2012 VT 14


Bain v. Clark and Shriver
(2009-468)
 
2012 VT 14
 
[Filed 02-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 14

 

No. 2009-468

 

Stephen Robert Bain


Supreme Court


 


 


 


On Appeal from


     v.


Windham Superior Court


 


 


 


 


Windham County Sheriff Keith
  Clark and Tracy Shriver, Windham County State’s Attorney


September Term, 2010


 


 


 


 


John
  P. Wesley, J.


 

Stephen R. Bain, Pro Se, St. Johnsbury, Plaintiff-Appellant.
 
William H. Sorrell, Attorney General, and Jana M. Brown and
David Cassetty, Assistant 
  Attorneys General, Montpelier, for Defendant-Appellee
Shriver.
 
Barbara R. Blackman and Robin A. Freeman, Jr. of Lynn, Lynn
& Blackman, P.C., Burlington,
  for Defendant-Appellee Clark.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
JOHNSON, J.   In this appeal, we are asked to consider
whether “radio dispatch and unit logs” generated by police are exempt from
disclosure under the Vermont Access to Public Records Act.  Stephen Bain,
pro se, requested such documents from Windham County Sheriff Keith Clark, and
filed suit when the records were not produced.  The trial court dismissed
Bain’s suit against Clark, finding the records exempt from disclosure under 1
V.S.A. § 317(c)(5) as “records dealing with the detection and investigation of
crime.”  Bain did not submit a records request to Windham County State’s
Attorney Tracy Shriver, and the court dismissed Bain’s claim against her for
lack of jurisdiction.  We affirm the court’s decision as to Shriver, and
reverse and remand as to Clark.  
¶ 2.            
Bain was incarcerated as a habitual offender following convictions in
2005 for possession of stolen property and possession of marijuana.  Bain
believes that police unlawfully entered his home following his May 2003 arrest,
and he has pursued this claim in numerous suits.  This issue was raised
and squarely rejected in Bain’s criminal appeal.  See State v. Bain,
2009 VT 34, ¶¶ 14-17, 185 Vt. 541, 975 A.2d 628 (upholding trial court’s
finding that no warrantless search of defendant’s home occurred).  We have
also rejected as unsupported Bain’s assertion, made in connection with
post-verdict motions, that the police possessed and refused to disclose
exculpatory “radio dispatch unit logs.”  See State v. Bain, No.
2009-235, 2010 WL 287030, at *1-2 (Vt. Jan. 15, 2010) (unpub. mem.), available
at: http://www.vermontjudiciary.org/d-upeo/upeo.aspx (finding that Bain failed
to show that police “radio logs,” which he believed were exculpatory, in fact
existed where State had represented during criminal trial that the records did
not exist).  
¶ 3.            
Beginning in 2006, Bain filed a series of lawsuits against Clark and
others in federal court, focusing again on allegations of police
misconduct.  All of these complaints have been dismissed.  In
November 2008, Bain filed the instant complaint against defendants, reiterating
his allegation that police had unlawfully entered his home without a warrant
five and a half years earlier.  Bain maintained that defendants were unlawfully
withholding exculpatory evidence in violation of his rights.  He sought
relief under the rule governing discovery in criminal cases, V.R.Cr.P. 16; he
also sought the production of “any and all computer, telephone or otherwise
generated radio dispatch unit log[s] of [his] arrest and the bona fide
activities of law enforcement for the days of May 22 and 23, 2003” under the
Vermont Access to Public Records Act (PRA).  Bain stated that he had
requested these documents from Clark in December 2007, but received no
response.  He did not allege that he requested the documents from
Shriver.  
¶ 4.            
Both defendants moved to dismiss Bain’s complaint.  Shriver pointed
out that Bain had failed to make a public records request from her office, and
that he thereby failed to exhaust his administrative remedies.  She also
asserted that the documents fell within 1 V.S.A. § 317(c)(5) (2009),[1] which exempts from disclosure: 
records
dealing with the detection and investigation of crime, including those
maintained on any individual or compiled in the course of a criminal or
disciplinary investigation by any police or professional licensing agency;
provided, however, records relating to management and direction of a law enforcement
agency and records reflecting the initial arrest of a person and the charge
shall be public.
 

