2012 VT 61

Galloway v. Town of
Hartford
(2011-211)
 
2012 VT 61
 
[Filed 03-Aug-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 by email at: JUD.Reporter@state.vt.us
or by
mail at: 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 61

 

No.
      2011-211

 

Anne Galloway


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Windsor
Unit,


 


Civil Division


 


 


Town of Hartford


December Term, 2011


 


 


 


 


Katherine A. Hayes, J.


 

Dan Barrett, ACLU Foundation of Vermont,
Montpelier, for
Plaintiff-Appellant.
 
Joseph A. Farnham of McNeil, Leddy & Sheahan,
Burlington, for Defendant-Appellee.
 
 
PRESENT:  Dooley, Skoglund and Burgess, JJ.,
and Eaton
and Zonay, Supr. JJ.,
           
         Specially Assigned
 
 
¶ 1.            
SKOGLUND, J.   Hartford police officers
responded to a
report of a possible burglary in progress, and used considerable force
in
restraining the suspect.  The alleged burglar turned out to be the
homeowner, who was disoriented due to a medical condition. 
Journalist
Anne Galloway requested records relating to the police contact with the
homeowner from the chief of police.  The chief denied Galloway’s
request,
as did the town manager when Galloway appealed the chief’s
decision. 
After Galloway filed an action to compel production of the records, the
superior court ruled that under the Public Records Act’s (PRA)
exemption for
police investigations, 1 V.S.A. § 317(c)(5), the police did not need to
provide
Galloway with any records produced or acquired before the point at
which the
officers decided against charging the homeowner with a criminal
offense. 
Galloway now appeals.  We hold that because the homeowner’s
detention
amounted to an arrest, the records in question must be disclosed under
the
PRA’s proviso that “records reflecting the initial arrest of a person
. . . shall be public.”  Id. 
  Accordingly, we reverse.
¶ 2.            
The underlying facts of this case are drawn principally from the
superior court’s findings of fact and the documents the judge ordered
released.  Additional facts are drawn from the withheld documents
currently in dispute.  While it would normally be inappropriate to
draw
facts from sealed or withheld documents, because we ultimately order
their
release to the media, they will no longer be confidential. 
Moreover, much
of the information contained in the withheld documents was also
obtained by news
reporters who interviewed the homeowner, and these widely distributed
news
reports were part of the record at the trial court.  We recite the
facts
as follows. 
¶ 3.            
On May 29, 2010, the Hartford Police
Department received a report of suspected criminal activity at a
residence.  Three police officers responded and met with the woman
who
reported the activity, a housekeeper who had arrived to clean. 
The
housekeeper told the officers that she smelled smoke and found the
bedroom looked
“ransacked.”  She discovered an unknown male upstairs in the
bathroom.  She found a lamp overturned that had been burning a
nearby
alarm clock.  Three officers entered the home with guns
drawn.  They
proceeded upstairs and found a large male sitting naked on a
toilet.  When
one officer ordered the man to show his hands, the male was
unresponsive.
 After repeated orders to the suspect drew no response, the
officer
sprayed the man in the face with pepper spray.  The man began to
move
about the bathroom and the officers ordered him on the ground. 
The man
failed to comply and remained unresponsive.  The police attempted
to
handcuff the man, but he reportedly resisted.  One officer then
hit him
several times on the arms and legs with a baton.  The man was
eventually
handcuffed and dragged out of the house. 
¶ 4.            
After about fifteen minutes, police determined that the man was,
in
fact, the homeowner, who suffered from a medical condition that caused
him to
occasionally lapse into an unresponsive state.  His handcuffs were
removed, and he was transported to hospital by ambulance where he
received two
stitches in his wrist—a cut from the tight handcuffs.  The
homeowner was
not charged with any offense.
¶ 5.            
Pursuant to Vermont’s Public Records Act, 1 V.S.A. §§ 315-320,
