Rutland Herald v. City of Rutland ( 2012 )


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  • Rutland Herald v. City of Rutland, No. 221-3-10 Rdcv (Cohen, J., Sept. 27, 2012)
    [The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
    accompanying data included in the Vermont trial court opinion database is not guaranteed.]
    STATE OF VERMONT
    SUPERIOR COURT                                                                                         CIVIL DIVISION
    Rutland Unit                                                                                           Docket No. 221-3-10 Rdcv
    Rutland Herald
    Plaintiff
    v.
    City of Rutland
    Defendant
    Decision on Remand
    At issue is whether the City of Rutland must disclose records of a 2004 investigation into
    allegations that an employee of the city police department viewed pornography, including possible
    child pornography, on a work computer. The case has been remanded for a determination as to
    whether the records are exempt from disclosure under 1 V.S.A. § 317(c)(5) as records “dealing with
    the detection and investigation of crime.”1 Rutland Herald v. City of Rutland, 
    2012 VT 26
    , ¶ 32
    (“Rutland Herald II”).
    The following facts were established at the evidentiary hearing on remand. In 2004, a routine
    troubleshooting of a work computer used by “RPD Employee #1” revealed the presence of
    pornographic images on the hard drive. Captain Scott Tucker was assigned to investigate. His initial
    assignment was to determine whether or not the employee had viewed pornography on a work
    computer—a violation of the city’s computer-usage policy, but not a crime.
    After reviewing the contents of the computer, however, Captain Tucker became suspicious
    that it might contain images of possible child pornography. He secured the computer and sent it to a
    specialist at the Vermont State Police for a forensic examination. The specialist determined that the
    computer contained images of possible child pornography but that the evidence was not sufficient to
    support a criminal prosecution because of the location of the images on the hard drive. Cf. People v.
    Kent, 
    970 N.E.2d 833
    , 840–41 (N.Y. 2012) (discussing evidentiary issues involved with proving that
    images found in a computer’s cache were knowingly possessed by the user).
    After receiving this assessment, Captain Tucker resumed his investigation with a primary
    focus on determining whether the employee had violated the workplace rules regarding computer
    usage. In his interview questioning, however, he continued to explore the possibility of a knowing
    possession of child pornography because, as he put it at the evidentiary hearing, he “never gave up on
    the possibility that this was criminal.”
    1
    The case was remanded to the court with respect to three separate internal-affairs investigations, but the
    parties have reached agreement as to the appropriate handling of the documents from both 2010 investigations. All
    that remains for decision is the question of whether the records from the 2004 investigation should be disclosed.
    In determining whether the records of these investigations “deal[] with the detection and
    investigation of crime,” the court begins with a recognition of the constitutionally-protected interest
    in public access concerning the activities of law-enforcement officers. Galloway v. Town of
    Hartford, 
    2012 VT 61
    , ¶ 9; Bain v. Windham County Sheriff, 
    2012 VT 14
    , ¶ 17; Caledonian Record
    Publishing Co. v. Walton, 
    154 Vt. 15
    , 21 (1990). It “do[es] not overstate the case [to say] that open
    access to governmental records is a fundamental precept of our society.” Bain, 
    2012 VT 14
    , ¶ 17.
    Our tradition of open government is founded on the premise that our public officials 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.” Price v.
    Town of Fairlee, 
    2011 VT 48
    , ¶ 13, 
    190 Vt. 66
    (quoting 1 V.S.A. § 315); Peter R. Teachout,
    ‘Trustees and Servants’: Government Accountability in Early Vermont, 
    31 Vt. L
    . Rev. 857 (2007).
    The public interest in disclosure is particularly acute with respect to law-enforcement activities.
    
