2012 VT 24


Rutland Herald v. Vermont State
Police and Office of the Attorney General (2010-434)
 
2012 VT 24
 
[Filed 30-Mar-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 24

 

No. 2010-434

 

Rutland Herald 


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Washington Unit,


 


Civil Division


 


 


Vermont State Police and Office
  of the Attorney General


March Term, 2011


 


 


 


 


Geoffrey
  W. Crawford, J.


 

Robert B. Hemley and Matthew B. Byrne of Gravel and Shea,
P.C., Burlington, for 
  Plaintiff-Appellant.
 
William H. Sorrell, Attorney General, and Mark J. Di
Stefano, Assistant Attorney General,
  Montpelier, for Defendants-Appellees. 
 
Dan Barrett, Montpelier, for Amicus Curiae American Civil
Liberties Union Foundation of
  Vermont.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
SKOGLUND, J.   This case concerns public access to
records that newspaper plaintiff Rutland Herald believes are of intense public
interest: material related to a criminal investigation of possession of child
pornography by employees of the Criminal Justice Training Council at the
Vermont Police Academy.  The Herald appeals from a trial court decision
granting summary judgment to defendants, the Vermont State Police (VSP) and the
Office of the Attorney General (collectively “the State”), and denying
disclosure of the records under the Access to Public Records Act (PRA), 1
V.S.A. §§ 315-320.  The court concluded that the records sought by the
Herald, which included inquest records, were exempt from disclosure as “records
dealing with the detection and investigation of crime” under § 317(c)(5). 
It added that the inquest materials were also exempt under § 317(c)(1) as
“records which by law are designated confidential.”  We affirm the court’s
decision.
¶ 2.            
The material facts are undisputed.  In January 2010, the VSP opened
an investigation into possible criminal conduct involving employees of the
Training Council.  The VSP had been alerted to the possibility of criminal
conduct by the Vermont Department of Human Resources (VDHR), which was
conducting an employment-related investigation into the matter following the
discovery of suspicious material on the work computer of employee David
McMullen.  Inappropriate emails were also apparently discovered on other
employees’ work computers.  The employees’ work computers were secured,
and the VSP also seized computer equipment from McMullen’s home.  The
following day, McMullen committed suicide.  As a result, the VSP conducted
an investigation into his death.  
¶ 3.            
The VSP compiled several files during the course of its investigations,
which included inquest-related material.  When its investigations were
complete, the VSP submitted its files to the Office of the Attorney General for
prosecutorial review.  The Attorney General declined to commence a
prosecution, finding no criminal conduct by anyone other than McMullen.
¶ 4.            
In July 2010, the Herald made a public records request to the VSP and to
the Attorney General, seeking disclosure of materials related to the
investigations of McMullen and other unnamed employees.  The parties
stipulated that the Herald sought access to both the criminal and death
investigation files.  The VSP denied the request, asserting that its files
were exempt from disclosure under § 317(c)(5).  The Attorney General
denied the request on similar grounds, adding that the inquest materials were
also exempt under § 317(c)(1) as records designated confidential by law.
¶ 5.            
The Herald filed suit in August 2010 and immediately requested summary
judgment in its favor.  The State opposed the Herald’s request and filed a
cross-motion for summary judgment.  At the court’s request, the State
produced the withheld material for in camera review.  Following oral
argument and in camera review, the court granted summary judgment to the State. 
It concluded, with two minor exceptions,[1]
that the records at issue related to the investigation of possible criminal
activity and included “no material related to policy, employment practices, or
other activities not directly related to a specific investigation.”  The
court noted that § 317(c)(1) offered an additional ground for shielding
the inquest materials from public view.  
¶ 6.            
In reaching its conclusion, the court rejected the Herald’s argument that
because any investigation of McMullen ended with his suicide, there was no
basis for a continuing exemption to disclosure.  The court similarly
rejected the Herald’s contention that the phrase “compiled in the course of a
criminal . . . investigation” in § 317(c)(5) meant that any exception to
disclosure was limited to the duration of the investigation.  The court
concluded that the statutory language contained no time limit and that it
instead contemplated an “open-ended period of confidentiality.”  The
Herald now appeals from the court’s decision.  
¶ 7.            
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).  
¶ 8.            
As we have repeatedly recognized, the PRA represents “a strong policy
favoring access to public documents and records.”  Wesco, Inc. v.
Sorrell, 2004 VT 102, ¶ 10, 177 Vt. 287, 865 A.2d 350.  The PRA’s
statement of policy specifically provides that:
  It is the
policy of this subchapter to provide for free and open examination of records
consistent with Chapter I, Article 6 of the Vermont Constitution.
 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.  All people, however, have a right to privacy in their
personal and economic pursuits, which ought to be protected unless specific
information is needed to review the action of a governmental officer.
 Consistent with these principles, the general assembly hereby declares
that certain public records shall be made available to any person as
hereinafter provided.  To that end, the provisions of this subchapter
shall be liberally construed with the view towards carrying out the above
declaration of public policy.   
 
1 V.S.A. § 315.  
¶ 9.            
The public interest in knowing what the government is doing “is
particularly acute in the area of law enforcement.”  Caledonian Record
Publ’g Co. v. Walton, 154 Vt. 15, 21, 573 A.2d 296, 299 (1990).  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.”  Id. at 21, 573 A.2d
at 300.  We construe exemptions in the PRA “strictly against the
custodians of records,” and resolve any doubts “in favor of disclosure.”  Wesco,
2004 VT 102, ¶ 10.  The burden of demonstrating that a record is
covered by an exemption “is on the agency seeking to avoid disclosure.”  Id.
¶ 10.        
Section 317(c)(5) specifically exempts the following material from
disclosure:
 
[R]ecords 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.
 
As stated above, the trial court
inspected the records here and concluded that they were “records dealing with
the detection and investigation of crime.”  The Herald has not challenged
this threshold determination, and we accept the trial court’s characterization
of these records.[2]