Galloway,
working for the investigative news website VtDigger.org, sought release
of the
Town of Hartford’s records related to the incident, including audio
recordings
of the incident, the witness’s 911 call, officers’ reports, the
dispatcher’s
log, and written witness statements.  She made a written request
for
records to the chief of police.  The chief denied the request on
the
ground that the records in question related to a criminal investigation
and
were therefore exempt from disclosure under 1 V.S.A. § 317(c)(5)
(exemption
five), 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, that records relating to management and direction of a law
enforcement
agency; records reflecting the initial arrest of a person, including
any
ticket, citation, or complaint issued for a traffic violation, as that
term is
defined in 23 V.S.A. § 2302; and records reflecting the charge of a
person
shall be public.[1]
¶ 6.            
The town manager affirmed the chief of police’s decision. 
Galloway
then filed suit, seeking production of the records and an award of
costs and
fees incurred in bringing the action.  The trial court denied the
Town’s
motion for summary judgment and held a hearing on the merits to
determine
whether the records fell within the exemption found in § 317(c)(5).
¶ 7.            
The trial court concluded that the records created by police
were exempt
from disclosure because they were created during the course of
an
investigation into suspected criminal activity.  However, because
the
investigation concluded without any resulting criminal charges, the
court held
that any records created after the decision that there would be
no
criminal charges had to be disclosed.  It reasoned that the
records
revealing the outcome of an investigation are not records “of the
investigation,” but are its product.  The court thus directed the
Town to
disclose documents in its possession created or obtained after the
decision had
been made that there would be no criminal charges lodged against the
homeowner,
but exempted from disclosure records made during the investigation.
¶ 8.            
The Town submitted a Vaughn index[2]
of all records related to the event.  The court held a
second
hearing in camera to determine what records should have been disclosed
under
the court’s order.  The court issued a decision on disclosure and
listed
the documents that the Town was required to disclose, which included
fire
department documents, two witness statements, and the chief of police’s
narrative report.  The court concluded that the rest of the
documents,
including officers’ narrative reports and audio and video recordings of
the
events, were part of the investigation and therefore exempt.  It
held that
“[t]he investigation was only entirely complete after the narratives
were
submitted and a final decision had been made by the [Police] Department
regarding whether to request the State’s Attorney to bring any criminal
charge.”  Galloway objected to this decision on the grounds that
it
contravenes the purposes of the Public Records Act, and that the
criminal
investigation ended when the handcuffs were removed from the
suspect.  The
court rejected these arguments and declined to modify its
decision.  This appeal
followed.
¶ 9.            
Our review begins with the statement of legislative intent in
the PRA:
“[T]he provisions of this subchapter shall be liberally
construed . . . and the burden of proof shall be on the
public
agency to sustain its action.”  1 V.S.A. § 315.  We have long
held
that “the public interest clearly favors the right of access to public
documents and public records.”  Caledonian Record Publ’g Co.
v. Walton,
154 Vt. 15, 20, 573 A.2d 296, 299 (1990); see also Bain v. Windham
Cnty.
Sheriff, 2012 VT 14, ¶ 17, ­­__ Vt.­__, ­­44 A.3d 170 (“[W]e do not
overstate the case in saying that open access to governmental records
is a
fundamental precept of our society.” (quotation omitted)).  We
therefore
construe exceptions to the PRA strictly against the custodians of
records, and
resolve any doubts in favor of disclosure.  Bain, 2012 VT
14, ¶ 17.
¶ 10.        
Galloway argues that the records sought here must be made public
as they
reflect the initial arrest of the homeowner, 1 V.S.A. § 317(c)(5), and
