
Consistent with its earlier analysis, the court also found that these employees
had little, if any, privacy interest in their use of public computers while on
duty as public employees.  Without further context, however, the court
considered it appropriate to redact the employees’ names and suspension
dates.  For the reasons set forth above, the court also rejected AFSCME’s
arguments regarding § 317(c)(7).  
¶ 17.        
As part of its decision, the court withheld 121 documents that contained
images of possible child pornography.  The court stated, however, that the
Herald could review these documents in chambers with its counsel and a law
enforcement expert present.  The court did not identify the purpose of
such review, nor did it cite any legal authority in support of its decision to
allow the Herald to view these documents.  The City appealed from the
court’s final order, as did AFSCME.[3] 

¶ 18.        
On appeal, the City reiterates its position that items (1)-(8) are
exempt from public access under §§ 317(c)(5) and 317(c)(7).  The State, as
amicus, asserts that we should not reach the arguments concerning
§ 317(c)(5) because the trial court erroneously assumed that the City did
not have to make a threshold showing that the records dealt with the detection
and investigation of crime.  The State also asserts that allowing the
Herald to review certain withheld records in chambers is inconsistent with the
PRA and is otherwise contrary to public policy.  Finally, AFSCME argues
that the trial court erred in balancing the privacy interests of the employees
involved in the 2004 and 2007 incidents against the public’s interest in viewing
the records at issue.  
¶ 19.        
We review a grant of summary judgment de novo, using the same standard
as the trial court.  Shlansky v. City of Burlington, 2010 VT 90, ¶
6, 188 Vt. 470, 13 A.3d 1075.  Summary judgment is appropriate if there
are no issues of material fact and a party is entitled to judgment as a matter
of law.  Id.; V.R.C.P. 56(c)(3).
¶ 20.        
We begin with items (1)-(8).  With respect to the applicability of
§ 317(c)(5), we agree with the State that as a threshold matter, the City must
prove and the trial court must find that the records “deal[] with the detection
and investigation of crime.”  Id. (emphasis added). 
Because this critical finding is absent, we reverse and remand for further
proceedings.[4]   

¶ 21.        
As set forth above, § 317(c)(5) exempts from disclosure:
records
dealing with the detection and investigation of crime, including those
maintained on any individual or compiled in the course of a criminal or
disciplinary investigation by any police or professional licensing agency;
provided, however, records relating to management and direction of a law
enforcement agency and records reflecting the initial arrest of a person and
the charge shall be public.
 