    Walton, 154 Vt. at 21
    .
    The other guiding principle is recognition of the important interest of the state in protecting
    the public from criminal activity and in preserving the confidentiality of the state’s methods of
    detecting and investigating crime. Rutland Herald v. Vermont State Police, 
    2012 VT 24
    , ¶ 9
    (“Rutland Herald I”). Our legislature has balanced these two important interests by concluding that,
    as a general matter, records should remain exempt from public disclosure when they are shown by
    the state to be records “dealing with the detection and investigation of crime.” 1 V.S.A. § 317(c)(5).
    Each public-records case presents a fundamental tension between the public interests in
    disclosure and the state’s interests in withholding the information from the public, and a degree of
    navigational fine-tuning is needed in every case to preserve the definitional balance intended by the
    legislature with respect to the scope of the exemption. In every case, therefore, the court must
    additionally be guided by the principle that the scope of any exemption from disclosure must be
    carefully construed against the records custodian, with doubts drawn in favor of the right of public
    access. Galloway, 
    2012 VT 61
    , ¶ 9.
    With respect to the § 317(c)(5) exemption, many of the applicable cases have dealt with the
    situation where a law-enforcement agency investigates a private citizen for suspected criminal
    activities that are external to the agency’s own operations. Rutland Herald II, 
    2012 VT 26
    , ¶ 27. In
    these cases, the governmental interests are at their apex because the agency is fulfilling its primary
    police function of protecting the public, and the public interests in disclosure are mitigated by the
    privacy rights of the uncharged individual who was the subject of the investigation. As such, records
    from these types of external investigations are usually held to be exempt from disclosure so long as
    the agency is able to identify a particular individual or incident as the object of the investigation and
    a plausible, objective basis for connecting that individual or incident to a possible violation of the
    criminal laws. King v. Dep’t of Justice, 
    830 F.2d 210
    , 230 (D.C. Cir. 1987); Pratt v. Webster, 
    673 F.2d 408
    , 419–20 (D.C. Cir. 1982).
    A different situation occurs when a law-enforcement agency investigates the conduct of one
    of its own employees. Under these circumstances, the public interest in disclosure is at its peak
    because the public has a heightened interest in the disclosure of records that shed light upon an
    agency’s performance of its official duties—here, the workings of the city police department in
    investigating the alleged misconduct of its own employees. Providence Journal Co. v. Dep’t of the
    Army, 
    981 F.2d 552
    , 568 (1st Cir. 1992). At the same time, the governmental interests in the
    protection of the citizenry are at their lowest ebb, at least to the extent that the government is
    monitoring its own employees rather than engaging in its primary law-enforcement function. Rural
    2
    Housing Alliance v. Dep’t of Agriculture, 
    498 F.2d 73
    , 80–82 (D.C. Cir. 1974). As such, records
    from internal investigations are usually ordered to be disclosed unless the government is able to
    prove that the internal investigation was conducted for the purpose of determining whether the
    employee violated the criminal laws, as opposed to mere “workplace infractions that do not
    necessarily constitute criminal conduct.” Rutland Herald II, 
    2012 VT 26
    , ¶ 23. Here, because of the
    heightened public interest involved, the court is generally less deferential to the agency’s explanation
    as to the nature of its investigation, and a more searching, objective inquiry is undertaken. 
    Stern, 737 F.2d at 88
    –89.
    At an even finer resolution, there is an additional distinction between internal investigations
    that seem to contain “mixed” components. If the internal investigation was conducted for both
    criminal and disciplinary purposes, then the exemption applies so long as the agency is able to
    demonstrate that the internal investigation was “tied in” with a criminal investigation into the
    question of whether a particular identified official committed a specific criminal act. Rutland Herald
    II, 
    2012 VT 26
    , ¶¶ 23–24; Jefferson v. Dep’t of Justice, 
    284 F.3d 172
    , 177 (D.C. Cir. 2002). If the
    internal investigation was conducted primarily for disciplinary purpose, however, then the exemption
    does not apply even though the investigation might reveal evidence that later could give rise to a law-
    enforcement investigation. 
    Kimberlin, 139 F.3d at 947
    .
    In addition, in viewing the case through the lens of these particular microscopes, the court
    must be careful not to lose track of the gravitational pull of the various interests at stake. It would
    not further the objectives of transparency and open government for the court to determine that
    records should be exempted from disclosure if such a characterization would not serve the purposes
    of the exemption for documents dealing with the detection and investigation of crime. Nor would it