¶ 11.        
We thus turn to the Herald’s statutory arguments.  The Herald
asserts that disclosure is appropriate because the investigation is complete,
and the public interest favors disclosure.  Citing Walton, 154 Vt.
at 19, 573 A.2d at 299, the Herald contends that this Court has narrowly construed
§ 317(c)(5) in the past and found that the statute contains a “time-based”
element.  To achieve a narrow construction in this case, the Herald urges
us to apply a balancing test as in Trombley v. Bellows Falls Union High
School District No. 27, and weigh “the right of persons ‘to privacy in
their personal . . . pursuits’ against the need for ‘specific information . . .
to review the action of a governmental officer.’ ”  160 Vt. 101, 109-10,
624 A.2d 857, 863 (1993) (citing 1 V.S.A. § 315).  The Herald
maintains that there are no privacy interests at stake because the target of
the investigation has been identified and is dead, and the remaining employees
have no expectation of privacy in an investigative report of their on-the-job
behavior.  It argues that the completion of the investigation heightens
the public interest in the matter.  The Herald cites cases from other
jurisdictions that allow the release of similar material.
¶ 12.        
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 the 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 (mem.).  As
discussed below, we find no support for the imposition of either a time-based
limitation or a balancing test in the plain language of § 317(c)(5).  The
language instead reflects the Legislature’s intent to permanently and
categorically exempt all criminal investigatory records from public
disclosure.   
¶ 13.        
As set forth above, the statute 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.”  1 V.S.A. § 317(c)(5) (emphases added). 
Investigation records are “maintained” or kept on individuals on an ongoing
basis, after active “detection and investigation” is complete.  Using the
past tense of “compile” indicates intent to exempt records both during and
after the compilation process.  The words “maintained” and “compiled”
suggest that the Legislature anticipated keeping investigatory records exempt
after an active investigation had ended.  Like the trial court, we are not
persuaded by the Herald’s argument that the use of the word “compiled” suggests
that the exception ends when the compilation process ends.  The term
“compiled” describes the type of record involved.
¶ 14.        
We note, moreover, that had the Legislature intended the exemption to
exist only during an ongoing investigation, it could have been much more
specific.  For example, 1 V.S.A. § 317(c)(13) exempts “information pertaining
to the location of real or personal property for public agency purposes prior
to public announcement of the project and information pertaining to
appraisals or purchase price of real or personal property for public purposes prior
to the formal award of contracts thereof.”  (Emphases added.) 
The PRA also contains other exemptions with specific temporal
limitations.  See, e.g., id. § 317(c)(14) (exempting “records
which are relevant to litigation to which the public agency is a party of
record, provided all such matters shall be available to the public after ruled
discoverable by the court before which the litigation is pending, but in any
event upon final termination of the litigation” (emphasis added)); id.
§ 317(c)(23) (exempting records related to research and activities
conducted at state academic institutions “until such data, records or
information are published, disclosed in an issued patent or
publicly released by the institution or its authorized agents” (emphases
added)).  That the Legislature included temporal limitations in numerous
other PRA exemptions makes it unlikely that it intended to include a temporal
limitation in § 317(c)(5) without specific language to this effect.
¶ 15.        
The Herald asserts that the strong policy in favor of public oversight
of law enforcement actions must lead to a different result.  It argues
that the Legislature could not have intended that records relating to the
investigation and detection of crime be confidential forever.  Policy
arguments such as these “are for the Legislature and not this Court, and we
must implement the statute as it is written.”  In re Butson, 2006
VT 10, ¶ 7, 179 Vt. 599, 892 A.2d 255 (mem.).  
¶ 16.        
The Herald also cites Walton, 154 Vt. 15, 573 A.2d 296, and Trombley,
160 Vt. 101, 624 A.2d 857, in support of its arguments.  We do not find
sufficient support for the Herald’s position in these decisions.  In Walton,
we considered whether the Department of Public Safety and the Town of St.
Johnsbury were required to disclose the names of individuals who had been
issued citations.  The defendants argued that the citations were exempt
from disclosure under 1 V.S.A. § 317(c)(5) as “records dealing with the
detection and investigation of crime.”  We rejected this argument, categorizing
such records as the “product” of an investigation, rather than a record of such
investigation.  Walton, 154 Vt. at 28, 573 A.2d at 303.
¶ 17.        
The Herald asserts that our decision reflects the presence of a
time-based element in § 317(c)(5) because the decision was based, in part, on
the timing associated with an arrest, which occurs after the investigation of a
crime.  It reasons that the records here similarly should fall outside the
terms of the exemption because the “detection and investigation of [the] crime”
is complete.  
¶ 18.        
We reject these arguments.  In Walton, we looked to the
nature of a citation record in considering the threshold question of whether
the records at issue dealt with the investigation or detection of crime; that
point is uncontested here.  Obviously, the records here could not be
classified as the “product” of an investigation, as in Walton, without
completely ignoring the relevant statutory language and obviating the purpose
of the exemption.  We presume that the Legislature did not intend such an
absurd result.  TD Banknorth, N.A. v. Dep’t of Taxes, 2008 VT 120,
¶ 32, 185 Vt. 45, 967 A.2d 1148 (presumption against statutory construction
that leads to absurd results).  Neither the reasoning of Walton,
nor its result determines whether § 317(c)(5) contains an unstated
temporal limitation for purposes of disclosing investigation records.
¶ 19.        
The Herald also cites numerous opinions from other jurisdictions as
supporting its argument for a temporal limitation on investigative
material.  In fact, decisions from other jurisdictions support the
interpretation we have adopted.  The difficulty in using such decisions is
that, although states have adopted equivalents to the PRA, the language of the
statutes varies widely.  Thus, many of the cases cited by the Herald
involve statutory provisions with qualifying language not present in §
317(c)(5).  See, e.g., Christy v. Palm Beach Cnty. Sheriff’s Office,
698 So. 2d 1365, 1366-67 (Fla. Dist. Ct. App. 1997) (considering “exemptions
from disclosure . . . for active criminal
intelligence information and active criminal investigative information,”
and concluding “[t]here is nothing in the record to suggest that the
information contained in the file is active” (quotations omitted and emphases
added)); Rafuse v. Stryker, 813 N.E.2d 558, 560 n.3 (Mass. App. Ct.
2004) (considering statute that exempts “investigatory materials necessarily
compiled out of the public view by law enforcement . . . the disclosure of
which materials would probably so prejudice the possibility of effective law
enforcement that such disclosure would not be in the public interest”
(emphasis added)); Linzmeyer v. Forcey, 646 N.W.2d 811, 816 (Wis. 2002)
(considering statute that limits exemption to records containing identifiable
information that “is collected or maintained in connection with a complaint,
investigation or other circumstances that may lead to an enforcement action”
and concluding that the exemption does not apply “where the investigation has
been closed and where it has been confirmed that there is no chance that the
Report will lead to an enforcement action” (citation omitted and emphasis
added)).[3] 
Thus, they show us how the Legislature could have addressed the Herald’s policy
concerns, but did not.
¶ 20.        
More helpful are decisions that have determined that, in the absence of
specific temporal language, there is no temporal limitation on an exemption of
disclosure of records related to the detection or investigation of crime. 
For example, in Williams v. Superior Court, the Supreme Court of
California considered a newspaper’s request for access to a sheriff’s records
of disciplinary proceedings against two deputies.  852 P.2d 377 (Cal.
1993).  The court was required to interpret a subdivision of the
California Public Records Act that exempted from disclosure “investigatory or
security files compiled by . . . [a] state or local police agency” and
“investigatory or security files compiled by any other state or local agency
for correctional, law enforcement, or licensing purposes.”  Id. at
384 (citation omitted).  Considering the statute’s language, the court