In
construing § 317(c)(5), our primary goal is “to discern and give effect to the
intent of the Legislature.”  State v. O’Neill, 165 Vt. 270, 275,
682 A.2d 943, 946 (1996).  We look first to plain meaning of statutory
language, and if the plain meaning resolves the interpretation issue, we
generally look no further.  Sawyer v. Spaulding, 2008 VT 63,
¶ 7, 184 Vt. 545, 955 A.2d 532.
¶ 22.        
The language of § 317(c)(5) plainly requires that records “deal[] with the
detection and investigation of crime” to fall within this exemption.  Only
when this requirement is satisfied can such records “includ[e] those maintained
on any individual or compiled in the course of a criminal or disciplinary
investigation by any police or professional licensing agency.”  Id. 
The City did not aver that these documents dealt with the detection and
investigation of crime here. 
¶ 23.        
The statute recognizes that the police department, like any other public
agency, might investigate and discipline its employees for workplace
infractions that do not necessarily constitute criminal conduct.  Other
types of disciplinary investigations might be tied in with a criminal
investigation.  The Legislature intended to exclude records involving the
latter type, presumably to protect the integrity of the law enforcement and
prosecutorial function.  See Caledonian-Record Publ’g Co. v. Walton,
154 Vt. 15, 23, 573 A.2d 296, 300-01 (1990) (drawing distinction between arrest
records and records “dealing with the detection and investigation of crime,”
and noting that policy reasons for protecting the latter include need to
protect state’s position in criminal prosecutions by shielding material that
may be used to disadvantage of prosecution, such as speculation about a
suspect’s guilt or an officer’s view as to credibility of witnesses, or
information that might reveal the names of informants and threaten to
intimidate potential witnesses); see also Bougas v. Chief of Police of
Lexington, 354 N.E.2d 872, 876 (Mass. 1976) (noting that one purpose
underlying investigatory materials exemption is “avoidance of premature
disclosure of the Commonwealth’s case prior to trial, the prevention of the
disclosure of confidential investigative techniques, procedures, or sources of
information, the encouragement of individual citizens to come forward and speak
freely with police concerning matters under investigation, and the creation of
initiative that police officers might be completely candid in recording their observations,
hypotheses and interim conclusions”); 5 U.S.C. § 552(b)(7)(A)-(F)
(identifying similar concerns in determining whether to disclose “records or
information compiled for law enforcement purposes” under federal Freedom of
Information Act).  
¶ 24.        
Looking at the statutory scheme as a whole, it is apparent that the
Legislature intended purely disciplinary investigations—those that do not deal
with the detection and investigation of crime—to be evaluated under the
“personal documents” exemption in § 317(c)(7), except to the extent such
investigations may relate to the “management and direction of a law enforcement
agency” and not to a specified individual employee under § 317(c)(5). 
 See Ran-Mar, Inc. v. Town of Berlin, 2006 VT 117, ¶ 5, 181 Vt. 26,
912 A.2d 984 (“We construe all parts of the statutory scheme together, where
possible, as a harmonious whole.”); see also Lubinsky v. Fair Haven Zoning
Bd., 148 Vt. 47, 49, 527 A.2d 227, 228 (1986) (explaining that legislative
intent “is most truly derived from a consideration of not only the particular
statutory language, but from the entire enactment, its reason, purpose and
consequences”).  As to named individual employees, § 317(c)(7)
specifically encompasses “information in any files maintained to . . .
discipline any employee of a public agency.”  
¶ 25.        
This assumes, of course, that such disciplinary investigations do not
involve “records of the office of internal investigation of the department of
public safety,” which are specifically exempt from public view under
§ 317(c)(18).  See 20 V.S.A. § 1923(d) (stating that records of
office of internal investigation shall be confidential, with exceptions not
relevant here); 1 V.S.A. § 317(c)(1) (exempting from disclosure records which
are by law designated confidential).[5] 
The Legislature has not enacted a similar exemption for records of internal
noncriminal disciplinary investigations conducted by city or town police
departments.  
¶ 26.        
Federal courts similarly make a critical distinction between an
investigation of a particular employee for a particular violation of law and
the “customary surveillance of the performance of duties by government
employees” in deciding whether a record is exempt under the federal Freedom of
Information Act (FOIA).  Jefferson v. Dep’t of Justice, Office of
Prof’l Responsibility, 284 F.3d 172, 177 (D.C. Cir. 2002).  Exemption
7 of FOIA excludes from disclosure those “records or information compiled for
law enforcement purposes,” but only to the extent that the production of such
records would cause one of six enumerated harms.  5 U.S.C.
§ 552(b)(7).[6] 
Not surprisingly, federal courts have held that to fall within this exemption, the
government must make a threshold showing that the records are “investigatory
records” and that they were “compiled for law enforcement purposes.”  See,
e.g., Stern v. FBI, 737 F.2d 84, 88-89 (D.C. Cir. 1984) (stating, as to
latter requirement, that government must show that records “were compiled for
adjudicative or enforcement purposes,” although it “need not show that the
investigation led to, or will lead to, adjudicative or enforcement
proceedings,” and that “type of law enforcement to which Exemption 7 is
addressed includes the enforcement of both civil and criminal federal
laws”).  
¶ 27.        
These courts have identified two categories of investigations that may
fall within Exemption 7: those involving “an agency’s investigation of
non-agency personnel and of activities external to the agency’s own
operations,” and those involving “internal investigations directed at the
investigating agency’s own activities and employees.”  Id. at 89.
 As the Stern court observed, “[i]nternal agency investigations
present special problems in the Exemption 7 context” because courts must
“distinguish between those investigations conducted ‘for law enforcement
purposes,’ and those in which an agency, acting as the employer, simply
supervises its own employees.”  Id.  The court recognized that
“an agency’s general internal monitoring of its own employees to insure
compliance with the agency’s statutory mandate and regulations is not protected
from public scrutiny under Exemption 7, although another exemption, such as
Exemption 6[, which protects certain “personnel files”], may apply.”  Id. 