    further the important interest in public protection for the court to determine that an investigation was
    primarily done for the purposes of discipline, and thus the records should be made public, if doing so
    would compromise the effectiveness of the law-enforcement community’s methods of detecting and
    investigating crime.
    In this case, therefore, the court has carefully considered both the nature of the investigations
    and the significance of the resulting documents in relation to the overarching interests at stake. After
    such consideration, the court concludes that the city has failed to prove that its internal investigation
    was done for the purpose of determining whether its employee committed a violation of the criminal
    laws. The available, objective evidence instead persuaded the court that the captain was assigned to
    determine whether or not the employee committed a workplace infraction, thus placing the records of
    this investigation squarely within the § 317(c)(7) exemption rather than the § 317(c)(5) exemption.
    Rutland Herald II, 
    2012 VT 26
    , ¶ 24.
    In reaching this conclusion, the court considered very carefully the captain’s testimony that
    he undertook the investigation with an open mind as to the possibility of criminal conduct, and that
    he never gave up on the possibility of proving criminal conduct. But as the captain also said, it is his
    job to this in every case. A preservation of the balance intended by the legislature with respect to the
    scope of the § 317(c)(5) exemption therefore requires the court to focus on the available objective
    evidence, which showed an investigation that was primarily undertaken for the purposes of employee
    discipline. 
    Stern, 737 F.2d at 89
    .
    The public has an intense interest in knowing how the city police department investigates its
    own employees for workplace-related misconduct. This is especially true with respect to the public’s
    interest in knowing the processes by which the department undertakes and completes its internal
    3
    investigations. It would serve the public well to know that their police department completed an
    honest investigation for the good of the department and for the integrity of the men and women who
    perform their jobs with professionalism.
    Moreover, the release of these records would not compromise any governmental interest
    involving the detection and investigation of crime. See Galloway, 
    2012 VT 61
    , ¶ 9 (scope of
    exemption must be narrowly construed so as to further the purposes of open government). As such,
    the court concludes that the government has not proven the applicability of the § 317(c)(5)
    exemption. The release of these records is better handled under the disciplinary-records exemption,
    1 V.S.A. § 317(c)(7), subject to the balancing and redactions already undertaken by this court in its
    orders of September 2010 and the clarification set forth in Rutland Herald II, 
    2012 VT 26
    , ¶ 42.
    However, the court reaches a different conclusion with respect to the forensic examination
    conducted by the VSP. Here, the evidence showed that after Captain Tucker made his initial
    investigation of the computer, he decided to initiate a criminal investigation of the employee’s
    conduct by sending the computer to VSP for a forensic examination. A specialist thereafter
    conducted the forensic examination and prepared a report with findings and conclusions; the release
    of the report and the evidence uncovered during the examination would surely compromise the
    interests of the state in preserving the confidentiality of its methods of detecting and investigating
    crime. As such, the court is persuaded that the VSP investigation was initiated for the purpose of
    determining whether the employee committed the crime of knowing possession of child
    pornography, and the evidence gathered by the specialist, along with his report, is exempt from
    disclosure under § 317(c)(5). As to these records, there is no further balancing of the respective
    interests at stake; the records are categorically and permanently exempt from disclosure. Rutland
    Herald I, 
    2012 VT 24
    , ¶ 12.
    The final conclusion is that the records related to the VSP forensic examination into the
    question of whether the employee committed the crime of knowing possession of child pornography
    are exempt from disclosure under § 317(c)(5). All other records relating to the internal investigation
    of “RPD Employee #1,” complied either before or after the VSP investigation, are not exempt from
    disclosure under § 317(c)(5), and must be disclosed subject to the redactions already proposed by the
    court in September 2010, and subject to additional redactions, if necessary, of all personally-
    identifying information about “RPD Employee #1,” as well as redactions of the dates of suspension.
    The City of Rutland shall release the appropriate records within ten days unless any party
    files for appeal, in which case the disclosure of the documents shall be stayed pending appeal.
    SO ORDERED
    Dated at Rutland, Vermont this ____ day of September, 2012.
    __________________________
    William D. Cohen
    Superior Court Judge
    4
    

Document Info

Docket Number: 221

Filed Date: 9/27/2012

Precedential Status: Precedential

Modified Date: 4/24/2018