found it “noteworthy that nothing therein purports to place a time limit on the
exemption for investigatory files.”  Id. at 390.  
¶ 21.        
The court ultimately held that, according to its terms, “the exemption
for investigatory files does not terminate with the conclusion of the
investigation.  Once an investigation . . . has come into being . . .
materials that relate to the investigation and, thus, properly belong in the
file, remain exempt subject to the terms of the statute.”  Id. at
393.[4] 
Courts from other jurisdictions have reached similar conclusions.  See,
e.g., State ex rel. Polovischak v. Mayfield, 552 N.E.2d 635, 637-38
(Ohio 1990) (considering statute exempting from disclosure “confidential law
enforcement investigatory records,” defined as “any record that pertains to a
law enforcement matter of a criminal, quasi-criminal, civil, or administrative
nature, but only to the extent that the release of the record would create a
high probability of disclosure” of certain specified criteria, and finding that
the absence of evidence of enforcement activity is not “necessarily fatal” to
exemption and rejecting the notion that “mere passage of time without resulting
enforcement action places the record into the public realm” even if the investigation
was no longer open (citation omitted)); cf. Rural Hous. Alliance v. U.S.
Dep’t of Agric., 498 F.2d 73, 79-80 (D.C. Cir. 1974) (considering provision
in federal Freedom of Information Act, which exempts from disclosure
“investigatory files compiled for law enforcement purposes except to the extent
available by law to a party other than an agency,” and concluding that the
government “need not show imminent adjudicatory proceedings or the concrete
prospect of enforcement proceedings,” rather, it must show “that the
investigatory files were compiled for adjudicative or enforcement purposes”
(citations omitted)).  We are thus not persuaded by the cases cited by the
Herald.  
¶ 22.        
We have a similar reaction to Trombley.  Trombley
involved a different exemption than that at issue here, specifically, 1 V.S.A.
§ 317(c)(7), which exempts, in relevant part, “personal documents relating
to an individual, including information in any files maintained to hire,
evaluate, promote or discipline any employee of a public agency.”  We read
this exemption to prohibit disclosure of “personal documents,” wherever such
documents are filed.  Trombley, 160 Vt. at 108, 624 A.2d at
862.  In other words, documents are evaluated under this exemption based
on their content, and not simply whether they have been included in a
particular type of file.  
¶ 23.        
In reaching our conclusion, we found the term “personal documents” to be
vague and potentially limitless.  Id. at 109, 624 A.2d at
863.  “In its broadest sense,” we explained, the term would include “any
document about specific people,” including most court opinions.  Id. 
Because such a construction would consume the disclosure rule, we limited the
exemption to instances where disclosure would invade personal privacy.  Id. 
We recognized that § 317(c)(7) did not explicitly contain a privacy
proviso, but we found support for incorporating such a provision in the PRA’s
statement of general policy.  Id. at 109-10, 624 A.2d at 863; see 1
V.S.A. § 315 (recognizing the right of persons “to privacy in their
personal . . . pursuits” which ought to be protected unless
“specific information is needed to review the action of a government
officer”).  We thus directed the trial court to balance the public
interest in disclosure against the harm to the individual in determining
whether specific records should be released under that exemption.  Trombley,
160 Vt. at 110, 624 A.2d at 863 (explaining that statute exempts “personal
documents only if they 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” (quotation omitted)); see also Kade
v. Smith, 2006 VT 44, ¶ 8, 180 Vt. 554, 904 A.2d 1080 (mem.) (similarly directing
trial court to balance interests in privacy and disclosure in deciding if
performance evaluations should be disclosed under § 317(c)(7), including
considering the relevance, if any, of the records to the public interest for
which they are sought, and any other factors that may affect the
balance).  
¶ 24.        
The Herald urges us to adopt a similar balancing test here.  Unlike
Trombley, however, we do not find the language used in § 317(c)(5) to be
“vague and potentially limitless.”  Instead, we read this provision to
reflect the Legislature’s specific intent to permanently shield all “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.”  The statute is broadly worded and it provides a categorical
exemption for such records irrespective of their specific content.  See Caledonian-Record
Publ’g Co. v. Vt. State Colls., 2003 VT 78, ¶ 9, 175 Vt. 438, 833 A.2d
1273 (reaching similar conclusion as to exemption for “student records,”
explaining that while term was undefined, the language of the exception was
broad and unqualified, and nothing in the PRA suggested any “content-based restrictions
limiting the exception, for example, to student academic performance, financial
aid, or other strictly scholastic subjects, or excluding records relating to
violations of the student ethics code or the criminal law”).  It is not
appropriate under these circumstances to read a balancing test into the
statute.  See O’Neill, 165 Vt. at 275, 682 A.2d at 946 (“It is
inappropriate to read into a statute something which is not there unless it is necessary
in order to make the statute effective.”).  
¶ 25.        
Because § 317(c)(5) provides a record-based, rather than content-based,
limitation, we also reject the Herald’s argument that the court could release
investigatory records but require redaction of information.  The Herald
cites two cases where we directed the trial court to consider releasing
redacted versions of records.  Both involved the “personal documents”
exemption at issue in Trombley.  See Kade, 2006 VT 44, ¶ 14;
Norman v. Vt. Office of Court Adm’r, 2004 VT 13, ¶ 7, 176 Vt. 593, 844
A.2d 769 (mem.).  
¶ 26.        
As reflected above, Trombley specifically required the court to
weigh the public interest in disclosure against the privacy interest in the
information involved.  160 Vt. at 110, 624 A.2d at 863.  This is
necessarily an information-based balancing process that lends itself to the use
of redaction to keep confidential only the information that invades individual
privacy.  See Kade, 2006 VT 44, ¶ 14.  The exception in
§ 317(c)(5) is not information-based.  There is no balancing process
involved in the implementation of § 317(c)(5) and no statutory standards
the court could use to determine what information to disclose and what to
redact.  Redaction does not apply.
¶ 27.        
Finally, we reject the Herald’s argument that the records at issue must
be disclosed because they “relat[e] to [the] management and direction of a law
enforcement agency.”  1 V.S.A. § 317(c)(5).  According to the Herald,
any investigation into illegal activity by law enforcement individuals, by definition,
falls within this proviso.  This is so, the Herald maintains, because the
target of the investigation is not an ordinary citizen but someone who is
responsible for seeing that the laws are faithfully executed.
¶ 28.        
The Herald’s interpretation finds no support in the plain language of
the statute or in its legislative history. The statute draws no distinction
between those records that deal with a criminal investigation of a police
officer, and those involving a criminal investigation of other citizens.[5]  Classifying the records here as
falling within the management proviso would obviate the language that
specifically addresses and exempts records dealing with the detection and
investigation of crime.  It would swallow the exemption.  See State
v. Tierney, 138 Vt. 163, 165, 412 A.2d 298, 299 (1980) (in construing a
statute, Court considers it “as a whole, and, if possible, gives effect to
every word, clause and sentence”).  
¶ 29.        
Nothing in the legislative history compels a contrary conclusion, or
shows that the management proviso was intended to make public actual
investigation files such as those at issue here.  As the trial court
found, the records here were directly related to a specific investigation; 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.”
¶ 30.        
Having found the investigatory files entitled to a blanket exemption
under 1 V.S.A. § 317(c)(5), we need not consider whether certain
materials within the files are also exempt under § 317(c)(1)
(exempting “records which are by law designated confidential or by a similar
term”).  As set forth above, we do not engage in a content-based analysis
of these records once they have been determined to be “records dealing with the
detection and investigation of crime.”  Such records are wholly exempt
from public access.  We therefore do not address the Herald’s arguments
concerning inapplicability of the inquest secrecy statute, 13 V.S.A. § 5134, to
the general disclosure exemption in 1 V.S.A. § 317(c)(1) for records
designated confidential by law.[6] 
  