¶ 28.        
To distinguish between internal investigations conducted for law
enforcement purposes and general agency internal monitoring that might reveal
evidence that later could give rise to a law enforcement investigation, the Stern
court applied the following test: “an agency’s investigation of its own
employees is for ‘law enforcement purposes’ only if it focuses ‘directly on
specifically alleged illegal acts, illegal acts of particular identified
officials, acts which could, if proved, result in civil or criminal
sanctions.”  Id. (quotation omitted).  
¶ 29.        
In Stern, the court considered whether the FBI was required to
disclose the names of three FBI employees who were investigated in connection
with a possible cover-up of illegal FBI surveillance activities.  No
criminal charges were brought against the employees but they were censured in
writing by the FBI for negligent job performance.  The trial court found
that the FBI was required to release the employee’s names pursuant to a FOIA
request.  The appeals court reversed, applying the test above.  It
found, first, that there was no dispute that the letters were “investigatory
records,” because they were “the very outcome and conclusion of what was
indisputably an investigation.”  Id. at 88.  
¶ 30.        
As to the second inquiry, the court found that records were “compiled
for law enforcement purposes.”  “By focusing on specific and potentially
unlawful activity by particular employees,” the court explained, “the
investigation went beyond general monitoring of agency activities. . . . 
The activity under investigation constituted potential violations of federal
criminal laws prohibiting the obstruction of justice.”  Id. 
The court emphasized that an investigation conducted by a federal agency for
the purpose of determining whether to discipline employees for activity which does
not constitute a violation of law is not for “law enforcement purposes”
under Exemption 7.  It found this fact assumed in the test cited above,
which requires that the acts investigated must be ones “which could, if proved,
result in civil or criminal sanctions.”  Id. at 89 (quotation
omitted).  It was also assumed in all of the FOIA cases respecting
requests for the disciplinary records of federal employees which were analyzed
under Exemption 6, rather than Exemption 7.  Id. 
¶ 31.        
The court reiterated this holding in Jefferson, explaining that
“if the investigation is for a possible violation of law, then the inquiry is
for law enforcement purposes, as distinct from customary surveillance of the
performance of duties by government employees.” 284 F.3d at 177.  This
distinction appears to be equally useful in determining whether a record
“deal[s] with the detection and investigation of crime” for purposes of §
317(c)(5). 
¶ 32.        
We decline to consider in the first instance, however, whether this
threshold requirement is satisfied as to items (1)-(8).  As the State
points out, the burden is on the City to justify its nondisclosure decision and
the City provided no affidavit stating that the records at issue “deal[] with
the detection and investigation of crime.”  See, e.g., Trombley,
160 Vt. at 107, 624 A.2d at 861 (burden is on agency to “make the specific
factual record necessary to support the exception claim” (quotation
omitted)).  Should the court find the exemption applicable to some or all
of these records on remand, we note that we have rejected the argument that § 317(c)(5)
contains a temporal limit.  Rutland Herald v. Vt. State Police,
2012 VT 24, __ Vt. __, __ A.3d __ [hereinafter Rutland Herald I].
¶ 33.        
We next consider the trial court’s application of the “management and
direction” proviso in § 317(c)(5).  We recently concluded that classifying
“actual investigation files” as falling within the management proviso would
obviate the language specifically addressing and exempting such records from
disclosure and it would swallow the exemption.  Id.  In Rutland
Herald I, there was no dispute over the nature of the records in
question.  They were directly related to a specific criminal
investigation, and “they were not related to policy, employment practices, or
other activities that would fall within a common sense understanding of the
term ‘management and direction of a law enforcement agency.’ ”  Id.
¶ 29.
¶ 34.        
This case presents a closer question.  As an initial matter, it is
not yet clear which of the records here are actual investigation records.
 Consistent with our holding in Rutland Herald I, any such records
are exempt and not disclosable under the proviso.  Other records, however,
may promote the Legislature’s desire for accountability to the public through
knowledge of how and how well the police department manages its employees.
 Disclosure of management records will expose whether that agency is
responsive to specific instances of misconduct, whether the agency is
accountable to itself internally, whether it challenges its own assumptions
regularly in a way designed to expose systemic infirmity in management
oversight and control; the absence of which may result in patterns of
inappropriate workplace conduct, for example.
¶ 35.        
The Legislature has made clear that the PRA must be “liberally construed
with the view towards carrying out” its legislative purpose of allowing “free
and open examination of records consistent with Chapter I, Article 6 of the
Vermont Constitution.”  1 V.S.A. § 315; see also Vt. Const., ch. I, art. 6
(recognizing that government officials are legally accountable to the
people).  “Officers of government are trustees and servants of the people
and it is in the public interest to enable any person to review and criticize
their decisions even though such examination may cause inconvenience or
embarrassment.”  1 V.S.A. § 315.  The public interest in knowing what
the government is doing “is particularly acute in the area of law
enforcement.”  Walton v. Caledonian Record Publ’g Co., 154 Vt. 15,
21, 573 A.2d 296, 299 (1990).  This includes the public’s interest “in
learning about the operations of a public agency . . . and in
having information openly available to them so that they can be confident in
the operation of their government.”  City of Baton Rouge/Parish of East
Baton Rouge, 4 So. 3d at 821.  The public also has “an interest in
knowing whether public servants are carrying out their duties in an efficient
and law-abiding manner.”  Globe Newspaper Co. v. Police Comm’r of
Boston, 648 N.E.2d 419, 425 (Mass. 1995) (citation omitted).  
¶ 36.        
We note that the Rhode Island Supreme Court, interpreting a similar
“management and direction” proviso, has concluded that certain records
pertaining to civilian complaints about police misconduct, specifically,
reports of disciplinary actions taken in response to citizen complaints, were
disclosable.  Direct Action for Rights & Equality v. Gannon,
713 A.2d 218, 224-25 (R.I. 1998).[7] 
The court reasoned that the manner in which a law enforcement agency addresses
the concerns of its citizens regarding such complaints “relates to the
management and direction of a law enforcement agency.”  Id. at
224.  It thus ordered the release of these documents with certain
redactions.  This reasoning may be equally applicable to documents that
illustrate the police department’s oversight and management of its own
employees.  
¶ 37.        
While it would be premature to decide how to apply the proviso here, we
do not foreclose the possibility that it may include records demonstrating how
the police department responds to workplace infractions, including its response
to a possible pattern of inappropriate workplace behavior.  We note that
redaction could be appropriate as well, as in Gannon. 
   