Clark similarly sought dismissal
under § 317(c)(5), and he also requested injunctive relief to preclude Bain
from continuing to file similar claims against his office.  
¶ 5.            
In November 2009, the court granted defendants’ motions.  With
respect to Shriver, the court agreed that Bain failed to make a proper records
request under 1 V.S.A. § 318, and thus failed to exhaust his administrative
remedies.  See Bloch v. Angney, 149 Vt. 29, 31, 538 A.2d 174, 175
(1987) (party must exhaust administrative remedies under 1 V.S.A. § 318
prior to seeking relief in superior court).  The court rejected Bain’s
assertion that his request to Clark served as a request to Shriver as
well.  It found no support for the proposition that the Sheriff’s Office
and the State’s Attorney’s Office were equivalent for purposes of a public
records request, or that the State’s Attorney could be charged with having to
respond by resort to its own files to a records request made solely to a police
agency within the same county.  
¶ 6.            
The court next considered Clark’s contention that the records were
exempt under § 317(c)(5).  In addressing this issue, the court
acknowledged the “strong policy favoring access to public documents and
records.”  Springfield Terminal Ry. Co. v. Agency of Transp., 174
Vt. 341, 345, 816 A.2d 448, 452 (2002).  It noted as well that PRA
exemptions are construed strictly against the custodian of such records, and
that the custodian must do more than provide “conclusory claims or pleadings”
to establish that the exemption applies.  Finberg v. Murnane, 159
Vt. 431, 438, 623 A.2d 979, 983 (1992); see also 1 V.S.A. § 319(a) (agency
bears burden of justifying its decision to deny access).  
¶ 7.            
The court found the records here were plainly implicated in “the
detection and investigation of a crime,” namely, the crimes for which Bain had
been tried and convicted.  It noted that the request bore no relationship
to statistical reports or budget submissions or policy statements that
conceivably informed the “management and direction” of a sheriff’s
office.  Nor could Bain’s broad charges of criminal collusion by the
investigating officers bring his claim within the “management and direction”
exception on the attenuated theory that the records would “expose” incompetence
in the management of the department.  Similarly, the court rejected the notion
that the radio dispatch and unit logs and other documents pertaining to the day
of Bain’s arrest were records reflecting the initial arrest of an
individual.  
¶ 8.            
The court also rejected Bain’s argument that, even if the records fell
within the exemption for the detection and investigation of crime, Clark must
still produce them because the criminal prosecution had concluded.  Bain
cited 1 V.S.A. § 317(c)(14), which exempts from disclosure “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.”  The court found no suggestion
that the Legislature intended this exemption to modify the separate provision
governing records of detection and investigation of crime.  It emphasized
that Bain could not pursue his obsession with exposing investigatory records he
believed would be exculpatory through the PRA; his rights of discovery were
encompassed by the criminal proceedings and they were not a proper subject of
collateral review.  
¶ 9.            
Finally, the court granted Clark’s motion for injunctive relief under
Vermont Rule of Civil Procedure 65.  It declared Bain a vexatious litigant
and enjoined him from continuing to file suit against Clark for claims arising
out of his 2005 conviction without first securing the court’s approval. 
This appeal followed.
¶ 10.        
On appeal, Bain essentially reiterates the claims he raised below. 
He argues that his records request on Clark served as a request on Shriver
because the two are “in privity.”  He restates his position that the
records he seeks are not exempt from disclosure under § 317(c)(5). 
The American Civil Liberties Union (ACLU) has filed an amicus brief, arguing in
support of disclosure.  It advances various policy arguments to support
Bain’s contention that § 317(c)(5) does not extend to the records at issue
here.  Bain also challenges the court’s order granting injunctive relief
to Clark.[2] 