that we
should look to Vermont and federal criminal procedure law to determine
whether
there was a de facto arrest.  She contends that the homeowner was
involuntarily detained for a period of time long enough to constitute a
de
facto arrest, and as such, the records reflecting the initial arrest
must be
released. 
¶ 11.        
We agree that the homeowner was arrested and that the records
reflecting
the initial arrest must be made public.  Accordingly, we do not
reach the
merits of Galloway’s argument that exemption five must be read to
require
disclosure unless the Town can demonstrate that disclosure poses a
concrete
harm to law enforcement interests.  We do note, however, that many
other
states are guided by statutory criteria that provide police and courts
with a
far better and more defined framework in making decisions about
disclosure of
this type of record.  The majority of our New England neighbors
have
adopted an open records rule of reason permitting public access to
investigative records absent identifiable harm in disclosure.[3]  We leave that issue to the
Legislature.
¶ 12.        
The determination of whether police have effected an arrest is a
fact-dependent analysis.  Even a de facto arrest would require the
Town to
release records of the incident.  In State v. Chapman, we
recognized that an investigative detention “may become too intrusive to
be
classified” as such, and “may instead become the functional equivalent
of a
formal arrest.” 
173 Vt. 400,
403, 800 A.2d 446, 449 (2002) (quotation omitted).  See State
v.
Carmody, 140 Vt. 631, 636, 442 A.2d 1292, 1294 (1982) (police’s
reduction
of defendant to custody is “serious liberty restriction,” and when such
custody
is exerted without formal arrest, it is treated as unauthorized, or de
facto
arrest).  In this case, the official “Non-Lethal Use of Force
Reporting
Forms” completed by the Hartford police indicate the reasons for the
use of
force included “resisting arrest.” 
¶ 13.        
We look at the totality of the circumstances to determine if an
investigative detention has crossed the line and become a de facto
arrest;
there is no bright-line rule to distinguish the two situations.  Chapman,
173 Vt. at 403, 800 A.2d at 449.  We consider a number of factors
in
determining whether a detention amounted to an arrest:
[T]he amount of force
used by police,
the need for such force, and the extent to which the individual’s
freedom of
movement was restrained, . . . and in particular such
factors as
the number of agents involved, . . . whether the target
of the
stop was suspected of being armed, . . . the duration of
the
stop, . . . and the physical treatment of the
suspect . . . including whether or not handcuffs were
used.
Id. (quoting
United
States v. Perea, 986 F.2d 633, 645 (2d Cir. 1993)).
¶ 14.        
We hold that the facts of this case support a finding of an
arrest.  Applying the factors listed in Chapman, the
police used a
considerable amount of force: the homeowner was pepper-sprayed and
struck
repeatedly with a baton.  His freedom of movement was entirely
restrained
for fifteen minutes.  Three officers handcuffed the homeowner and
he was
dragged down the stairs and out of his house and forced to sit
handcuffed on the
sidewalk.  Only after fifteen minutes did the police decide there
was no
basis for criminal charges against the homeowner and remove the
handcuffs.  
¶ 15.        
Under the plain language of the PRA, “records reflecting the
initial
arrest of a person . . . shall be public.”  Our
holding
here is consistent with the balancing that courts must do to weigh
competing
interests in determining whether a record is public.  The privacy
interest
of the person arrested, the public interest in encouraging transparent
government as a foundation of a free democracy, and a separate public
interest
in ensuring that police can keep us safe are all factors courts must
evaluate.  This Court adopted the reasoning of the Wisconsin
Supreme
Court, holding 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 discernible when the
executive act of arrest has been completed.  An arrest is the
exercise of
the government’s power to deprive an individual of freedom.
 
