Divided Court reverses denial of plaintiff’s motion for judgment on the pleadings in Public Record Act case alleging state agency cannot charge for staff time spent in complying with requests to inspect public records.

Doyle v. City of Burlington Police Department, 2019 VT 66 [filed September 13, 2019]


REIBER, C.J.. Reed Doyle appeals the trial court's denial of his motion for partial judgment on the pleadings pursuant to Vermont Rule of Civil Procedure 12(c). In his motion, plaintiff argued that the Burlington Police Department (BPD) unlawfully withheld public records in violation of the Public Records Act (PRA) when it charged a fee for costs that would be incurred by complying with his request. Based on the plain language of the PRA, we hold that the BPD cannot charge for staff time spent in complying with requests to inspect public records. Accordingly, we reverse.

EATON, J., joined by Justice Carroll , dissenting. The Legislature recognized that record requests "entail expending public resources to fulfill requests" and thus established in the PRA "a process for public agencies to charge requesters for the actual costs of copying public records and for staff time associated with fulfilling requests." Sawyer v. Spaulding, 2008 VT 63, ¶ 11, 184 Vt. 545, 955 A.2d 532 (mem.) (citing 1 V.S.A. § 316).

Attorney’s-fee-shifting provision of public record act does not authorize award to prevailing self – represented litigant, even if he is an attorney.

Toensing v. AttorneyGeneral Of Vermont, 2019 VT 30 [filed 4/26/2019]

CARROLL, J. In this appeal, we address whether plaintiff, a substantially prevailing self-represented litigant in a case brought under the Vermont Access to Public Records Act (PRA), is entitled to attorney’s fees because he is an attorney. The civil division of the superior court denied plaintiff’s request for attorney’s fees. On appeal, plaintiff argues that he is entitled to attorney’s fees based on the plain language of the relevant PRA provision, the purpose of the Act, and the public policy underlying the Act. We join the vast majority of jurisdictions construing similar acts in concluding that the PRA’s plain language and purpose foreclose granting attorney’s fees to substantially prevailing self-represented litigants, regardless of whether they happen to be attorneys. Accordingly, we affirm the superior court’s decision

1 V.S.A. § 319(d)(1), provides that “the court shall assess against the public agency reasonable attorney’s fees and other litigation costs reasonably incurred in any case under this 3 section in which the complainant has substantially prevailed.”

The key terms in § 319(d)(1) are defined in Black’s Law Dictionary as follows. Attorney’s fee is “[t]he charge to a client for services performed for the client, such as an hourly fee, a flat fee, or a contingent fee.” Black’s Law Dictionary (10th ed. 2014).

We do not find persuasive plaintiff’s contention that public policy favors awarding attorney’s fees to self-represented attorneys in PRA cases. The analysis of many courts in other jurisdictions construing fee provisions in public record laws stems from Kay v. Ehrler, 499 U.S. 432 (1991). In that case, the U.S. Supreme Court held that self-represented attorneys, like all other self-represented litigants, cannot recover attorney’s fees under the Civil Rights Attorney’s Fees Award Act, 42 U.S.C. § 1988, Since Kay, virtually all federal and state courts construing attorney’s fee provisions in public records laws have held that prevailing self-represented attorneys are not entitled to attorney’s fees, based both on the obvious common definitions of the words “attorney” and “fee,” as well as the policy considerations discussed in Kay.

Cases awarding fees to self - represented litigants are distinguishable as involving attorneys attempting to collect fees from former clients or defending against frivolous lawsuits, or Rule 11  similar violations.

The policy underlying the PRA’s fee provision, as other courts have found with respect to their comparable fee provisions, is not to reward successful litigants or punish recalcitrant agencies,6 but rather to encourage objectively well-informed, meritorious claims by awarding mandatory or permissive attorney’s fees, depending on the agencies’ response to the requests, to defray the cost of incurring those fees needed to obtain public records.

In short, we discern no basis, either in the language of § 319(d) itself or the public policy underlying the PRA, to interpret the fee provision to grant attorney’s fees to self-represented attorneys, but not to other self-represented litigants.

Public Records: deliberations of agency acting in quasi-judicial role are exempt from disclosure

Rueger v. Natural Resources Board, 2012 VT 33 (Reiber, C.J.)

Plaintiffs appeal from the trial court’s summary judgment order in favor of defendants in this  Public Records Act case. The court concluded that certain records held by defendants reflected the deliberations of an agency acting in a quasi-judicial role and thus were exempt from disclosure under 1 V.S.A. § 317(c)(24). We affirm.

This case involves a specific and plainly stated statutory exemption under the PRA.  That exemption protects “records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.” The documents at issue were emails between Committee members and the Committee’s counsel, all of which concerned the basis for District #9’s decision to disqualify itself from hearing an application. In enacting § 317(c)(24) our Legislature has determined that all judicial or quasi-judicial “deliberations” are exempt from disclosure. It does not purport to incorporate a “deliberative process privilege”. The trial court was not obligated to weigh the public interest in disclosure against the defendants’ legitimate expectation of privacy. Simply because an agency member speaks with a newspaper reporter or other individual, the agency did not open the deliberative process to scrutiny. The Legislature evaluated the competing interests and concluded that a blanket exemption on quasi-judicial deliberations was appropriate.

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.

Public record request cannot be denied on the pleadings

Bain v. Clark, 2012 VT 14 (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. The trial court found the records exempt from disclosure under 1 V.S.A. § 317(c)(5) as “records dealing with the detection and investigation of crime,” and dismissed the complaint for failure to state a claim on which relief could be granted. We reverse and remand.

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).

Applying this standard, we must reverse and remand. Section 317(c)(5) 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 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. “ 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.” Assuming these radio dispatch and unit logs do exist, we cannot discern from the record precisely what information they might contain. 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.”

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, 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). 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)).