¶ 31.        
No party argued below, nor do they argue on appeal, that the inquest
records are judicial branch records that must be disclosed under the Rules for
Public Access to Court Records (PACR).  This novel issue is raised sua
sponte by the dissent without notice or opportunity for briefing and argument
by the parties.  It is unnecessary and inappropriate to reach this issue
here.  See State v. Taylor, 145 Vt. 437, 439, 491 A.2d 1034, 1035
(1985) (“It is only in the rare and extraordinary case that this Court will
consider, sua sponte, issues not properly raised on appeal before us.”); State
v. Settle, 141 Vt. 58, 61, 442 A.2d 1314, 1315 (1982) (“We have held, and
we reiterate here that, in all but a few exceptional instances, matters which
are not briefed will not be considered on appeal.”).  
¶ 32.        
As set forth above, this appeal involves a PRA request made to the VSP
and the Office of the Attorney General for materials possessed by those
entities.  See 1 V.S.A. § 317(b) (defining “public record” as “any written
or recorded information, regardless of physical form or characteristics, which
is produced or acquired in the course of public agency business”
(emphasis added)).  We are not here considering an appeal from a superior
court clerk’s denial of a request for judicial branch records.  See PACR
6(f)-(h) (describing inspection process for “case records” and setting forth
procedure by which person aggrieved by decision made by a “case record
custodian” with respect to a request for access to a “case record” can appeal).[7]
¶ 33.        
The Herald last asserts that if we construe the PRA to bar disclosure of
the records sought here, we must conclude that the exemption for records
dealing with the detection and investigation of crime is unconstitutional as
applied in this case.  It claims that the Vermont Constitution,
particularly Chapter I, Article 6, mandates disclosure.  The Herald
contends that, if we construe the PRA to prevent disclosure, we should conclude
that the exemption for records dealing with the detection and investigation of
crime is unconstitutional as applied in this case.  The State responds
that all constitutional arguments made by the Herald on appeal were
insufficiently raised before the trial court.  We will not entertain
arguments on appeal if they were not preserved in the trial court.  Progressive
Ins. Co. v. Brown, 2008 VT 103, ¶ 8, 184 Vt. 388, 966 A.2d 666.  In
order to preserve an argument, a party must present an argument “with specificity
and clarity.”  Id. (quotation omitted).  
¶ 34.        
Although it would have been preferable that the Herald raise its
constitutional arguments more pointedly below, we do find it appropriate to
address these arguments.  The Herald explicitly devoted multiple
paragraphs, both in its initial complaint, and in its motion for summary
judgment, to the Vermont and Federal Constitutions.  These arguments made
sufficiently clear that the Herald believed that the PRA must be interpreted in
light of the constitutional issues implicated.  
¶ 35.        
We understand the Herald’s constitutional argument to be part of the
Herald’s more general argument that the PRA should not be interpreted to
prevent public access here.  In this light, the constitutional issues are
not easily segregated from the question of statutory interpretation, which we
considered above.  Although the Herald has drawn more attention to the
constitutional issues on appeal, it is not surprising that an argument
presented as a matter of constitutional avoidance in a trial court should take
on the complexion of a contingent argument for unconstitutionality at the
appellate level.  In light of all these considerations and the fact that
the constitutional issues were briefed by both sides, we find it appropriate to
address them here.
¶ 36.        
We reject the Herald’s argument that the Vermont Constitution itself
mandates disclosure in this case.  The Herald relies primarily on Chapter
I, Article 6, of the Vermont Constitution, which states, “[t]hat all power
being originally inherent in and consequently derived from the people,
therefore, all officers of government, whether legislative or executive, are
their trustees and servants; and at all times, in a legal way, accountable to
them.”  This Article represents a core statement of founding
principles.  The provision was originally present in the Vermont
Constitution of 1777, ch. I, art. 5, having there been lifted nearly verbatim
from the Pennsylvania Constitution of 1776.  Pa. Const. of 1776, Declaration
of Rights, cl. IV.  The framers of the Pennsylvania Constitution drew
their inspiration, in turn, from the Virginia Constitution of 1776, drafted by
George Mason, which provided “[t]hat all power is vested in, and consequently
derived from, the people; that magistrates are their trustees and servants, and
at all times amenable to them.”  Va. Const. of 1776, Bill of Rights, §
2.  
¶ 37.        
Precisely because of its broad significance as a statement of principle,
Article 6 is not the source for mandating disclosure in this case. 
Article 6 does not provide the specificity necessary to create legal
entitlements with definite character.  See Benning v. State, 161
Vt. 472, 477, 641 A.2d 757, 759 (1994) (“The specific words on which
plaintiffs rely lack the specificity that would show the presence of concrete
rights applicable to these circumstances.”); State v. Carruth, 85 Vt.
271, 273-74, 81 A. 922, 923 (1911) (“Many things contained in the Bill of
Rights found in our state Constitutions are not, and from the very nature of
the case cannot be, so certain and definite in character as to form rules for
judicial decisions; and they are declared rather as guides to the legislative
judgment than as marking an absolute limitation of power.” (quotation omitted));
see also P. Teachout, “Trustees and Servants”: Government Accountability in
Early Vermont, 31 Vt. L. Rev. 857, 863 (2007) (“What the Vermont framers
gave us when they declared that government officials were to be accountable to
the people was not an idea with fixed political content but rather commitment
to a vision.”).  
¶ 38.        
For this reason, we have explained that Article 6 cannot normally be the
basis for judicially enforceable rights.  “Article 6 is but a truism of a
republican form of government, and provides no private right of action.
 The remedy contemplated by it is that of popular election.”  Welch
v. Seery, 138 Vt. 126, 128, 411 A.2d 1351, 1352 (1980). 
Accordingly, this Court has never issued relief solely on the basis of Article
6.[8]  Cf. Benning, 161 Vt. at
476-77, 641 A.2d at 759 (noting that the Court had never “struck down an act of
the Vermont Legislature solely because of a violation of Article 1”).
 Other states have similarly viewed their analogous constitutional
provisions.  See, e.g., Kerpelman v. Bd. of Pub. Works, 276 A.2d
56, 61 (Md. 1971) (stating that the Maryland constitutional provision that
“persons invested with the legislative or executive powers of Government are
Trustees of the Public, and, as such, accountable for their conduct” is
“hortatory in nature”).
¶ 39.        
This is not to say that Article 6 must be entirely without practical
significance, but rather “the article is not self-executing.”  Shields
v. Gerhart, 163 Vt. 219, 230, 658 A.2d 924, 932 (1995) (citations omitted).
 Because Article 6 provides general guiding principles rather than
specific rights, direct judicial enforcement could occur only where the
Legislature has acted so entirely contrary to the Article as to positively do
violence to the vision of government described therein.  The Legislature
certainly may, in contrast, realize the general aims of Article 6 with more
concrete rights by enacting legislation like the PRA.  See Rowe v.
Brown, 157 Vt. 373, 377, 599 A.2d 333, 336 (1991) (“[F]or enforcement of
the constitutional maxim, other than popular election, plaintiffs must avail
themselves of the legislative enactments giving effect to Article 6.”); Welch,
138 Vt. at 128, 411 A.2d at 1352 (“The maxim embodied in Article 6 is
nevertheless given effect through multifarious legislative enactments.”). 
In Town of Brattleboro v. Garfield, we noted that Vermont’s Open Meeting
Law is one such implementation of Article 6.  2006 VT 56, ¶ 16, 180 Vt.
90, 904 A.2d 1157.  The PRA also states that it is an implementation of
Chapter I, Article 6.  See 1 V.S.A. § 315. 
¶ 40.        
To say that Article 6 is not self-executing is to say that the
Legislature may select the means and details of executing the broad principles
articulated in Article 6.  Thus, the realization of Article 6’s
philosophical vision is subject to those reasonable practical contours that the
Legislature should set forth.  To the extent that § 317(c)(5) exempts
from disclosure the records in this case, the Legislature has determined that
the principle embodied in Article 6 does not mandate disclosure.  We will
not second-guess that determination.
Affirmed. 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 