Walton,
154 Vt. at 24, 573 A.2d at 301
(quoting Newspapers, Inc. v. Breier, 279 N.W.2d 179, 189 (Wis.
1979)).
 We see no reason why the records reflecting the initial arrest
should not
be disclosed.
           
The superior court judgment is reversed.  Under the facts of
this case,
all records considered by the trial court that were identified by the
police as
being generated as a result of the incident should be considered
records
reflecting the homeowner’s initial arrest and are to be disclosed.

 
 


 


FOR THE
COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
 
 
 
¶ 16.        
DOOLEY, J., concurring.   I concur in the
opinion for
the Court that the records in issue are not exempt under 1 V.S.A. §
317(a)(5),
the exemption for “records dealing with the detection and investigation
of
crime,”  because they are records “reflecting the initial arrest
of a
person.”  I write separately, however, because I believe that
there is a
more direct and simple rationale for reaching the same result, and it
is more
in keeping with the intent behind the Public Records Act (PRA). 
In this
case, there was no crime.  For this reason, I conclude that the
records
concerning the incident do not fall within the basic exemption. 
¶ 17.        
We have issued a number of decisions interpreting the PRA. 
Whatever the result, these decisions have rarely created bright lines
that make
it easy for governmental officials to determine what records are
publicly
accessible and what records are not.  For example, the decision in
this
case calls upon the record-holder to apply an eight-factor test to
determine
whether detention amounted to an arrest.  See ante, ¶
13.  A
decision of this complexity will likely have to be made by an agency
lawyer,
not the record-holder, and is likely to lead to more court
appeals. 
Because the right answer is highly debatable, the natural inclination
for the
agency will be to deny the request for access and leave it to the court
to make
the decision.  Rather than the prompt production or expeditious
review the
statute contemplates, see 1 V.S.A. § 318(a), the final decision may
take
months, or even years, to finally appear.  In too many instances
the
overarching policy “to provide for free and open examination of
records,” id.
§ 315, would be wholly undermined.  What is sorely needed in this
area are
simple and predictable rules that can be applied by the custodians of
records
and, where necessary, trial courts.  
¶ 18.        
This case presents an opportunity to provide a clear rule for
future
applications of exemption five.  The public records request in
this case
arises entirely ex post.  This is not a case involving a request
for
records that are part of an ongoing criminal investigation, or a
completed
investigation where criminal proceedings may be ongoing, or even a
completed
investigation where no charges are pending that might someday be
lighted anew
by additional evidence.  As a subject of investigation, the
incident is
completely behind us.  From this retrospective stance, we can,
with the
benefit of hindsight, affirmatively state that there was no
crime.  
¶ 19.        
In cases like this, when we know that there never was any crime
to be
investigated or detected, the plain language of exemption five does not
provide
clear guidance.  There are essentially two ways that one can read
§ 317(c)(5)’s reference to “records dealing with the detection and
investigation of crime.”  On the one hand, it can be read to
include
essentially all records of police investigation.  As long as there
was an
investigation, the exemption would apply.  On the other hand, it
can be
read to include only investigatory records of crimes.  Where there
was no
crime, the exemption does not apply.  The former interpretation
would make
the records in this case exempt; the latter would not.[4]
¶ 20.        
As between these two ways to read the statutory language, I
believe that
the rule yielding no exemption is the legally correct choice. 
Where
statutory language is open to multiple readings, we rely on context and
consequences to select the appropriate interpretation.  See Shea
v.
Metcalf, 167 Vt. 494, 498, 712 A.2d 887, 889 (1998).  In the
context
of the PRA and in light of the felicitous consequences, I would not
interpret
§ 317(c)(5) to cover the situation where there was no crime as in
this
case.  Four general reasons support this choice.  
¶ 21.        
First, exemptions from public access are to be read
narrowly.  See
1 V.S.A. § 315 (stating the that PRA “shall be liberally
construed” in
order to implement a policy of free and open government); see also Trombley
v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 106-07,
624
A.2d 857, 861 (1993).  We have consistently understood this
directive to
mean that, where there is doubt or ambiguity, records should be
accessible to
the public as part of our democratic right.  See, e.g., Wesco,
Inc. v.
Sorrell, 2004 VT 102, ¶ 10, 177 Vt. 287, 865 A.2d 350 (“We
construe
[Public Record Act] exceptions strictly against the custodians of
records and
resolve any doubts in favor of disclosure.”); Caledonian Record
Publ’g Co.
v. Walton, 154 Vt. 15, 20, 573 A.2d 296, 299 (1990) (“[T]he public
interest
clearly favors the right of access to public documents and public
records.”).  Given that the language of exemption five is
ambiguous, we
should follow the Legislature’s explicit directive and interpret the
exemption
narrowly and in favor of disclosure.  
¶ 22.        
Second, the policy rationales for the exemption at issue are
essentially
absent where hindsight undeniably shows that there was no crime. 
The
exemption for investigatory records serves the critical purpose of
ensuring
that police can carry on their investigations without
interference.  See Walton,
154 Vt. at 21, 573 A.2d at 300 (“[T]he state has significant interests
in
protecting the public from criminal activity, prosecuting those who
commit
crimes, and protecting the privacy rights of individual citizens.
 These
interests may, at times, override the interest in public
disclosure.”). 
The State’s interests in nondisclosure are at their apex where there is
an open
criminal investigation or ongoing criminal proceedings that might be
impaired. 
See id. at 23, 573 A.2d at 300-01 (“[D]isclosure of this type