¶ 38.        
We turn next to the disciplinary letters involving two DPW employees
(items (9) and (10)).  The trial court’s decision regarding these
documents was based solely on its application of the “personal records
exemption,” 1 V.S.A. § 317(c)(7).  AFSCME maintains that the court did not
properly balance the privacy interests and the public interest in reaching its
conclusion.[8] 
According to AFSCME, employees who view legal pornography at work have a
privacy interest that protects the disclosure of their names and disciplinary
records and the Herald’s desire to know how an agency is supervising its
employees does not create a public interest sufficient to override individual
privacy rights.  AFSCME concedes that viewing pornography at work is
inappropriate, but argues that it concerns personal noncriminal conduct that is
not directly related to carrying out one’s professional duty.  
¶ 39.        
As set forth above, § 317(c)(7) exempts:
personal
documents relating to an individual, including information in any files
maintained to hire, evaluate, promote or discipline any employee of a public
agency, information in any files relating to personal finances, medical or
psychological facts concerning any individual or corporation; provided, however,
that all information in personnel files of an individual employee of any public
agency shall be made available to that individual employee or his or her
designated representative. 
 
We have construed the term
“personal documents” to apply only when the privacy of the individual is
involved.  Trombley, 160 Vt. at 109, 624 A.2d at 863.  Thus,
“the exception applies only to those documents that reveal intimate details of
a person’s life, including any information that might subject the person to
embarrassment, harassment, disgrace, or loss of employment or friends.”  Kade,
2006 VT 44, ¶ 8 (citation omitted).  
¶ 40.        
As previously noted, the court must balance the interests in privacy and
disclosure in deciding if a document is exempt under this provision.  In
doing so, it “must consider not only the relevance, if any, of the records to
the public interest for which they are sought, but any other factors that may
affect the balance, including: the significance of the public interest
asserted; the nature, gravity, and potential consequences of the invasion of
privacy occasioned by the disclosure; and the availability of alternative
sources for the requested information.”  Id. ¶ 14.
¶ 41.        
The trial court considered these factors and concluded that the public
interest in disclosure outweighed any privacy interest.  See Norman v.
Vt. Office of Ct. Admn’r, 2004 VT 13, ¶ 9, 176 Vt. 593, 844 A.2d
769 (mem.) (stating that issue of “[w]hether public records relating to
disciplinary action, performance evaluations, or employee grievances contain
‘personal’ information within this exception is a fact-specific
determination”); see also Kanaan v. Kanaan, 163 Vt. 402, 405, 659 A.2d
128, 131 (1995) (it is exclusive role of trial court to weigh evidence). 
We need not delve into the scope of an employee’s expectation of privacy, if
any, in using a public computer to view pornography at work.  While the
public interest in the release of these letters does not appear particularly
weighty, “[i]t is in the public interest to enable any person to review
and criticize” decisions of government officers.  1 V.S.A. § 315 (emphasis
added).  At the same time, as to the DPW employees, the court addressed
any undue invasion of privacy by redacting the employees’ names and suspension
dates.  See Walton, 154 Vt. at 20, 573 A.2d at 299 (explaining that
exemptions to PRA are strictly construed “against the custodian of such records
and resolve any doubts in favor of disclosure”).  AFSCME fails to show
that the court abused its discretion in concluding that the balance of
interests favored disclosure of these redacted documents.  See Quenneville
v. Buttolph, 2003 VT 82, ¶ 11, 175 Vt. 444, 833 A.2d 1263 (“A
trial court’s discretionary rulings are examined under an abuse of discretion
standard of review, which requires a showing that the trial court has withheld
its discretion entirely or that it was exercised for clearly untenable reasons
or to a clearly untenable extent.” (quotation omitted)).