                                                                       
   Associate Justice
 
 
¶ 41.        
DOOLEY, J., concurring in part and dissenting in part.  I
concur with the majority decision that 1 V.S.A. § 317(c)(5) exempts from public
access executive branch records dealing with the detection and investigation of
crime, even if the criminal investigation is complete.  I think that
result is required by the wording of the statute, irrespective of the policy
arguments of the Herald.  I also do not believe the statute, so construed,
violates Article 6 of Chapter I of the Vermont Constitution.  I add only
that the exemption appears overbroad and prevents public oversight of how law
enforcement officials do their job, even in instances where there is no reason
for secrecy—such as protecting confidential sources of information.  I
urge the Legislature to reexamine the wording of the exemption.
¶ 42.        
I also agree that the proviso in § 317(c)(5) for “records relating to
management and direction of a law enforcement agency” does not apply here,
although for reasons different from the majority.  The Herald’s assertion
that the Legislature may have wanted transparency if the investigation of crime
involves investigating the actions of a law enforcement agency or its employees
is plausible.  Thus, I do not agree with the majority’s conclusion that
the Herald’s position would “swallow the exemption.”  Ante, ¶
28.  
¶ 43.        
The fundamental difficulty that I have with the Herald’s argument is
that it is based on an underlying understanding that the “law enforcement
agency” in the language is the agency being investigated rather than the agency
conducting the investigation.  Probably the most obvious reason that this
understanding is incorrect is that the proviso covers only records related to
the management and direction of the agency.  If the Herald’s construction
were correct, the proviso would cover any criminal activity by the agency and
be directed primarily at incidents of criminal activity rather than at the
management and direction of the agency.  Indeed, in this case, the Herald
struggles to demonstrate how the criminal investigation was of the management
of the police academy rather than the criminal activity of one or more
employees.
¶ 44.        
I believe the proper construction is that the law enforcement agency in
the proviso is the agency conducting the investigation.  The proviso is
needed because the exemption from public access is so broad.  Since the
purpose of a law enforcement agency is the investigation of crime, the wording
of § 317(c)(5) threatens to make opaque all records of the agency—even those
that do not involve investigation of particular cases.  Thus, the proviso
is needed to give public access to records that do not deal with the
investigation of particular cases but instead with the overall management and
direction of the agency.  Portions of the legislative history of
§ 317(c)(5), provided by the Herald in its brief, demonstrate that the
proviso was added at the urging of the Vermont Public Interest Research Group
(VPIRG) exactly for this purpose.[9] 
Since the records the Herald seeks do not relate to the management and
direction of the VSP, the proviso does not apply.
¶ 45.        
This brings me to my main disagreement with the majority’s decision—its
conclusion that the inquest records are not publicly accessible in this
case.  I particularly disagree with the majority’s rationale for its holding—“No
party argued below, nor do they argue on appeal, that the inquest records are
judicial branch records that must be disclosed under the Rules for Public
Access to Court Records (PACR).”  Ante, ¶ 31.  This is a
rationale that was not used by the superior court or raised by
defendants.  It exactly fits the majority’s characterization of this
dissent—it is a “novel issue” “raised sua sponte” “without notice or
opportunity for briefing and argument by the parties.”  Ante, ¶ 31.
¶ 46.        
It is also wrong.  In fact, the Herald argued both in this Court
and in the superior court that the inquest records are judicial records that
must be disclosed.  The fact that they did not cite the Rules for Public
Access to Court Records is irrelevant because those rules made no change in the
law with respect to inquest records.  I believe that we should decide this
case by reviewing the rationale employed by the trial court and deciding this
issue on the merits. 
¶ 47.        
According to the affidavit of the assistant attorney general, the
records at issue in this case include “an application for an inquest,” “other
documents relating to the inquest,” and “materials obtained pursuant to the
inquest.”  The superior court denied access to these materials pursuant to
1 V.S.A. § 317(c)(1), the disclosure exemption that applies to “records which
by law are designated confidential.”  It ruled that the records are by law
designated confidential by virtue of 13 V.S.A. § 5134, which provides:
 
[A] stenographer shall be sworn to keep secret all matters and things coming
before the judge at such inquest.  Such oath shall be in writing, and the
stenographer shall not disclose testimony so taken by him or her except to the
attorney general, state’s attorney and the judge holding the inquest.  The
minutes of the testimony so taken shall be the property of the state and the
same or copy thereof shall not go out of the possession of such attorney
general, state’s attorney or their successors except to an attorney appointed
by the supreme court or superior court to act in the place of or assist a
state’s attorney.
 
The stenographer described in the
section is hired to “take and transcribe the testimony of the witnesses for the
use of the state’s attorney.”  Id. § 5133.
¶ 48.        
The majority opinion summarily dismisses the arguments concerning the
inquest materials without describing what happened in this case or providing
the information necessary for decision on the merits.  In my opinion,
three points are critical to the decision.  Because the majority has
chosen to reject the Herald’s arguments based on a lack of preservation, I
start with a discussion of the procedural context for our discussion.
¶ 49.        
As stated by the majority, a reporter from the Herald sought records related
to the death and possible criminal activity of David McMullen from the VSP and
Attorney General’s office.  Those agencies denied the request without
disclosing that some of the records were inquest records.  They disclosed
the existence of the inquest records for the first time in their response to
the Herald’s motion for summary judgment.  The Herald immediately
responded that the inquest materials were subject to different
regulations.  The Herald noted that the inquest materials were court
records subject to 4 V.S.A. § 693,[10]
the disclosure of which could not be controlled by the Attorney General. 
It noted that “the Attorney General has failed to provide even basic
information to examine the docket for this inquest, including the name of the
case, the location of the court and the docket number.”  It concluded with
a request that the superior court release the inquest records: “Thus, the Court
should release the inquest materials because the statute, case law, history of
the inquest, and facts all warrant disclosure in this case.”  The
defendants responded that inquest records are confidential by statute, 13
V.S.A. § 5134, and that, in any event, the criminal investigation exemption
under the PRA, 1 V.S.A. § 317(c)(5), controls inquest records.
¶ 50.        
The superior court ruled that the inquest records are confidential under
13 V.S.A. § 5134, a ruling I believe is wrong as I discuss infra. 
The Herald then moved in this Court for us to order disclosure of the
records.  Defendants opposed the motion, in part, on the grounds that the
Herald asked the trial court to disclose the records and is appealing the
refusal of the court to do so.  A Justice of this Court deferred the
motion to the merits.  The majority has denied this motion without any
explanation.
¶ 51.        
In making its arguments to the superior court and this Court, the Herald
has relied primarily on two decisions of this Court.  The first is In
re D.L., 164 Vt. 223, 230, 669 A.2d 1172, 1177 (1995), which holds that the
inquest is an exercise of judicial power and, thus, necessarily that inquest
records are judicial records.  The second is In re Sealed Documents,
172 Vt. 152, 156, 772 A.2d 518, 522-23 (2001), which held that search warrant
records are publicly accessible court records, subject to closure in specific
instances, even though they are records that deal with the detection and
investigation of crime.  I agree that these cases control the decision
before us and require that we hold that the inquest records are
accessible.  There is nothing novel in either the Herald’s argument or the
proper analysis of it.
¶ 52.        
The second point involves the true nature of the vast majority of modern
inquests.  In denying access to the inquest records, the superior court
relied upon the statute that makes confidential the record of the testimonial
inquest proceeding taken by a stenographer.  In fact, the testimonial
inquest procedure is, for the most part, a rarely used historical artifact, left
over from the days when the prosecutor did not have the evidence-gathering
tools that exist today.  There have been few, if any, inquest proceedings
in which testimony was taken in years.  Instead, the inquest has been
turned into a proceeding in which the court issues investigatory subpoenas for
documents or evidence sought by law enforcement officers, with no in-court
proceeding and no testimony.  The documents or evidence are then provided
directly to the law enforcement officers who use them in their investigation. 
The actual process is described in our recent decisions in State v. Simmons,
2011 VT 69, ¶¶ 3-4, ___ Vt. ___, 27 A.3d 1065, and In re Inquest Subpoena
(WCAX), 2005 VT 103, ¶¶ 2-4, 179 Vt. 12, 890 A.2d 1240.  It is telling
that proceedings and documents in the latter case were entirely publicly
accessible—directly contrary to the superior court decision in this case. 

