Wool v. Burlington Police Dept. et al., No 327-6-15 Wncv (Tomasi, J., June 13, 2016).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]



                                                      STATE OF VERMONT
 SUPERIOR COURT                                                                                            CIVIL DIVISION
 Washington Unit                                                                                Docket No. 327-6-16 Wncv

 Kirk F. Wool,
         Plaintiff

             v.

 Burlington Police Department,
 Miro Weinberger,
        Defendants


                  Opinion and Order on Request for Production of Public Records

       On June 13, 2016, this matter came for hearing before the Court on
Petitioner’s motion for Respondent to release unredacted copies of a victim
statement and a deposition, pursuant to Vermont’s Access to Public Records Act.
The Respondent produced the requested records but redacted the names and other
personal identifying information from the records. Petitioner appeared at the
hearing and represented himself. Respondent appeared and was represented by
Senior Assistant City Attorney Eugene Bergman. The Court makes the following
determinations.

       1.     The Court agrees with Respondent that its response to Petitioner’s
request was timely. It responded to the request within five business days from its
receipt of the request. 1 V.S.A. § 318(c)(1).
       2.     The City properly redacted the personal information from the
documents.
       A.     Under 1 V.S.A. § 317(c)(5)(A), the documents at issue relate directly to
the investigation of the crimes for which Respondent is currently serving a jail
sentence, and are plainly “[r]ecords dealing with the investigation and detection of
crime.”
       B.     The Vermont Legislature has gone out of its way to underscore its
desire that personal information concerning witnesses that appears in such records
not be subject to disclosure. Section 317(c)(5)(D) provides that: “a public agency
shall not reveal . . . the identity of a private individual who is a witness to or a
victim of a crime, unless withholding the identity . . . would conceal government
wrongdoing.” In the Court’s view, the “identity” of a witness would also include
personally identifying information, such as birthdate, social security number, and
home address. Such information could easily be used to locate and harass such
persons.

       Here, Petitioner has indicated at the hearing that he was hoping to provide
the information to journalists to see if they would be interested in investigating his
convictions. This does not provide a sufficient basis for the Court to find that
disclosure of the requested personal information in this case would uncover
“government wrongdoing.” Indeed, the redacted information is a very small portion
of the records that were produced, and any governmental conduct is revealed
through the portions of the records already produced. Accordingly, Respondent
properly redacted the personal identifying information under Section 317(c)(5)(D).

       C.    The Legislature has also adopted 1 V.S.A. § 317(c)(5)(A)(iii), which
more generally precludes disclosure of criminal investigative records where doing so
would be an “unwarranted invasion of personal privacy.” In construing that
provision, the Legislature has stated that Courts are to be guided by federal
decisions interpreting the parallel provision of the federal Freedom of Information
Act. Id. § 317(c)(5)(C). The federal cases interpreting the federal exemption
establish that witnesses and interviewees in this setting have important privacy
interests in maintaining their anonymity. “[D]isclosure of records containing
personal details about private citizens can infringe significant privacy interests.”
United States Dep’t of Justice v. Reporters Comm. For Freedom of Press, 489 U.S.
749, 766 (1989). As one court had noted, “the privacy interests of such individuals
must weigh heavily against disclosure.” Garcia v. United States Dep’t of Justice,
181 F. Supp. 2d 356, 371 (S.D.N.Y. 2002).

      The United States Supreme Court has explained how to balance the
competing interests of disclosure of public records and of protection of personal
privacy as follows:

              FOIA is often explained as a means for citizens to know “ ‘what
      their Government is up to.’ ” Id., at 773, 109 S.Ct. 1468. This phrase
      should not be dismissed as a convenient formalism. It defines a
      structural necessity in a real democracy. The statement confirms that,
      as a general rule, when documents are within FOIA's disclosure
      provisions, citizens should not be required to explain why they seek the
      information. A person requesting the information needs no
      preconceived idea of the uses the data might serve. The information
      belongs to citizens to do with as they choose. Furthermore, as we have
      noted, the disclosure does not depend on the identity of the requester.
      As a general rule, if the information is subject to disclosure, it belongs
      to all.

           When disclosure touches upon certain areas defined in the
      exemptions, however, the statute recognizes limitations that compete
      with the general interest in disclosure, and that, in appropriate cases,
      can overcome it. In the case of Exemption 7(C), the statute requires us
      to protect, in the proper degree, the personal privacy of citizens against
      the uncontrolled release of information compiled through the power of
      the State. The statutory direction that the information not be released
      if the invasion of personal privacy could reasonably be expected to be
      unwarranted requires the courts to balance the competing interests in
      privacy and disclosure. To effect this balance and to give practical
      meaning to the exemption, the usual rule that the citizen need not
      offer a reason for requesting the information must be inapplicable.

              Where the privacy concerns addressed by Exemption 7(C) are
      present, the exemption requires the person requesting the information
      to establish a sufficient reason for the disclosure. First, the citizen
      must show that the public interest sought to be advanced is a
      significant one, an interest more specific than having the information
      for its own sake. Second, the citizen must show the information is
      likely to advance that interest. Otherwise, the invasion of privacy is
      unwarranted.

Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004).1

       In this instance, Petitioner’s proffered reason for access to the redacted
information does not satisfy the Favish test. As numerous cases have held,
personal interest in examining one’s own conviction provides an insufficient link to
a public interest. See Garcia, 181 F. Supp. 2d at 372 (collecting cases noting same).
Instead, as with Section 317(c)(5)(D), there must be some connection to possible
governmental misconduct. As the Favish Court held: to overcome a valid privacy
interest the “requestor must produce evidence that would warrant a belief by a
reasonable person that the alleged Government impropriety might have occurred.”
541 U.S. at 174. In this case, Petitioner has made no such showing.2



1 Petitioner’s contention that Respondent must show that the redacted information
concerns actual “witnesses” to the crime is meritless. The exemptions cannot be
subject to such a cramped construction. The Court believes that the privacy
interests protected by these exemptions extend to persons whose personal
information came into the hands of law enforcement in connection with the
investigation of criminal activity. See Favish, 541 U.S. at 171-72; Garcia, 181 F.
Supp. 2d at 372-73. Those persons may provide important information concerning
the criminal activity and can also be subject to harassment due to their
involvement.

2Petitioner has cited Finberg v. Murnane, 159 Vt. 431, 437-38 (1992), for the
proposition that it is improper to place the burden on him to show the documents
would uncover wrongdoing and that his motive is immaterial. Petitioner is
      WHEREFORE, Petitioner’s request for unredacted documents is denied.

      Electronically signed on June 13, 2016 at 2:18 PM pursuant to V.R.E.F. 7(d).


                                              ________________________
                                              Timothy B. Tomasi
                                              Superior Court Judge




incorrect. Finberg dealt with a different provision of the law, and the Court
concluded that there were only minimal privacy interests at issue. Id. The
provisions at issue here, which concern criminal investigatory records, have specific
statutory language establishing a privacy interest and also incorporate
interpretations of similar exemptions under federal law. The statutory language
and the federal precedents in this area show that Petitioner has the burden of
overcoming the significant privacy interests at stake in this context.