of
information may endanger the state’s position in criminal prosecutions
since
the material may be used to the disadvantage of the prosecution and
. . . may reveal the names of informants and threaten to
intimidate
potential witnesses.”).
¶ 23.        
The State’s interests in nondisclosure are substantially weaker
when an
investigation or prosecution is no longer pending, but they are not
absent.  See Rutland Herald v. Vt. State Police, 2012 VT
24,
¶ 12, ___ Vt. ___, ___ A.3d ___ (finding no support for “a
time-based
limitation . . . in the plain language of §
317(c)(5)”).  The
residual reasons against disclosure even after an investigation’s
conclusion—articulated by a number of federal appeals courts in the
early
1970s—include concerns about chilling citizen cooperation in future
cases or
revealing investigatory tactics.  See Aspin v. Dep’t of Def.,
491
F.2d 24, 30 (D.C. Cir. 1973) (“It is clear that if investigatory files
were
made public subsequent to the termination of enforcement proceedings,
the
ability of any investigatory body to conduct future investigations
would be
seriously impaired.  Few persons would respond candidly to
investigators
if they feared that their remarks would become public record after the
proceedings.  Further, the investigative techniques of the
investigating
body would be disclosed to the general public.”); Frankel v. SEC,
460
F.2d 813, 817-18 (2d Cir. 1972) (“If an agency’s investigatory files
were
obtainable without limitation after the investigation was concluded,
future law
enforcement efforts by the agency could be seriously hindered. 
The
agency’s investigatory techniques and procedures would be
revealed.  The
names of people who volunteered the information that had prompted the
investigation initially or who contributed information during the
course of the
investigation would be disclosed.  The possibility of such
disclosure would tend severely to
limit
the agencies’ possibilities for investigation and enforcement of the
law since
these agencies rely, to a large extent, on voluntary cooperation and on
information from informants.”).  
¶ 24.        
Even these residual interests, however, are vanishingly small
where, as
here, there incontrovertibly was never any crime.  Where no
criminal
activity has occurred, there can be little fear of a chilling effect on
citizens reporting crime or on informants giving tips about
crime. 
Indeed, one would hope that citizens would not report crime where there
is
none.[5] 
The concern that disclosure might reveal police techniques is also
minimal.  Because there was no crime, the police records
necessarily
cannot provide an example of how the police successfully detect
crime. 
Furthermore, sophisticated surveillance or interrogation tactics are
unlikely
to be involved where there actually was no criminal activity
whatsoever. 
What may be revealed—general facts about how police respond to 911
calls—are
such a far cry from the case-specific details of an ongoing
investigation,
concern for which undergirds § 317(c)(5), that I doubt that the
Legislature intended the exemption be read so broadly.  
¶ 25.        
Third, the absence of any crime is objective, and its
consideration
therefore avoids inquiring into the subjective intent of the record’s
creator.  It is tempting to assume that these are records of the
investigation of crime based on the fact that the police thought that
they were
investigating a crime when the incident occurred.  But, it is
unlikely that
the Legislature would intend that the character of a record would turn
on the
subjective intent of the record’s creator at the time the record was
created.  Cf. John Doe Agency v. John Doe Corp., 493 U.S.
146, 155
(1989) (rejecting an interpretation of the federal exemption for
“records or
information compiled for law enforcement purposes” that would depend on
the
original purpose for which the record is compiled, focusing instead on
the
status of the documents “when the response to the [public records]
request must
be made”).  In many instances, the records custodian will have no
ability
to determine the intent of the record-creator.  For example, we
could not
expect a record custodian to determine whether particular parts of the
“investigation” described in a record were pretextual and not done for
the
investigatory purpose asserted.  The subjective approach would
also mean
that the result in this case turns entirely on the fact that the 911
caller
misidentified the situation.  Had the caller requested the police
in their
community caretaking capacity and sought a welfare check on the
homeowner, then
the records of the incident would not fall within exemption five.[6]  For these reasons, the
subjective-intent approach is, I believe, unworkable.  Where we
can
affirmatively state that there was no crime, we should rely on this
objective
fact rather than on the subjective perception of the incident at the
time.
¶ 26.        
This brings me back to my introductory comments, which I restate
here as
the fourth reason in favor of this interpretation of the
exemption.  An
interpretation that turns on whether there was actually a crime is
simple and
easy to apply—no crime, no exemption.  This rule resolves this
case cleanly,
and it provides an uncomplicated way to handle analogous cases in the
future.  It can be used by records custodians who are not trained
in the
law.  Cf. State v. Wood, 148 Vt. 479, 490, 536 A.2d 902,
908 (1987)
(discussing the value of adopting a rule that “simplifies the analysis
that
must be made by courts and those who follow our decision”).  In
saying
this, I recognize the rule has limited applicability to circumstances,
as
present here, where the absence of a crime can be clearly
determined.  But
the introduction of clear, objective rules, even for the small part of
the
overall public records involved, is a step forward and perhaps a model
as we
decide other PRA issues.  
¶ 27.        
In this case, nothing criminal occurred, and I therefore would
hold that
the police records of the incident are not records dealing with the
detection
and investigation of crime.  This result is simple, workable, and
true to
the objectives of the Public Records Act.  
¶ 28.        
I am authorized to state that Judge Zonay joins this concurrence.