 
¶ 42.        
Finally, we reverse the trial court’s decision to
allow the Herald to review in camera numerous withheld records that depict
possible child pornography, notwithstanding the court’s conclusion that public
release of these images was not proper.  The court identified no legal
basis for this ruling, and we find no support for this approach in the
PRA.  
We reverse and remand as to items
(1)-(8); affirm as to items (9) and (10); and we reverse the court’s decision
to allow the Herald to view withheld documents in camera.  
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 
 
¶ 43.        
DOOLEY, J., concurring and dissenting.   Construing
statutes is an art and not a science.  We have a number of construction
canons that we routinely apply to statutory language to find the meaning as
applied to the case in front of us.  Nevertheless, we recognize that these
canons have to be guides, and not firm rules.  See In re Wal*Mart
Stores, Inc., 167 Vt. 75, 84, 702 A.2d 397, 403 (1997).  While we
strive for precision in language, we often fall short of the ideal.  So it
is with the Legislature.  
¶ 44.        
The critical construction in this case is the challenge of properly
understanding the use of the word “including” in 1 V.S.A. § 317(c)(5). 
This clause exempts from public access “records dealing with the detection and
investigation of crime, including
those . . . compiled in the course of a criminal or disciplinary
investigation by any police or professional licensing agency.”  Id.
(emphasis added).  The majority construes this use of the word “including”
as meaning that records within the closing phrase must also fall within the
opening phrase.  Thus, in the majority’s view, records compiled in the
course of a disciplinary investigation by a police agency are exempt from
public access under § 317(c)(5) only if they are also records dealing with the
detection and investigation of crime.  With virtually no analysis, and
certainly no consideration of alternatives, the majority states that the
language “plainly requires” this result.  Ante, ¶ 22.
¶ 45.        
In this case, plain meaning is in the eye of the beholder.  The
meaning that the majority finds is plain is only one of at least two likely
possibilities.  As the U.S. Supreme Court has noted: “Undoubtedly the word
‘including’ may preface an illustrative example of a general power already
granted, or it may serve to define that power or even enlarge it.  Whether
it is the one or another must be determined by the purpose of the Act, to be
ascertained in the light of the context, the legislative history, and the
subject matter to which the statute is to be applied.”  Phelps Dodge
Corp. v. N.L.R.B., 313 U.S. 177, 211 (1941) (citations omitted); see also Montello Salt
Co. v. Utah, 221 U.S. 452, 464-65 (1911) (“It may have the sense of
addition, as we have seen, and of
‘also’; but, we have also seen, ‘may merely specify particularly that which
belongs to the genus.’ ” (quoting Hiller v. United States, 106 F.
73, 74 (2d Cir. 1901)).  The U.S. Court of International Trade has given a
complete summary of the variegated uses of “including”:
A statute’s use of the term “including”
generally may serve: (1) not to provide an all-embracing definition, but to
connote simply an illustrative application of the general description without
limiting the general description; (2) to add products to the heading that fall
outside the general description;
(3) to arrest any doubt as to whether the exemplars are
included within the class; or (4) to demarcate the boundary
between what falls within the general class from that which falls without
thereby limiting the scope of the general class.
Cummins Inc. v. United States,
377 F. Supp. 2d 1365, 1372-73 (Ct. Int’l Trade 2005) (quotations, alterations
and footnotes omitted). 
¶ 46.        
On at least two occasions, this Court has read “including” as appending
something additional.  In In re Central Vermont Public Service Corp.,
135 Vt. 432, 433, 378 A.2d 510, 511 (1977), this Court interpreted an
“including” clause to expand the scope of the phrase being modified beyond its
most natural meaning.  The case required interpretation of the following
requirement: “Notice of the town meeting shall be posted in at least five
public places, including the library and a newspaper of general circulation in
the town . . . .”  The town had not published notice
in the newspaper, but had posted notice at the office of the newspaper. 
The Court held this to be inadequate, thereby reading the “including” clause to
expand the meaning of “public places” to cover more than physical
locations.  In Lockwood v. Cobb, a statute prescribed a fee of
thirty-four cents “for taking deposition, including caption and certificate.” 
5 Vt. 422, 424 (1833) (quotation omitted).  This Court concluded
that, although caption and certificate were separate from the administration of
the oath, “taking deposition” should not be read to cover writing out the
deposition.  That is, the “including” clause was read to expand beyond
“taking deposition” and not to imply that “taking deposition” must include
writing out the deposition, of which the caption and certificate would be a
