Public records / Constitutional law. Internal police investigations are not public records as relating to “the management and direction of a law enforcement agency.” Accountability Clause of Vermont Constitution, Chapter I, Article 6, is not self-executing.

Rutland Herald v. Vermont State Police, 2012 VT 24 (Skoglund, J.) (Dooley, J., concurring in part and dissenting in part.)

This case concerns public access to records of 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 the State 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).   The Herald has not challenged this threshold determination, and we accept the trial court’s characterization of these records. The Herald asserts that disclosure is appropriate because the investigation is complete, and the public interest favors disclosure.  The Herald also argues  that the records at issue must be disclosed because they “relat[e] to [the] management and direction of a law enforcement agency”  within the exception to the criminal record exemption, 1 V.S.A. § 317(c)(5).  Finally the Herald asserts that the Vermont Constitution, particularly Chapter I, Article 6, mandates disclosure. We reject these arguments and affirm.

The statute is broadly worded and it provides a categorical exemption for certain records irrespective of their specific content. 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.   The words “maintained” and “compiled” suggest that the Legislature anticipated keeping investigatory records exempt after an active investigation had ended.    Had the Legislature intended the exemption to exist only during an ongoing investigation, it could have been much more specific.  The PRA  contains other exemptions with specific temporal limitations. Other state courts 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.  Because § 317(c)(5) provides a record-based, rather than content-based, limitation, it is not appropriate to read a temporal limit or a balancing test into the statute.  

Section 317(c)(5) contains an exception that makes public “records relating to management and direction of a law enforcement agency.”  According to the Herald, any investigation into illegal activity by law enforcement individuals, by definition, falls within this proviso.  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. Indeed 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). 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.   Nothing in the legislative history 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.”

Chapter I, Article 6, of the Vermont Constitution 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.”   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.  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. “   Welch v. Seery, 138 Vt. 126, 128, 411 A.2d 1351, 1352 (1980). Article 6 does not provide the specificity necessary to create legal entitlements with definite character, and is not self-executing.  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.   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.

Dooely, J., dissents from the majority decision with respect to the inquest records, but concurs with 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, and also with the majority decision that  the statute, so construed, does not violate Article 6 of Chapter I of the Vermont Constitution.  Justice Dooley also agrees 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 Legislature may have wanted transparency if the investigation of crime involves investigating the actions of a law enforcement agency or its employees.  Thus, Justice Dooley does not agree with the majority’s conclusion that the Herald’s position would “swallow the exemption.”  The proviso is needed because 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 but instead with the overall management and direction of the agency.  Since the records the Herald seeks do not relate to the management and direction of the VSP, the proviso does not apply.