 


 


 


 


 


 


 


 


Associate
Justice

 
 
¶ 29.        
BURGESS, J., dissenting.   I respectfully
dissent from
construing “arrest” as virtually the opposite of what the statute
plainly
says.  The Legislature expressly provided at the time this
incident arose
that records of criminal investigations were not accessible to the
public under
the Public Records Acts (PRA), except for “records reflecting the
initial
arrest of a person and the charge.”  1 V.S.A.
§ 317(c)(5)
(2010) (emphasis added).  It could hardly be clearer that the
Legislature
intended to withhold information on criminal investigations and
investigative
detentions not resulting in charges, while mandating disclosure of
arrests
accompanied by a formal criminal charge.
¶ 30.        
Instead of this straightforward legislative standard, the
plurality
chooses to impose a variable, or floating, test for public access of
police
records.  Now disclosure depends on whether the temporary
detention of a
suspect amounts to an arrest for purposes of Fourth Amendment
protection, even
when, as here, no such claim of unconstitutional invasion is at
issue. 
Custodians of police records must now puzzle over “de facto” arrest
versus
investigative detention not amounting to arrest—a moving target worthy
of
countless and diverse court decisions.  See D. Dinger, Is
There a Seat
for Miranda at Terry’s Table?: An Analysis of the Federal Circuit Court
Split
Over the Need for Miranda Warnings During Coercive Terry Detentions,
36 Wm.
Mitchell L. Rev. 1467, 1485-87 (2010) (noting that one of
most-litigated issues
is point at which temporary investigative detentions become de facto
arrests). 
No police department can reasonably be expected to respond
correctly to PRA
requests when the answer is so situational and confounding to courts.
¶ 31.        
By importing Fourth Amendment jurisprudence into this case
rather than
relying on the plain language of § 317(c)(5) (“arrest of a person and
the
charge”), the plurality guarantees litigation over whether, under the
circumstances at the time, police intervention amounted to a “de facto”
arrest
rather than a temporary detention incident to investigation.  See State
v. Chapman, 173 Vt. 400, 403-04, 800 A.2d 446, 449 (2002) (setting
forth totality-of-circumstances
test and accompanying factors).  As the plurality acknowledges, ante,
¶ 13, there is barely a dim distinction between investigative
detentions
and de facto arrests.  Chapman, 173 Vt. at 403, 800 A.2d
at 449
(“There is no bright line differentiating an arrest from a detention
supportable by less than probable cause.”); see also Allen v. City
of Los
Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995) (stating that there is
“no
bright line rule for determining when an investigatory stop crosses the
line
and becomes an arrest”); United States v. Tilmon, 19 F.3d 1221,
1224
(7th Cir. 1994) (noting that “[s]ubtle, and perhaps tenuous,
distinctions exist
between a Terry stop, a Terry stop rapidly evolving
into an
arrest and a de facto arrest”).
¶ 32.        
 Thus, not only will municipalities be puzzled, but courts
will
vary in their results when called upon to review decisions to withhold
records
of detentions deemed by custodians to be less than de facto
arrests. 
Whether a detention amounts to an arrest will be decided case by case,
depending on the circumstances.  Chapman, 173 Vt. at 403,
800 A.2d
at 449.  De facto arrest records now classified by the plurality
as public
information are not always easily recognizable.  See id.;
see also United
States v. Sharpe, 470 U.S. 675, 685 (1985) (recognizing that its
Fourth
Amendment precedents “may in some instances create difficult
line-drawing
problems in distinguishing an investigative stop from a de facto
arrest”); Morelli
v. Webster, 552 F.3d 12, 19 (1st Cir. 2009) (noting that not only
can it be
challenging to distinguish between temporary detentions and de facto
arrests,
but line between them “can shift in the course of a single encounter so
that
what starts out as an investigatory stop may morph into a de facto
arrest”).   So much for timely resolution of
time-sensitive
PRA requests.[7]
¶ 33.        
In Caledonian Record Publ’g Co. v. Walton, 154 Vt. 15,
23, 573
A.2d 296, 301 (1990), our principal precedent on the issue raised in
this case,
this Court concurred with the “holdings of Ohio and Texas courts that
arrest
records are not records dealing with the investigation and detection of
a
crime, but rather are the product of such an investigation.”  Walton
established that a citation was the equivalent of an arrest for
purposes of the
PRA, and described what underlies an accessible arrest record under the