part.
¶ 47.        
As the U.S. Supreme Court has indicated, we must determine the meaning
of the term “including” in the context in which it is used to determine the
intent of the Legislature.  Phelps Dodge Corp., 313 U.S. at
211.  Here, three aspects of the context point strongly to a legislative
intent to exempt records of a police disciplinary investigation whether or not
those records include detection and investigation of crime.  
¶ 48.        
The first, and most obvious, is that it makes the disciplinary
investigation language superfluous.  See State v. Tierney, 138 Vt.
163, 165, 412 A.2d 298, 199 (1980) (reading statute to avoid construction that
would render specific enumeration superfluous); see also State Office of
Inspector Gen. v. Superior Court, 117 Cal. Rptr. 3d 388, 397 (Ct. App.
2010) (avoiding construction that would void language in statute).  That
is, no application of the statute would turn out differently if the
disciplinary investigation language were omitted.  There may be reasons to
include irrelevant language, as courts have noted above, but there is no
indication that any of those reasons apply here.  For example, I see no
reason to emphasize that a criminal investigation of a police officer is
subject to the same public access rule as a criminal investigation of someone
else or that disciplinary investigations of police, and licensed professionals,
could include investigation of a possible crime.  Nor does the
disciplinary investigation language help to define the “detection and
investigation of crime” language.  Under the majority’s construction, the
disciplinary investigation language serves no purpose and has no effect.
¶ 49.        
The second aspect is that the phrase after the word “including” covers
disciplinary investigations by a professional licensing agency.  A
professional licensing agency has no criminal law enforcement authority and,
therefore, would be required to turn an investigation into criminal activity
over to the police.  Its inclusion in the phrase strongly suggests that
the Legislature intended the word “including” as denoting additional records
not dealing with the detection and investigation of crime.  
¶ 50.        
The third aspect of the context is for me the most telling.  Prior
to 2011, the last phrase of § 317(c)(5) read: “records reflecting the initial
arrest of a person and the charge shall be public.”  In 2011, the
Legislature amended this phrase to read: “records reflecting the initial arrest
of a person, including any ticket, citation, or complaint issued for a
traffic violation, as that term is defined in 23 V.S.A. § 2302; and the
charge of a person shall be public.” 2011, No. 59, § 3 (emphasis
added).  Issuing tickets, citations or complaints for a traffic violation
does not alone involve an arrest.  This is a clear example of the
Legislature using “including” to mean in addition, and it occurs in the same
subsection as the one we are construing in this case.  I think it highly
unlikely that the Legislature would use “including” in one way in one part of
§ 317(c)(5) and in a wholly different way in another part.  
¶ 51.        
Apart from its reading of the statute’s “plain” language, the majority’s
analysis rests on cases from other jurisdictions, which conclude that there is
a distinction between professional or disciplinary investigations leading to
criminal charges and other noncriminal disciplinary investigations.  The
reasoning of these cases provides limited assistance to us, however, given the
distinct language of our PRA.  For example, the majority relies on Stern
v. Federal Bureau of Investigation, 737 F.2d 84 (D.C. Cir. 1984), which
drew a distinction between investigations focused on potentially unlawful
activity and those where “an agency, acting as the employer, simply supervises
its own employees.”  Id. at 89.  This case was dependent,
however, on the language of the Freedom of Information Act (FOIA) exempting
“investigatory records compiled for law enforcement purposes.”  The
court’s conclusion stemmed directly from the statutory language.  Given
the difference between that language and § 317(c)(5), it is difficult to derive
useful principles from those federal cases.  See Rutland Herald v. Vt.
State Police, 2012 VT 24, ¶ 19, __ Vt. __, __ A.3d __ (noting minimal
utility of judicial decisions interpreting other public records statutes
because language of the particular statutes “varies widely”) [hereinafter Rutland
Herald I].  
¶ 52.        
Therefore, I disagree that it is necessary in this case to remand the
matter to the trial court for a factual determination of whether the
investigatory records deal with the “detection and investigation of
crime.”  The trial court found that the records were “maintained on any
individual or compiled in the course of a criminal or disciplinary
investigation” by police.  This finding is sufficient to demonstrate that
the records fall within the exemption, and no further factual analysis is
necessary.  Moreover, because § 317(c)(5) “provides a categorical
exemption” without a balancing of interests, Rutland Herald I, 2012 VT
24, ¶ 24, I would hold that items one through eight are exempt from
disclosure.[9] 