¶ 11.        
Turning first to Bain’s complaint against Shriver, we agree that
dismissal was warranted because Bain failed to exhaust his administrative
remedies.  See Nichols v. Hofmann, 2010 VT 36, ¶ 4, 188 Vt. 1, 998
A.2d 1040 (Supreme Court reviews rulings on motions to dismiss de novo). 
As the trial court explained, the administrative procedure for requesting
public records is set forth in 1 V.S.A. § 318.  By statute,
individuals must submit such requests to the custodian of a public record under
§ 318(a) before they will be deemed to have exhausted their administrative
remedies.  Id. § 318(b).  Only those who have been
aggrieved by the denial of a request for public records can apply to the
superior court for relief.  Id. § 319(a).  When a party fails
to comply with this procedure, the superior court lacks subject matter
jurisdiction over a public records act complaint and such complaint must be
dismissed.  Bloch, 149 Vt. at 31, 538 A.2d at 175.  
¶ 12.        
Bain offers no compelling argument to the contrary.  His assertion
that these two defendants are “in privity” for purposes of a PRA request is
wholly without merit.  Nothing in the PRA supports this argument, and the
cases cited by Bain are inapposite.  See, e.g., First Wisconsin Mortg.
Trust v. Wyman’s, Inc., 139 Vt. 350, 358-59, 428 A.2d 1119, 1123 (1981)
(for purposes of applying doctrine of res judicata, the “test for privity . . .
is whether the parties have really and substantially the same interest in the
property in issue”).  Because Bain failed to request any public records
from Shriver, his PRA claim against her was properly dismissed.  
¶ 13.        
We thus turn to the heart of this case and consider whether the court
erred in dismissing Bain’s complaint against Clark.  As noted above, Bain
sought the production of “any and all computer, telephone or otherwise
generated radio dispatch unit log[s] of [his] arrest and the bona fide
activities of law enforcement for the days of May 22 and 23, 2003,” and his
complaint was dismissed for failure to state a claim on which relief could be
granted.  In reviewing such rulings, we employ the same standard as the
trial court: “A motion for failure to state a claim may not be granted unless
it is beyond doubt that there exist no facts or circumstances that would
entitle the plaintiff to relief.”  Kaplan v. Morgan Stanley & Co.,
2009 VT 78, ¶ 7, 186 Vt. 605, 987 A.2d 258 (mem.) (quotations omitted).
 “We assume that all factual allegations pleaded in the complaint are
true, accept as true all reasonable inferences that may be derived from
plaintiff’s pleadings, and assume that all contravening assertions in
defendant’s pleadings are false.”  Mahoney v. Tara, LLC, 2011 VT 3,
¶ 7, __ Vt. __, 15 A.3d 122 (mem.) (quotation, brackets, and ellipses
omitted).  
¶ 14.        
Applying this standard, we must reverse and remand.  As a threshold
matter, it is not clear that the records Bain seeks actually exist.  The
record shows that in 2004, in connection with his criminal proceedings, Bain’s
then-defense attorney requested from the Windsor County State’s Attorney: 
all
state police and sheriff radio log, dispatcher log, computer log, and any other
computer generated or automobile related logs for May 22, 2003 and May 23,
2003. . . .  In particular, I seek a log of all officers and sheriffs that
will show, for each day, the location and calls relating to each officer, their
involvement and/or noninvolvement with my client’s house, his arrest on May
22nd, and any search incident to or related thereto.  I have not been
provided with the computer dispatcher’s log or the radio log for each officer
for both days.  It is my understanding that such exists, and that it can
be copied.  
 
This request was apparently
forwarded to the Windham County Sheriff’s Office, and an administrative
secretary for the Sheriff’s Office responded as follows:  “Be advised that
our computer system that we were using on that day does not generate a radio
log or dispatch log.  The dispatchers will make some notes on the call
itself, but no actual log is made.  Also the dispatcher is most often
alone and so the times are frequently
incorrect . . . .”  It is not clear if any dispatcher
notes were provided to Bain’s attorney.
¶ 15.        
Bain now avers, as he did in a prior case before this Court, that
Clark’s attorney has admitted in court that the police logs he seeks do
exist.  He provides no transcript or other record support for this
assertion.  At the same time, however, Clark’s attorney does not disavow
this statement, and defendants take no position in their briefs on the
existence of these records.  We are thus left to wonder, do these records
exist?  If not, why haven’t defendants relied on this position to defeat
Bain’s claim?  If they do exist, why did the Sheriff’s Office say
otherwise in 2004?  These types of questions go to the heart of the PRA
and they raise issues that free disclosure of public documents can put to
rest.  See, e.g., Caledonian Record Publ’g Co. v. Walton, 154 Vt.
15, 21, 573 A.2d 296, 299 (1990) (explaining that this nation’s founding
fathers “thought secrecy in government one of the instruments of Old World
tyranny and committed itself to the principle that a democracy cannot function
unless the people are permitted to know what their government is up to”
(citation omitted)).  
¶ 16.        
Assuming these radio dispatch and unit logs do exist, we cannot discern
from the record precisely what information they might contain.  We thus
cannot determine if they are records “dealing with the detection and
investigation of crime” and therefore exempt from disclosure under 1 V.S.A. §
317(c)(5).  Section 317(c)(5) exempts those records: 
dealing
with the detection and investigation of crime, including those maintained on
any individual or compiled in the course of a criminal or disciplinary
investigation by any police or professional licensing agency; provided,
however, records relating to management and direction of a law enforcement
agency and records reflecting the initial arrest of a person and the charge
shall be public.  
 