¶ 53.        
More importantly, the testimonial inquest procedure does not describe
this case.  The inquest process in this case consists in its entirety of
four documents.  First, a prosecutor and police officer applied for an
inquest on a standard form, District Court Form 454, printed by the Judiciary
and made available to law enforcement officers.  The form provides both
the request for the inquest and the court’s approval.  Second, the police
officer attached an affidavit to the request, specifying the grounds for the
request.  Third, the prosecutor and law enforcement officers filed a
subpoena for the judge to sign, and the judge signed it.  In a case like
this one, the subpoena specifies the holder of the records and the records and
information subject to the subpoena and provides a date by which the records
and information are to be brought to court.  It states, however, that the
recipient of the subpoena can comply by sending the information to a specified
law enforcement officer or prosecutor.  The order for an inquest specifies
no date for a hearing and does not appoint a stenographer.  The order and
subpoena are faxed to the keeper of the records.  Finally, the entity
subject to the subpoena complied by fax.  The response did not go to the
court.
¶ 54.        
It is obvious that the investigatory subpoena is being used in cases
where the record keeper will not release the record or information without a
court order.  Once the court order is forthcoming, there is no need for
the record keeper to deal with the court, especially given the invitation to
provide the record or information directly to the law enforcement officer or prosecutor. 
That occurred in this case.  
¶ 55.        
The essence of an inquest is described in 13 V.S.A. § 5132: “A judge may
issue necessary process to bring witnesses before him or her to give evidence
in any matter there under investigation.  The witnesses shall be
sworn.”  In the current use of the inquest statute, there will be no
witnesses and no witnesses will be sworn.  There will be no “testimony of
the witnesses” and no stenographer.  See id. at § 5133.[11] 
The State is taking the title of the procedure—“inquest”—and using it for a
different purpose and procedure.
¶ 56.        
In many ways, the inquest procedure, as it is currently used, is most
akin to a search warrant because it is authorizing the gathering of evidence
involuntarily from a person, including a corporation or other legal
entity.  We noted this identity of purpose in In re Inquest Subpoena
(WCAX), 2005 VT 103, ¶ 11 n.1.  There is no policy reason to
distinguish a search warrant and the records used to obtain the warrant from an
inquest investigatory subpoena and the records used to obtain the subpoena.
¶ 57.        
My third preliminary point is that the inquest is “viewed as the
exercise of judicial power.”  In re D.L., 164 Vt. at 230, 669 A.2d
at 1177.  Again, we likened the judicial role in an inquest to the
issuance of a search warrant, id. at 231, 669 A.2d at 1178, and
concluded “that the [inquest] statute ‘authorizes the courts to perform a
function so closely connected with and so far incidental to strictly judicial
proceedings that the courts in obeying the statute would not be exercising
executive or nonjudicial powers,’ ” id. at 233, 669 A.2d at 1179
(quoting Lachapelle v. United Shoe Mach. Corp., 61 N.E.2d 8, 10 (Mass.
1945)).  Thus, despite the investigatory purpose, an inquest is a judicial
proceeding and inquest records are court records.
¶ 58.        
Like the issuance of a search warrant, the issuance of an investigatory
subpoena is both a power critical to law enforcement and an intrusion into the
basic rights of citizens.  It is one of the greatest powers of the
judiciary and, because of the invasion of citizens’ privacy interests, a power
that must be carefully regulated to ensure it is not misused.  There are
reasons particularly for oversight of the subpoena power.  Unlike the
search warrant power, the constitutional limitations on the subpoena power are
very limited and more unclear.  See generally 2 W. LaFave, Search &
Seizure § 4.13(a) (4th ed. 2004).  We held in D.L. that a judge can
refuse to grant a request for an inquest, which necessarily includes the power
to refuse to grant a request for a subpoena, but we did not establish standards
for exercise of that discretion.  164 Vt. at 234, 669 A.2d at
1179-80.  Thus, subject to very limited constitutional restrictions, a
judge may decide to grant a subpoena request, or not, with no specification of
reasons and with limited—or no—specification of grounds.
¶ 59.        
Three out of four of the records withheld in this case are judicial
branch records because they are in the control of the judiciary and involve a
judicial action and the basis for that action.  This is the holding of State
v. Tallman, 148 Vt. 465, 472-73, 537 A.2d 422, 426-27 (1987), a case in
which the State also argued that the exemption of 1 V.S.A. § 317(c)(5) followed
criminal investigation records into the court.  We held in Tallman
that affidavits of probable cause were executive branch records controlled by §
317(c)(5) “[p]rior to inspection by a court.”  Id. at 472, 537 A.2d
at 426.  After review by a court, access was controlled by Title 4, which
made them publicly accessible.[12] 
Tallman was followed with respect to search warrant records in In re
Sealed Documents, 172 Vt. at 158-59, 772 A.2d at 524-25.  The rule of Tallman
and In re Sealed Documents is now codified in PACR 3(j).[13]  
¶ 60.        
The three judicial records are the application for the inquest, the
affidavit, and the subpoena.  The defendants in this case have the
identical records, either copies of the originals or the originals.  The
fourth record containing the information specified in the subpoena is not a
judicial branch record because it never has been in the possession of the
judiciary and was not the basis for judicial action.  I agree that this
record is governed by the PRA and is not subject to public access under 1
V.S.A. § 317(c)(5).
¶ 61.        
With the above three points in mind, I think it clear that there is no
statutory bar to public access to the inquest records at issue in this
case.  While the statute read broadly provides that the inquest
testimonial[14] hearing is
secret, and public access is prohibited, nothing in its language suggests that
documents created in connection with a so-called “inquest” that never will
produce a testimonial hearing are covered by the statute.  In this modern
inquest, there is no evidentiary hearing and no stenographer.  Our case
law has interpreted the statutes to make the evidentiary hearing secret, see Alexander,
130 Vt. at 60, 286 A.2d at 265, but we have never held secret anything beyond
the evidentiary hearing and its content.  It is an unjustified expansion
of the statute to hold that its coverage is greater; nothing in the statute
supports that expansion.
¶ 62.        
There is one other ground for the majority opinion, and it requires
special examination because I believe that it is directly contrary to how we
should treat access-to-public-records appeals.  The majority has
apparently ruled that the Herald loses, in part, because it failed to request
the inquest records from a superior court clerk.  The public records
request in this case was made in July 2010, nearly two years ago. 
Defendants did not disclose in their response to the request that part of the
records being sought were inquest records.  They disclosed the full nature
of the records only in the litigation in the trial court in response to the
Herald’s motion for summary judgment.  The Herald immediately responded
with a request that the superior judge, before whom the Herald was appearing,
release the judicial records, noting that it did not know where and when the inquest
occurred because the defendants did not disclose that information.  The
Herald has renewed that motion here.
¶ 63.        
The law specifies no venue for inquest proceedings.  The inquest
here was requested by an assistant attorney general based on the affidavit of a
state police officer.  The request could have been made to any superior
court, including in Washington County.  As it happened, the inquest
request was made in Rutland County, but the Herald had no way to determine
this.  Indeed, it appears that the Herald is learning this for the first
time by reading this dissent.  Like search warrants, there is no way to
determine where inquest records exist, if at all.  The inability to locate
search warrant records has been a subject of recent controversy, with a bill to
require a searchable database currently pending in the Vermont Senate. 
See S.138, 2011-2012 Gen. Assem., Adj. Sess. (Vt. 2012).  The exact same
problem exists with respect to inquest records.
¶ 64.        
Whether we are acting under the PRA or PACR, government records are
presumed accessible unless the custodian can show that they come within an
exemption.  It is the custodian’s burden to identify the exemption, not
the requester’s burden.  The processing of a public records requests is to
be “expedited in every way.”  1 V.S.A. § 319(b); see also PACR 6(h)
(directing that appeal of denial of access to court records be “decided as soon
as possible”).  
¶ 65.        
In the face of the clear deviation from the intended expeditious
process, the majority has introduced a new technicality to deny access to
records—the record must be requested from a superior court clerk, apparently
the clerk of the county where the record resides.  By this decision, this
Court is creating an elaborate hide-and-seek game that relies upon artificial
barriers to deny access without ever reaching the merits.  Thus, after
eighteen months of trying, the Herald is told that its request for the inquest
records will not be honored because it failed to meet a procedural requirement
raised for the first time by this Court and with which it could not comply
because it was denied the information to do so.  
¶ 66.        
The issue of access to the inquest records is wholly one of law that has
been decided by the superior court in this case and has been briefed and argued
in this Court.  The majority’s objection is a pure technicality; nothing
would be gained by a decision of the clerk for Rutland Unit or of the superior
judge sitting in Rutland County.  None of the parties raised the objection
of the majority.  If anything, it is a matter of venue that can be, and
was, waived.  By separate motion, the Herald has asked that we order the
release of the inquest records.  We should grant that motion or, in any
case, decide it on the merits and not a technicality.
¶ 67.        
There is another reason why it is inappropriate for this Court to
dismiss the inquest record issue without resolving it.  As the majority
states, this case started as a request to defendants to view certain public
records they possess.  Those records include the three inquest-related
records at issue.  Defendants have either copies or originals of those
records.  Nothing in the PRA or PACR distinguishes between originals and
copies.  Nor is the status of the holder of the record determinative of
the right to access the record under either of these governing legal
regimes.  Thus, the law governing access is the same whether the Herald
requests the records from a superior court clerk or the Attorney General or the
Vermont State Police.  These are judicial branch records governed by 4
V.S.A. § 652(4) and PACR.  Thus, the Herald can request these records
from defendants and has the same right of public access as if the request were
made to the superior court.
¶ 68.        
The idea that the accessibility of a record depends on from whom it is
requested is at odds with both common sense and the PRA, which explicitly
countenances “consultation” between agencies in responding to public records
requests.  See 1 V.S.A. § 318(a)(5)(C).  The existence of this
provision in the PRA implies a legislative intent that agencies not summarily
deny requests for documents in their possession on the grounds that they
originated in another agency.  Considering an analogous consultation
provision in the federal Freedom of Information Act (FOIA), 5 U.S.C.
§ 552, federal courts have held that refusing a request and instead
referring the applicant to the original source of the documents constitutes
improper withholding of documents.  See McGehee v. CIA, 697 F.2d
1095, 1110 (D.C. Cir. 1983) (“[An agency] cannot simply refuse to act on the
ground that the documents originated elsewhere.”); Founding Church of
Scientology of Washington, D.C., Inc. v. Bell, 603 F.2d 945, 953 n.54 (D.C.
Cir. 1979) (“Under FOIA an agency may take ten extra days in responding to a
document request when it must consult with an originating agency on whether a
requested document should be released.  But the agency that received the initial
FOIA request retains responsibility for producing the document.” (citation
omitted)); Davis v. FBI, 770 F. Supp. 2d 93, 104 n.8 (D.D.C. 2011)
(“Even if such records may be found in a court or another agency, the agency
receiving a FOIA request is obligated to produce any responsive records that
are in its custody and control at the time of the request.”).  In this
case, there was not even a referral; the request was flatly denied.  
¶ 69.        
We should hold that the Herald preserved its position that the judiciary
release the inquest records and defendants waived any objection based on the
location of the court to which the request was made.  Alternatively, we
should hold that the Herald has the same right of public access from defendants
as from the judiciary.  Once we reach the merits, we should release the
three inquest records that are judicial records.
¶ 70.        
I respectfully dissent from the majority decision with respect to the
inquest records.
 