¶ 53.        
A few additional notes are necessary.  I agree with the majority
that neither of the trial court’s grounds for disclosure supports release of
the records.  First, as the majority holds, § 317(c)(5) does not
contain a time limitation.  This question was resolved in Rutland
Herald I, 2012 VT 24, ¶¶ 12-13, wherein we held that the exemption applies
even after an investigation is complete.  Second, the records here do not
fall under the management-and-direction proviso.  Rutland Herald I
instructs that that exception was not intended to disclose records about a
specific investigation; rather it applies to records “related to policy,
employment practices, or other activities that would fall within a common sense
understanding of [management].”  Id. ¶ 29.  The records
at issue here deal with investigating the behavior of particular individuals
and not the overall management of the police department.  
¶ 54.        
Even if the records are not exempt under § 317(c)(5), the City and the
union claim that § 317(c)(7) applies.  This exemption applies to “personal
documents relating to an individual, including information in any files
maintained to hire, evaluate, promote or discipline any employee of a public
agency.”  1 V.S.A. § 317(c)(7).  The superior court analyzed the
records under this exemption and concluded that the exemption did not prevent
their disclosure.  Under my construction of the statute, it is not
necessary to reach this question because the records are already exempt under §
317(c)(5).  The majority claims that because there is no final
determination regarding § 317(c)(5), it is “premature” to reach the question of
whether the records are exempt as personal documents under § 317(c)(7).  Ante,
¶ 20 n.3.
¶ 55.        
Even if I joined the majority’s construction of § 317(c)(5), I would
dissent from the failure to determine whether any of the records are exempt
under § 317(c)(7).  The trial court ruled on this issue, and the City
appealed the ruling.  Both sides have briefed the application of
§ 317(c)(7).  Given the time-sensitive nature of public records
requests, our obligation is to resolve the issues as expeditiously and
efficiently as possible.  I see no reason why we are failing to resolve
the issue before us.
¶ 56.        
Unfortunately, in this case, it has now been more than two years since
the Rutland Herald requested these records from the City of Rutland and its
police department.  The time consumption should be expected because the
issues are complex and important, but we should always be cognizant that the
Legislature has directed that both public records trials and appeals “take precedence
on the docket over all cases,” except those considered to be of greater
importance, and should be “expedited in every way.”  1 V.S.A. §
319(b).  Depending upon how we rule on the § 317(c)(7) issue, this issue
could end this controversy.  In my opinion, the remand without resolving
the application of § 317(c)(7) to the records is very likely to produce another
appeal.  I do not believe we honor the policy directive of the Legislature
by addressing the issues piecemeal.  To prevent even further delay, I
believe we must today address all issues that will arise on remand or to
prevent a remand.  I dissent from the failure of the majority to do that.
¶ 57.        
In sum, I would read “including” in § 317(c)(5) as meaning “in
addition to” and apply the exemption to all records maintained or created in
the course of a criminal or disciplinary investigation conducted by a police or
professional licensing agency.  Because the records at issue fall within
this category, they are exempt from disclosure.  I further dissent from
the failure to address whether the records in issue are exempt from public
access under 1 V.S.A. § 317(c)(7).
¶ 58.        
I am authorized to state that Justice Johnson joins this dissent.

 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 





[1] 
This statutory provision was amended in 2011; we use the version of the statute
in effect at the time of the decision below.  
 


[2] 
These letters were submitted by the City in response to the Herald’s request
for “[a]ny electronic or written communication to and from you or your office
relating to City computer policy, abuse of city equipment and/or viewing
pornography, either on city equipment or by city personnel, since 2004.”


[3] 
The Herald did not file a cross-appeal.  We thus do not address its
argument that it would be unconstitutional to prohibit disclosure in this case
(an argument that, in any event, does not appear to have been raised below), or
its assertion that we should consider redaction as an alternative to full
disclosure.  