PRA.  Both an arrest and a citation turn upon a police finding of
probable
cause that a crime has been committed and signal a “commencement of a
criminal
proceeding based on that finding.”  Walton, 154 Vt. at 26,
573 A.2d
at 302.  That this meant formal arrest on a charge is clear from
the
assertion that “[l]ike an arrest, a citation must be based upon
probable cause
to believe that the person has committed a crime.”  Id. at
27, 573
A.2d at 303.  Again, the statute’s reference to formal, rather
than de
facto, arrest was reiterated in the Court’s observation that, for
purposes of §
317(c)(5), “[o]ne who has been arrested or issued a citation in lieu of
arrest
is more than just a suspect under investigation” because arrest and
citation
converts the person from suspect to an accused “summoned into
court.”  Id.
at 26-27, 573 A.2d at 302-03; cf. State v. Lancaster Police Dep’t,
528
N.E.2d 175, 178 (Ohio 1988) (noting that investigation of suspect,
unlike
arrest or issuance of citation, involves “no public action”). 
Thus, “for
the purposes of the public access statutes,” both an arrest and the
issuance of
a citation “crosses the line between a police investigation and the
judicial
process.”  Walton, 154 Vt. at 27, 573 A.2d at 303. 
The line
arrived at in Walton was bright enough, and was not crossed
here.
¶ 34.        
Then, as now, the distinction in Walton between an
inaccessible
criminal investigation file and publicly available records of a later
formal
arrest or citation accompanied by a charge makes sense.  The PRA’s
wording
and objective requires no extension of “arrest” to temporary detentions
incidental to a criminal investigation.  That this is what the
Legislature
intended is reflected in its express connection of the public arrest
record to
a public charge in § 317(c)(5).[8]
¶ 35.        
Limiting public disclosure under § 317(c)(5) to incidences
involving only formal arrest, rather than temporary de facto arrests,
is also
consistent with principles of common law access to such records to
prevent
secret arrests and provide basic information to the public regarding
individuals
subjected to the judicial process.  See Cnty. of Los Angeles
v.
Superior Court, 18 Cal. Rptr. 2d. 409, 416 (Ct. App. 1993)
(observing that
analogous public-record-act provision was intended “only to continue
common law
tradition of contemporaneous disclosure of individualized arrest
information in
order to prevent secret arrests and to mandate the continued disclosure
of
customary and basic law enforcement information to the press”). 
When, as
here, an investigation is closed without charge, formal arrest or
citation due
to an ultimate police determination of no criminal activity, there is
no secret
arrest, no arrestee answerable to judicial process, and no reason for
the
police to publicize the identity and circumstances of its investigation
of a
private citizen.[9] 
Cf. State ex rel. Jenkins v. City of Cleveland, 613 N.E.2d 652,
660 n.6
(1992) (explaining that not allowing release of records concerning
investigation of suspects before arrest or filing of charges prevents
interference
with ongoing investigation and “protect[s] people’s reputations”).
¶ 36.        
Finally, even assuming an arrest occurred here, the plurality
calls for
release of not only the arrest record, but of all documents related to
the
criminal investigation exempted from disclosure under §
317(c)(5). 
Regarding criminal investigations, the statute permits disclosure only
of
records “reflecting the arrest.”  If not explicit, this
legislative verb
choice fairly implies a narrow exception to the broad exclusion of
criminal
investigative files from public access.  By its terms, an arrest
record
does not automatically encompass documents of the underlying
investigation.
¶ 37.        
Nevertheless, the plurality opinion orders disclosure, beyond
the
statute’s command, of all of the records “in question,” ante, ¶
1, when
plaintiff seeks all of “the Town of Hartford’s records related to the
incident,
including audio recordings of the incident, the witness’s 911 call,
officers’
reports, the dispatcher’s log, and written witness statements.”  Ante,
¶ 5.  Most of those records are outside of the scope of the arrest
record,
and are not publicly available under the statute.  Broader
disclosure may
be a sound public policy choice, but it was not the option adopted by
the
Legislature.
¶ 38.        
Accordingly, I respectfully dissent from extending public access
to
records of de facto arrests without an accompanying criminal charge—in
contradiction of legislative intent—and from expanding that access to
records
beyond the arrest documents as restricted by the statute.