¶ 71.        
   


 


 

                                                                       
   Associate Justice
 





[1] 
These minor exceptions included a press release and an email announcement,
which the court found were related to “management and direction of a law
enforcement agency” and therefore disclosable.  1 V.S.A. § 317(c)(5).


[2] 
The Herald does challenge the way in which the trial court conducted its review
of the documents at issue.  The court indicated that the records provided
included three compact discs (CDs), which the court did not review but
nonetheless described as “appear[ing] to include” interviews and the results of
forensic computer searches.  The court explained that the materials on the
CDs “were obtained by the criminal investigators assigned to the case and form
part of the records of that investigation.”  It found the content of the
CDs consistent with the markings on the CDs and the general description of the
investigation.  The Herald argues that the trial court could not have
described the CDs without reviewing them.  We have reviewed the material
on the CDs and find the trial court’s description accurate.
 
The Herald also challenges the trial court’s
conclusion that the State produced all of the records requested for in camera
inspection.  An assistant attorney general and the chief criminal
investigator for the VSP submitted affidavits describing the records subject to
the Herald’s request under the PRA.  Our review indicates that the records
described in the affidavits were provided to the trial court for in camera
inspection.  
 
The Herald is particularly concerned that no records
from the VDHR investigation are in the files inspected by the trial
court.  There is no indication that the VSP had access to the records of
the VDHR investigation; neither affidavit indicates that these records were
part of the investigatory files as prepared by the VSP or reviewed by the
Attorney General’s office.  The Herald never sought these records directly
from the VDHR.  For this reason, the trial court properly concluded that
the VDHR files were outside the scope of the Herald’s PRA request.
 
The Herald suggests that the trial court should have
ordered the State to produce a Vaughn index of the records
produced.  We do not believe that a Vaughn index is necessary, or
would even be helpful, where the records fall under a categorical exemption
from public access.  See Church of Scientology v. IRS, 792 F.2d
146, 152 (D.C. Cir. 1986) (“When . . . a claimed [Freedom of
Information Act, 5 U.S.C. § 552 (FOIA)] exemption consists of a generic
exclusion, dependent upon the category of records rather than the subject matter
which each individual record contains, resort to a Vaughn index is
futile.”).  The term Vaughn index arose from Vaughn v. Rosen,
484 F.2d 820, 827-28 (D.C. Cir. 1973), where the United States Court of Appeals
stated that, 
 
[e]ven if isolated
portions of the document are exempt under more than one exemption, it is
preposterous to contend that all of the information is equally exempt under all
of the alleged exemptions.  It seems probable that some portions may fit
under one exemption, while other segments fall under another, while still other
segments are not exempt at all and should be disclosed.  The itemization
and indexing that we herein require should reflect this.


