Galloway v. Town of Hartford, No. 473-8-10 Wrcv (Hayes, J., Nov. 8, 2010)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                                  STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Windsor Unit                                                                                           Docket No. 473-8-10
Wrcv

                                                                         │
Anne Galloway,                                                           │
 Plaintiff                                                               │
                                                                         │
 v.                                                                      │
                                                                         │
Town of Hartford,                                                        │
 Defendant                                                               │
                                                                         │

                 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

           A hearing on the merits was held on October 28, 2010. The plaintiff appeared,

and was represented by Dan Barrett, Esq., and the defendant was represented by Joseph

Farnham, Esq. The evidence was largely based on stipulation. The parties agreed that in

deciding the issues the court could rely on the affidavit of Fred Peyton, a police officer

with the Hartford Police Department, dated August 27, 2010, attached to the Town’s

motion for summary judgment filed on August 30, 2010. Chief Glenn Cutting of the

department also testified briefly. Both parties submitted written arguments in connection

with their motions for summary judgment, and they relied on these as well. The court

denied the motion for summary judgment on October 15, 2010, finding that there was a

dispute between the parties as to the question regarding whether the activities of the

police as to which records were being sought were a criminal investigation.

           Based on the evidence presented, the court makes the following findings of fact:

On May 29, 2010, the Springfield Police Department received a telephone call from a

citizen who reported that she suspected criminal activity at an address in Hartford.
Police officers Peyton, Adams and Moody went to that address. Officer Peyton met with

the complaining witness there. She told him that the residence appeared “ransacked”,

that there was an unknown male person upstairs of whom she was fearful, and that

something was burning inside. The police entered the residence. They found a good

deal of smoke. They searched the residence, found a male inside, and attempted to

communicate with him. During the course of their contacts with this person officers

sprayed him with pepper spray, and handcuffed him by force. He was released from

handcuffs within 15 minutes. He was then transported to a medical facility. He was not

charged with any offense. It was decided that there was no probable cause to charge this

person with any criminal offense.

        The plaintiff seeks the release of all of the Town’s records related to this incident.

Chief Cutting stated that the officers involved were “miked” so there are audio recordings

of the events at the residence. There is also a tape of the initial 911 call to the police.

The officers’ reports and the dispatcher’s log are also among the records related to this

event in the custody of the Town. There may also be written witness statements. These

are the records that the plaintiff seeks under the Public Records Act.

        The plaintiff, a journalist, first made a written request for the records to the chief

of police, which was denied. She appealed to the town manager, who upheld the chief’s

decision. The plaintiff then she filed this action.

        Chief Cutting testified that he has referred the Department’s conduct in

connection with this incident to the Vermont Department of Public Safety for

investigation, and that investigation had not been concluded as of the date of the hearing.

The Town did not rely upon this investigation as a basis for non-disclosure of its records.




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CONCLUSIONS OF LAW

       The plaintiff seeks disclosure of the Town’s records under the public records law,

1 V.S.A. §§ 315 et seq.    The stated policy and intent of the law is “to provide for free

and open examination of records consistent with Chapter I, Article 6 of the Vermont

Constitution.” Section 315. The legislature specifically recognized that “it is in the

public interest to enable any person to review and criticize [the] decisions [of

governmental officers] even though such examination may cause inconvenience or

embarrassment,” subject to individuals’ privacy rights. Id. Therefore, the law is to be

“liberally construed” to carry out these goals. Id.   The Supreme Court has affirmed that

the statute should be liberally construed, and that, in fact, any exceptions listed in the

statute “should be construed strictly against the custodians of the records and any doubts

should be resolved in favor of disclosure.” Caledonian-Record Publishing Co. v.

Walton, 154 Vt. 15, 20 (1990). The agency seeking to avoid disclosure “cannot

discharge [its] burden [of proof] by conclusory claims or pleadings. They must make the

specific factual record necessary to support the exception claim.” Finberg v. Murnane,

159 Vt. 431, 438 (1992).

       The statute defines a public record broadly as “any written or recorded

information, regardless of physical form or characteristics, which is produced or acquired

in the course of public agency business.” Section 317(b). There is an exception related

to investigation of crimes, as follows:

       records dealing with the detection and investigation of crime, including those
       maintained on any individual …; 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.



                                              3
Section 317(c)(5). The Town relies upon this exception for its denial of access to the

records requested.

        The sole question for the court, therefore, is whether, applying the standards set

forth above, the Town has demonstrated that the records in question “deal… with the

detection and investigation of crime.” It is clear that the first contact that the Department

received from a member of the public was a complaint of suspected criminal activity.

However, at the end of the interaction, the police had apparently determined that no crime

had been committed. The “suspect” was not and will not be charged with any criminal

or civil offense related to this event. No citation was issued, and no affidavit of probable

cause was drafted by any officer involved in the matter.