 


 


 


 


 


Associate
Justice

 





[1] 
This statute was amended effective July 1, 2011.  While the old
version
was in effect at the time of the litigation, the parties cite to both
versions
in their briefs and do not argue that the amendment was
substantive.  We
cite to the amended version.


[2] 
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), involved a
request for
documents under the federal Freedom of Information Act, resulting in
the
eponymous list.


[3] 
New England
jurisdictions
adopting an access-unless-harm approach to the release of public
records have
done so by decision, Lodge v. Knowlton, 391 A.2d 893, 895 (N.H.
1978),
and by statute, Conn. Gen. Stat. § 1-210(a), (b)(3); Me. Rev. Stat.
Ann. tit.
16, § 614(1).  Other jurisdictions have also adopted the
access-unless-harm approach by statute.  See, e.g., Alaska Stat. §
40.25.120(a)(6); D.C. Code § 2-534(a)(3); Ga. Code Ann. §
50-18-72(a)(3), (4);
Idaho Code Ann. § 9-335(1); La. Rev. Stat. Ann. § 44:3(a)(1)-(3);
Md. Code
State Gov’t § 10-618(f); Mich. Comp. Laws § 15.243(1)(b); Mo. Rev.
Stat. §
610.100(3); N.Y. Pub. Officers Law § 87(2)(e); N.M. Stat. Ann. §
14-2-1(A)(4); S.C. Code Ann. § 30-4-40(a)(3); Tex. Gov’t Code Ann. §
552.108;
Utah Code Ann. § 63G-2-305(9); Va. Code Ann. § 2.2-3706.B.
 


[4] 
The ambiguity of the exemption’s text relates to the general ambiguity
in
referring to something that does not exist—in this case, the crime that
is the
subject of the investigation.  See generally B. Russell, On
Denoting,
14 Mind 479 (1905) (confronting the ambiguity in references to things
that do
not exist); P.F. Strawson, On Referring, 59 Mind 320 (1950)
(criticizing
Russell for attempting to assign a definite truth or falsity to
sentences with
such references).  On the one hand, one might plausibly say that
the
library of Salem, Massachusetts, contains records dealing with the
investigation of witches.  One can implicitly ignore the fact that
witches
don’t exist.  On the other hand, one might equally well reject the
claim
that there are any records of the investigation and detection of
witches. 
After all, witches don’t exist.  In short, when the object of
investigation or detection does not exist, a reference to records
dealing with
its detection and investigation can be read either as denoting the
records of
the misguided enterprise or as denoting no records at all.  As a
result,
§ 317(c)(5)’s reference to “records dealing with the detection and
investigation of crime” is ambiguous between covering and not covering
the
situation where no crime exists.


[5] 
The dissent claims that the concerns about chilling citizen tips are
equally
strong when the tips turn out to be unsubstantiated.  Post,
¶ 32 n.7.  I disagree.  Tips that turn out to be
unsubstantiated
not only lack any positive value, but can actually be counterproductive
or
harmful.  Citizens should be aware that, if they give information
that
turns out to be unsubstantiated, their anonymity will not be guaranteed.


[6] 
That the subjective approach is misguided is further indicated by the
fact that
a record might be created initially as community caretaking under the
impression that no crime was present, only to discover a crime
subsequently.  We would, I believe, view such a record as a record
of a
criminal investigation.  This situation here is the reverse, and
the
result should be the reverse.  


[7] 
Nor is Justice Dooley’s proposed hindsighted “bright line” approach,
which
would deny that a criminal investigation occurred when no crime was
detected, ante,
¶ 16, consistent with § 317(c)(5) or its purpose.  It is true, as
posited,
that police files on witchcraft investigations would not be records of
criminal
investigations since witchcraft is no crime.  The same cannot be
said,
however, of records of police response to a burglary complaint, and it
is no
less a “record dealing with the detection and investigation of crime”
when the
complaint, like the one in this case, turns out to be unfounded. 
The same
“concerns about chilling citizen cooperation in future cases or
revealing
investigatory tactics” cited by the concurrence as justifying denying
public
access to closed criminal investigations under § 317(c)(5), ante,
¶ 23,
also generally apply to records of police responses to tips and
complaints of
possible, although ultimately unsubstantiated, criminal activity.
 


[8]
 As the plurality points out, § 317(c)(5) was amended effective
July 1,
2011, to refer to records of arrests and records of charges in separate
clauses.  The pertinent reference to records of “initial arrest”
includes
“any ticket, citation, or complaint issued for a traffic violation,”
and goes
on to say that “records reflecting the charge of a person shall be
public.”
 As a whole, the amendment does not undercut the point that §
317(c)(5)
refers to arrests associated with charges, or at least an intent to
charge—in
other words, a “formal” arrest accompanied by an official accusation.
 


[9]
 Citizens are, of course, free to disclose whatever they want
about an
interaction with the police and, in the event of claims of unreasonable
or
abusive police conduct, may publically pursue their remedies and
records
discovery through the courts.