We cannot assume, consistent with
the purpose of the PRA, that simply because the records at issue were generated
by a law enforcement agency, they necessarily are records “dealing with the
detection and investigation of crime.”  To so hold would allow for a
“potentially limitless” exemption.  Kade v. Smith, 2006 VT 44, ¶ 8,
180 Vt. 554, 904 A.2d 1080 (mem.).  
¶ 17.        
As the Legislature has made clear, the PRA must be “liberally construed
with the view towards carrying out” its legislative purpose of allowing “free
and open examination of records consistent with Chapter I, Article 6 of the
Vermont Constitution.”  1 V.S.A. § 315; see also Vt. Const., ch. I, art. 6
(recognizing that government officials are legally accountable to the
people).  “Officers of government are trustees and servants of the people
and it is in the public interest to enable any person to review and criticize their
decisions even though such examination may cause inconvenience or
embarrassment.”  Id. The common law similarly “protects the right
in all citizens to inspect the public records and documents made and preserved
by their government when not detrimental to the public interest.”  Walton,
154 Vt. at 20, 573 A.2d at 299 (quotation omitted).  Indeed, “[w]e do not
overstate the case in saying that open access to governmental records is a
fundamental precept of our society.”  Shlansky v. City of Burlington,
2010 VT 90, ¶ 12, 188 Vt. 470, 13 A.3d 1075.  Consistent with these
policies, we strictly construe exemptions to the PRA “against the custodian of
such records and resolve any doubts in favor of disclosure.”  Walton,
154 Vt. at 20, 573 A.2d at 299. 
¶ 18.        
We have also noted that 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.
at 21, 573 A.2d at 300.  There is a strong public interest in disclosure
of public records, and this interest “is particularly acute in the area of law
enforcement.”  Id. at 21, 573 A.2d at 299.  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.  
¶ 19.        
We construed § 317(c)(5) in Walton, 154 Vt. at 23, 573 A.2d at
300-01, and found Houston Chronicle Publishing Co. v. City of Houston,
531 S.W.2d 177 (Tex. Civ. App. 1975) persuasive in doing so.  At the time Houston
was decided, Texas law exempted from disclosure those “records of law
enforcement agencies that deal with the detection and investigation of crime
and the internal records and notations of such law enforcement agencies which
are maintained for internal use in matters relating to law enforcement.”  Houston
Chron. Publ’g Co., 531 S.W.2d at 184 (quotation omitted).[3]  The court determined that this
language did not encompass police blotters, which included personal information
about the person arrested and the circumstances of the arrest; “show-up
sheets,” which were maintained for each twenty-four hour period and showed in
chronological order the name of each person arrested and related information;
and “arrest sheets,” which were similar to show-up sheets.  Id. at
180, 185.  
¶ 20.        
The court reached a different conclusion with respect to much of the
information included in “offense reports.”  Id.  These reports
included not only the offense committed, and details concerning the complaining
witnesses, other witnesses, and related information, but they could also
include a synopsis of a purported confession, officers’ speculations about a
suspect’s guilt, investigating officers’ views on a witness’s credibility,
statements by informants, ballistics reports, fingerprint comparisons, and
blood and other laboratory tests, including the results of polygraph tests and
other investigative reports.  Id. at 179.  As to this
information, the court found that the release of such information might
“endanger the position of the State in criminal prosecutions,” “reveal the names
of informants,” and “pose the threat of intimidation of potential prosecution
witnesses.”  Id. at 187.  
¶ 21.        
We cited these same policy concerns in Walton, where we concluded
that neither arrest records nor criminal citations were “records dealing with
the detection and investigation of crime” under 1 V.S.A. § 317(b)(5). 
Drawing on case law from other jurisdictions, we recited that: 
[i]nformation
concerning the operations of the police department in making arrests and the
charges upon which arrests are made is vital to the democratic system; and
presumptively, by statute, the records are to be open.  While in some
cases involving police functions there is an overriding public interest in
preserving secrecy (e.g., in the investigation of pending or proposed criminal
charges), no overriding public-interest concern is discernable when the
executive act of arrest has been completed.  
 