        The public interest in full access to records “is particularly acute in the area of law

enforcement.” Caledonian Record, supra, at 21. In Caledonian Record, which focused

on whether criminal citations were exempt from disclosure, the Court noted that cases

such as this one are decided “in the shadow of the First Amendment…public and media

… right of access to information relating to the activities of law enforcement officers and

to information concerning crime in the community.” Id. However, the Court also noted

that “the state has significant interests in protecting the public from criminal activity,

prosecuting those who commit crimes, and protecting the privacy rights of individual

citizens. These interests may, at times, override the interest in public disclosure. The

Public Access statute was intended to mirror the constitutional right of access, and as

such, the exceptions enumerated in the statute allow a balancing of the competing

interests.” Id.




                                               4
        In determining whether citations for criminal offenses should be included within

the “arrest” exception stated above, and therefore subject to full disclosure, the Supreme

Court looked to other states’ decisions under analogous statutes for guidance.      Relying

on decisions from Ohio and Texas, the Supreme Court held that “arrest records are not

records dealing with the detection and investigation of crime but rather are the product of

such an investigation,” and should therefore be disclosed under the Act. Id. at 23

(emphasis added). The court went on to determine that citations were equivalent to

arrests in being the result of rather than a part of a criminal investigation, and therefore

fell within the “arrest” exception.

       Here, both parties spend considerable energy arguing whether or not the facts

support a finding that the individual whom the police encountered on this occasion was

subjected to an arrest. However, according to Caledonian Record, supra, the term

“arrest” in the public record statute plays a very different role than it does in other

contexts related to criminal prosecution or litigation related to 4th and 5th Amendment

rights. In the public records exception, “arrest” is used as a term to distinguish cases in

which a criminal investigation has ended, and an “arrest,” or citation, is the product of

that investigation, from those cases in which there is still an ongoing criminal

investigation. The Court clearly found that only those records that directly relate to an

active, ongoing criminal investigation, or that are protected by some other clearly

enunciated and demonstrated protected privacy or public interest, would the statutory

exception protect agency records under Section 317(b)(5). Id. at 23-26. The Court

specifically found that the so-called “arrest exception” to the investigatory records

exemption is not an exception at all, but rather a legislative attempt to insure with




                                               5
complete clarity that it is only investigative records that need not be disclosed. Records

that state the final outcome of an investigation are not investigative records. Id. at 25-26.

          In this instance, the police were clearly involved, initially, in an investigation into

suspected criminal activity. Under Section 317(b)(5), the records that they created

during the course of that investigation are not subject to disclosure.               However, the

stipulated facts also show that any criminal investigation concluded at some point during

the process of police interaction with the individual in question. The Town conceded at

the hearing that the investigation was in fact over, and that no criminal charges were

going to result.     It is not clear what portion of the town’s records were created after it

had been determined that this was no longer a criminal investigation. It is also not clear

whether that conclusion is contained in any specific memorandum, letter, or other

document. What is clear is that under the public records act, any and all records that were

generated by the Town after the decision that there would be no criminal charge are not

subject to the claimed exemption, and should be disclosed forthwith.

          The court can see no legitimate policy basis for any other finding. When the

final result of a criminal investigation is that a suspect has been cleared of wrongdoing,

the records that show that outcome should be subject to public disclosure, just as they are

when a person is in fact charged with a crime. The records that show the outcome of a

criminal investigation are not the records “of the investigation”, but its product, and

therefore they are subject to disclosure under the analysis used in Caledonian Record,

supra.1


1
 The court notes that this ruling is not meant to suggest that disclosure of records of ongoing investigations
where a suspect is still under suspicion would be required under the public records law, even if such
suspicions are tenuous. Rather, it is limited to cases in which the police initially suspect a crime has been
committed, but then determine definitively either that there has been no crime, that the conduct is such that


                                                      6
         The court therefore directs that the Town disclose any and all documents and

records in its possession related to the incident in question that were created or obtained

after the decision had been made that no further criminal investigation would be pursued

in connection with the individual whom the police contacted on the date in question.

This disclosure should be made within 7 days of receipt of this order.

         The court also orders that the records of the Town that were made in connection

with this incident up until the time that it was decided that no criminal charges would be

brought against the individual in question are exempt from disclosure under Section

317(b)(5), and need not be disclosed.

         If either party believes that an additional hearing is necessary in order to

determine what records as subject to disclosure, which seems highly likely in light of the

sparse evidentiary record created so far, they should file written request, with any

supporting explanation and an estimate as to the time needed for any such hearing, within

three days of receipt of this order. If such a hearing request is granted, the court will

require that the Town immediately prepare and file a Vaughan index of all records related

to this incident, including both those it believes are subject to disclosure and those it

believes are exempt from disclosure under this ruling, in chronological order of

preparation.




no criminal charge is warranted, or that they have the wrong suspect. The record of such a determination,
like a citation or criminal arrest, is the “product” of such an investigation, and is not excepted from public
disclosure. The court also notes that it is not ruling on the applicability of any other possible exemptions
under the public records law to protect the suspect’s privacy, as none have been raised.


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Dated at Woodstock this 4th day of November, 2010.



                                   _____________________________
                                   Katherine A. Hayes
                                   Superior Court Judge



                                   _____________________________
                                   William Boardman
                                   Assistant Judge




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