[3] 
Other cases the Herald cites are distinguishable because they involve
exemptions pertaining to records other than those related to criminal
investigations.  See, e.g., Fincher v. Georgia, 497 S.E.2d 632,
635-36 (Ga. Ct. App. 1996) (considering situation where state board released investigatory
report, unrelated to criminal or civil charges, concerning claims that
plaintiff had engaged in misconduct while in board’s employment, and finding no
blanket exclusion exempting personnel records from disclosure and no other
applicable exceptions); State of Hawaii Org. of Police Officers v. Soc’y of
Prof’l Journalists, 927 P.2d 386, 391 (Haw. 1996) (applying Hawaii law that
excepted from the general disclosure requirement “[g]overnment records which,
if disclosed, would constitute a clearly unwarranted invasion of personal
privacy” (citation omitted)); Fed. Publ’ns, Inc. v. Boise City, 915 P.2d
21, 24-25 (Idaho 1996) (deciding that an “administrative review” authored by
person in charge of police department’s office of professional standards is not
exempt from disclosure); Worcester Telegram & Gazette v. Chief of Police,
787 N.E.2d 602, 605 (Mass. App. Ct. 2003) (noting that “investigatory
exemption” was not asserted, and recognizing that issue was whether material in
question falls under exemption for “personnel [file] or information”).
 


[4] 
The court did note, however, that this matter deserved legislative
attention.  It recognized that while there were good reasons for
maintaining the confidentiality of investigatory records even after an
investigation has ended, “those reasons lose force with the passage of
time.  Public policy does not demand that stale records be kept secret
when their disclosure can harm no one, and the public good would seem to require
a procedure by which a court may declare that the exemption for such records
has expired.”  Williams, 852 P.2d at 393 n.13.  
 


[5] 
We note that the Legislature has created a process designed “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).  The office of internal affairs
within the Department of Public Safety is charged with investigating “all
allegations of misconduct by members of the department,” 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).  The Legislature has specifically
exempted “records of the office of internal investigation of the department of
public safety” from public view.  1 V.S.A. § 317(c)(18); see also id.
§ 317(c)(1) (exempting from disclosure “records which by law are designated
confidential”); 20 V.S.A. § 1923(d) (stating that records of the office of
internal investigation shall be confidential with exceptions not relevant
here).  
 


[6] 
The Herald’s January 2011 motion requesting the release of inquest materials
pursuant to 13 V.S.A. § 5134 is also denied.  


[7] 
The dissent’s characterization of the Herald’s supposed “preservation” of this
point on appeal is overly generous and mistaken.  See post, ¶¶
48-50.  The Herald’s single sentence in its Opposition to Summary Judgment
that the inquest secrecy statute must be read in conjunction with 4 V.S.A.
§ 693, promoting, in the Herald’s words, “a general rule of openness for
court records” hardly preserves a claim on appeal for trial court production of
inquest records.  Nor did its argument that the court “release” the same
records, in the explicit context of demanding the records from the state police
or Attorney General, adequately raise a claim that the court itself should have
disclosed the records directly.  


[8]
 The Herald’s argument to the contrary is based on a misreading of Clement
v. Graham, 78 Vt. 290, 63 A. 146 (1906).  In that case, we found that
a 1904 law required that the Auditor of Accounts was required to keep and make
public certain records.  Article 6 was invoked in considering whether any
taxpayer or citizen would be entitled to seek a writ of mandamus to enforce
this statutory duty of the Auditor.  See id. at 316-18.  We
held that Article 6 did not create an affirmative duty on the part of a public
official, but merely specified to whom the statutory duty of a public official
was owed.  Cf. Pa. State Univ. v. State Emps.’ Ret. Bd., 935 A.2d
530, 537 (Pa. 2007) (invoking the analogous Pennsylvania constitutional
provision to conclude that the general public is not a mere third-party with
regard to disclosure of public records).  Unlike in that case, the Herald
here seeks to use Article 6 to create a duty to disclose on the part of the
State.  Cf. Buttolph v. Osborn, 119 Vt. 116, 118, 119 A.2d 686, 687
(1956) (“The petitioners cite Clement v. Graham.  This at once
brings us to the question: Is there any statute, or statutes, imposing a duty
as claimed by the petitioners?” (citation omitted)).


[9]  Initial drafts of § 317(c)(5) did
not include a proviso related to management and direction of a law enforcement
agency.  The addition of such a proviso was originally suggested by a
representative from VPIRG at a hearing to discuss a draft of the PRA held
before the House Committee on General and Military Affairs.  In explaining
his suggestion to add the proviso language, the VPIRG representative stated
that:
 
 
Section 317(5) is too broad.  Records dealing with the detection and
investigation of crime can include reports by a town board of seclectmen on the
conduct of its police chief, simple records of the number of arrests made in a
year and other similar statistical information.  I believe that the intent
of this section is to exempt from public view only actual investigatory
files.  The intent would be better served if the following provision were
added to the end of the subsection: “and provided that records relating to the
management, direction, or efficiency of a police force shall be considered as
public record.” 
 
The specific management and
direction proviso language present in the current PRA was recommended by a
member of the Committee on General and Military Affairs and was added to the House
draft of the PRA by amendment on March 28, 1975, approximately one month after
the VPIRG representative made his proviso suggestion. 


[10] 
The Legislature repealed 4 V.S.A. § 693 on June 3, 2010, because it was unnecessary
due to the reorganization of the judicial system to eliminate district
courts.  See 2009, No. 154 (Adj. Sess.), § 238(a)(1).  The largely
similar, presently applicable language for courts lies in 4 V.S.A.
§ 652(4).  In State v. Tallman, 148 Vt. 465, 472, 537 A.2d
422, 426 (1987), we construed § 652(4) and § 693 to have the same
meaning.


[11] 
I have serious questions about the validity of the current practice as an
inquest.  The Legislature has given prosecutors investigatory subpoena
power in specific types of cases, see 9 V.S.A. § 2460 (consumer fraud),
specifically describing the procedure.  The Legislature would know how to
create such a procedure here.  Nothing in the language of the inquest statutes
indicates that the Legislature intended this use of the inquest
procedure.  We have held that “the statutory authority under which
inquests are conducted is to be strictly construed, and will not be regarded as
including use for any purpose not clearly and intelligibly described in the
statutory language so as to be manifestly within the legislative intent.” 
In re Certain Inquest Minutes, 137 Vt. 595, 596, 409 A.2d 593, 593
(1979) (per curiam); see also State v. Alexander, 130 Vt. 54, 60, 286
A.2d 262, 265 (1971) (“[S]tatutes will not be regarded as including anything
not clearly and intelligibly described in the words thereof . . . .”).  It
is hard to see how the current practice meets this standard.   I need
not come to a definitive position on this issue because this case involves
access to the inquest records, and not the validity of the inquest.


[12] 
Tallman concerned the now-repealed § 693, see supra, n.10,
but its holding is, by its own terms, just as applicable to the presently
governing § 652(4).
 


[13] 
It is apparently significant to the majority that the Herald never cited
PACR.  I fail to see the significance of this omission.  As the text
says, the applicable rule simply adopted without change the holding of Tallman
and In re Sealed Documents. See Reporter’s Notes to PACR 4 (citing State
v. Tallman); Reporter’s Notes to 2001 Amendment to PACR 6 (indicating that
the 2001 amendment is to implement In re Sealed Documents).
 


[14]  I am using the term testimonial here
to mean the hearing in which testimony about a possible crime is taken, alone
or in connection with other evidence.  As In re Inquest Subpoena (WCAX),
2005 VT 103, demonstrates, another kind of hearing is possible, one in which
the entity subject to the subpoena contests the subpoena.  It is unclear
whether the statutes regulate public access to the record of that kind of
proceeding, and we do not have to reach that point because there was no
subpoena contest in this case.  I find it significant, however, that the
hearing and record in In re Inquest Subpoena (WCAX) were entirely open
to the public. 