Walton, 154 Vt. at 24, 573
A.2d at 301 (quotation omitted).  We agreed that “the disclosure of arrest
records does not involve such a detriment to the public interest so as to
overweigh the strong public policy behind public access to government
records.”  Id.  
¶ 22.        
Because the evidence in this case has not yet been fully developed, we
cannot discern if police radio and dispatch unit logs are the type of records
that the Legislature intended to shield from view under § 317(c)(5).  On
remand, the court’s evaluation of whether these logs are “records dealing with
the detection and investigation of crime” should be guided by the purposes
underlying the statutory exemption and the factors discussed in Walton. 
This includes whether the records at issue contain the type of information that
might “endanger the state’s position in criminal prosecutions” or “reveal the
names of informants,” or other information that might “threaten to intimidate
potential witnesses,” such as “ ‘speculations of a suspect’s guilt,
officers’ views as to the credibility of witnesses, statements by informants,
. . . or blood and other laboratory tests.’ ”  Walton,
154 Vt. at 23, 573 A.2d at 300-01 (quoting Houston Chron. Publ’g Co.,
531 S.W.2d at 187)).  The parties may also identify other compelling
policy interests.  Because we find reversal appropriate on
§ 317(b)(5) grounds, we do not reach the second PRA exemption on which
Bain relies.[4]
  
¶ 23.        
Finally, we vacate the court’s decision to grant injunctive relief to
Clark.  As we have recently explained, in deciding whether a pre-filing
injunction is warranted, “[t]he ultimate question is whether a litigant who has
a history of vexatious litigation is likely to continue to abuse the judicial
process and harass other parties.”  Zorn v. Smith, 2011 VT 10,
¶ 18, 189 Vt. 219, 19 A.3d 112 (quotation omitted).  While Bain has
touched on similar issues in other cases, this is the first state case to
directly address the merits of his claim that he is entitled to the information
he seeks under the PRA.  A pre-filing injunction is thus not warranted at
this juncture.  
We affirm the
court’s dismissal of Bain’s complaint against Tracy Shriver, and we reverse and
remand its dismissal of Bain’s complaint against Clark.  We vacate the
court’s pre-filing injunction against Bain.  
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
A minor grammatical change was made to the quoted portion of this provision in
2011.  We use the statute in effect at the time of the trial court’s
decision.  


[2] 
We do not address Bain’s argument that the trial judge should have recused
himself because this issue was not raised below.  Pion v. Bean,
2003 VT 79, ¶ 45, 176 Vt. 1, 833 A.2d 1248 (“Contentions not raised or fairly
presented to the trial court are not preserved for appeal.” (quotations
omitted)).  We reject as unfounded Bain’s assertion that the trial court
failed to timely consider his case.  
 


[3] 
This provision has since been modified and now provides express standards to
evaluate the type of information related to the “detection, investigation, or
prosecution of crime” that is exempt from disclosure.  See Tex. Gov’t Code
Ann. § 552.108.  Information is exempt, for example, if its disclosure
“would interfere with the detection, investigation, or prosecution of crime.” Id.
§ 552.108(a)(1).  This exemption does not extend to “basic
information about an arrested person, an arrest, or a crime,” which must be
disclosed.  Id. § 552.108(c).  


[4] 
In reaching our conclusion, we reject defendants’ argument that amicus curiae
American Civil Liberties Union Foundation of Vermont has improperly attempted
to expand the scope of this appeal.  The issue before us is the proper
interpretation of 1 V.S.A. § 317(c)(5), a question we review de novo.  Wright
v. Bradley, 2006 VT 100, ¶ 6, 180 Vt. 383, 910 A.2d 893.  In
conducting our analysis, we consider not only the statutory language, but also
the legislative policies that the statute was designed to implement.  See,
e.g., Dep’t of Corr. v. Human Rights Comm’n, 2006 VT 134, ¶ 7, 181 Vt.
225, 917 A.2d 451.  In its brief, the ACLU advances various policy
arguments that support Bain’s contention that § 317(c)(5) does not extend to
the records at issue here.  We would have considered the policies underlying
§ 317(c)(5) regardless of the ACLU’s brief.  In any event, an amicus
curiae “may assist the court in its consideration of issues properly presented
by the actual parties,” State v. Bell, 136 Vt. 144, 147, 385 A.2d 1094,
1096 (1978), and the various policy arguments proffered by amicus serve this
end here.  