[4] 
Because no final determination has yet been made whether these items are exempt
under § 317(c)(5), it would be premature to address whether they are
disclosable under § 317(c)(7).  We thus do not address either the
City’s or AFSCME’s arguments concerning the applicability of § 317(c)(7) to
items (1)-(8).  
 


[5] 
The Legislature has adopted a process “to ensure that allegations of misconduct
by state police officers are investigated fully and fairly, and to
ensure that appropriate action is taken with respect to such
allegations.”  20 V.S.A. § 1923(a) (emphasis added).  To this end,
the office of internal affairs is charged with investigating “all allegations
of misconduct by members of the department [of public safety],” and the head of
the internal affairs unit must report all allegations and findings to the
commissioner as well as to the state’s attorney of the county in which the
incident took place, the attorney general, and the governor, unless the head of
the unit determines that the allegations do not include violation of a criminal
statute.  Id. § 1923(b).  
 


[6] 
The statute specifically exempts: 
 
records or information
compiled for law enforcement purposes, but only to the extent that the
production of such law enforcement records or information (A) could reasonably
be expected to interfere with enforcement proceedings, (B) would deprive a
person of a right to a fair trial or an impartial adjudication, (C) could
reasonably be expected to constitute an unwarranted invasion of personal
privacy, (D) could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or authority
or any private institution which furnished information on a confidential basis,
and, in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation or by an agency
conducting a lawful national security intelligence investigation, information
furnished by a confidential source, (E) would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the law, or
(F) could reasonably be expected to endanger the life or physical safety of any
individual. 
 
5 U.S.C. § 552(b)(7). 
“As originally enacted,” this exemption “authorized agencies to withhold
‘investigatory files compiled for law enforcement purposes except to the extent
available by law to a private party.’ ”  Campbell v. Dep’t of Health
& Human Servs., 682 F.2d 256, 261 (D.C. Cir. 1982) (citation
omitted).  Congress revised this language in 1974 to cover “investigatory
records” rather than “investigatory files” and to require the government to
show that disclosure of such records would result in certain specified
harms.  These changes were specifically intended to reject the broad
interpretations of the exemption adopted by the United States Court of Appeals
for the D.C. Circuit and thereby “restore the intent of the Congress that had
enacted the original FOIA.”  See id. at 262 (citations omitted). 



[7] 
Rhode Island law specifically excludes from disclosure:
 
  All records
maintained by law enforcement agencies for criminal law enforcement; and all
records relating to the detection and investigation of crime, including those
maintained on any individual or compiled in the course of a criminal
investigation by any law enforcement agency . . . provided, however, records
relating to management and direction of a law enforcement agency and records
reflecting the initial arrest of an adult and the charge or charges brought
against an adult shall be public.
 
Id.
at 224 (citation and emphasis omitted).  
We note that Rhode Island, like numerous other states,
includes a list of specific criteria to limit the scope of its law-enforcement
exemption.  See R.I. Gen. Laws § 38-2-2(5)(D)(a)-(f) (providing that such
law-enforcement records are exempt only to extent that their disclosure “could
reasonably be expected to interfere with investigations of criminal activity or
with enforcement proceedings”; “would deprive a person of a right to a fair
trial or an impartial adjudication”; “could reasonably be expected to
constitute an unwarranted invasion of personal privacy”; “could reasonably be
expected to disclose the identity of a confidential source . . . or the
information furnished by a confidential source”; “would disclose techniques and
procedures for law enforcement investigations or prosecutions” or “could reasonably
be expected to endanger the life or physical safety of any individual”); see
also ante ¶ 23 (citing case law from other states, as well as FOIA,
which have identified similar policy goals underlying their law-enforcement
record exemptions).  This approach appears to promote open access to
public records while also serving the policy goals that a
law-enforcement-records exemption is designed to protect.  It would be
useful for our Legislature to consider a similar approach as it contemplates
revisions to the PRA.


[8] 
The City does not challenge the disclosure of these two items under § 317(c)(7)
on appeal.  


[9] 
There are ten groups of records at issue in this case.  As explained by
the majority, the first eight involve investigations of police department
employees.  Items nine and ten involve employees of the Department of
Public Works (DPW), which were withheld solely under § 317(c)(7). 
Applying the balancing test inherent in § 317(c)(7), the court held that the
documents should be released, but redacted any identifying information. 
On appeal, the union representing the DPW employees argues that these records
should be exempt.  I concur with the majority’s affirmance of the trial
court’s order regarding items nine and ten.  



