Galloway v. Town of Hartford, No. 473-8-10 Wrcv (Ha yes, J., Nov. 8, 2010) [The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION Windsor Unit Docket No. 473-8-10 Wrcv │ Anne Galloway, │ Plaintiff │ │

v. │ │ Town of Hartford, │ Defendant │ │

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER A hearing on the merits was held on October 28, 20 10. The plaintiff appeared, and was represented by Dan Barrett, Esq., and the d efendant was represented by Joseph Farnham, Esq. The evidence was largely based on s tipulation. The parties agreed that in deciding the issues the court could rely on the aff idavit of Fred Peyton, a police officer with the Hartford Police Department, dated August 2 7, 2010, attached to the Town’s motion for summary judgment filed on August 30, 201 0. Chief Glenn Cutting of the department also testified briefly. Both parties s ubmitted written arguments in connection with their motions for summary judgment, and they r elied on these as well. The court denied the motion for summary judgment on October 1 5, 2010, finding that there was a dispute between the parties as to the question rega rding whether the activities of the police as to which records were being sought were a criminal investigation. Based on the evidence presented, the court makes t he following findings of fact: On May 29, 2010, the Springfield Police Department received a telephone call from a citizen who reported that she suspected criminal ac tivity at an address in Hartford.2

Police officers Peyton, Adams and Moody went to tha t address. Officer Peyton met with the complaining witness there. She told him that t he residence appeared “ransacked”, that there was an unknown male person upstairs of w hom she was fearful, and that something was burning inside. The police entered the residence. They found a good deal of smoke. They searched the residence, found a male inside, and attempted to communicate with him. During the course of their contacts with this person officers sprayed him with pepper spray, and handcuffed him b y force. He was released from handcuffs within 15 minutes. He was then transport ed to a medical facility. He was not charged with any offense. It was decided that the re was no probable cause to charge this person with any criminal offense. The plaintiff seeks the release of all of the Town ’s records related to this incident. Chief Cutting stated that the officers involved wer e “miked” so there are audio recordings

of the events at the residence. There is also a ta pe of the initial 911 call to the police. The officers’ reports and the dispatcher’s log are also among the records related to this event in the custody of the Town. There may also be written witness statements. These are the records that the plaintiff seeks under the Public Records Act. The plaintiff, a journalist, first made a written request for the records to the chief of police, which was denied. She appealed to the town manager, who upheld the chief’s decision. The plaintiff then she filed this action

. Chief Cutting testified that he has referred the D epartment’s conduct in connection with this incident to the Vermont Depart ment of Public Safety for investigation, and that investigation had not been concluded as of the date of the hearing. The Town did not rely upon this investigation as a basis for non-disclosure of its records.3

CONCLUSIONS OF LAW The plaintiff seeks disclosure of the Town’s recor ds under the public records law, 1 V.S.A. §§ 315 et seq. The stated policy and intent of the law is “to provide for free and open examination of records consistent with Cha pter I, Article 6 of the Vermont Constitution.” Section 315. The legislature spec ifically recognized that “it is in the public interest to enable any person to review and criticize [the] decisions [of governmental officers] even though such examination may cause inconvenience or embarrassment,” subject to individuals’ privacy rig hts. Id . Therefore, the law is to be “liberally construed” to carry out these goals. Id . The Supreme Court has affirmed that the statute should be liberally construed, and that , in fact, any exceptions listed in the statute “should be construed strictly against the c ustodians of the records and any doubts

should be resolved in favor of disclosure.” Caled onian-Record Publishing Co. v.

Walton , 154 Vt. 15, 20 (1990). The agency seeking to av oid disclosure “cannot discharge [its] burden [of proof] by conclusory cla ims or pleadings. They must make the specific factual record necessary to support the ex ception claim.” Finberg v. Murnane , 159 Vt. 431, 438 (1992). The statute defines a public record broadly as “an y written or recorded information, regardless of physical form or charact eristics, which is produced or acquired in the course of public agency business.” Section 317(b). There is an exception related to investigation of crimes, as follows: records dealing with the detection and investigatio n of crime, including those maintained on any individual ...; provided, however, records relating to management and direction of a law enforcement agenc y and records reflecting the initial arrest of a person and the charge shall be public.4

Section 317(c)(5). The Town relies upon this exce ption for its denial of access to the records requested. The sole question for the court, therefore, is whe ther, applying the standards set forth above, the Town has demonstrated that the rec ords in question “deal... with the detection and investigation of crime.” It is clear that the first contact that the Department received from a member of the public was a complain t of suspected criminal activity. However, at the end of the interaction, the police had apparently determined that no crime had been committed. The “suspect” was not and wil l not be charged with any criminal

or civil offense related to this event. No citatio n was issued, and no affidavit of probable cause was drafted by any officer involved in the ma tter. The public interest in full access to records “is particularly acute in the area of law

enforcement.” Caledonian Record , supra , at 21. In Caledonian Record , which focused on whether criminal citations were exempt from disc losure, the Court noted that cases

such as this one are decided “in the shadow of the First Amendment...public and media ... right of access to information relating to the ac tivities of law enforcement officers and to information concerning crime in the community.” Id . However, the Court also noted that “the state has significant interests in protec ting 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

Public Access statute was intended to mirror the co nstitutional right of access, and as such, the exceptions enumerated in the statute allo w a balancing of the competing

interests.” Id

.5

In determining whether citations for criminal off enses should be included within the “arrest” exception stated above, and therefore subject to full disclosure, the Supreme

Court looked to other states’ decisions under analo gous statutes for guidance. Relying on decisions from Ohio and Texas, the Supreme Court held that “arrest records are not records dealing with the detection and investigatio n of crime but rather are the product of such an investigation,” and should therefore be dis closed under the Act. Id . at 23 (emphasis added). The court went on to determine t hat citations were equivalent to arrests in being the result of rather than a part o f a criminal investigation, and therefore fell within the “arrest” exception. Here, both parties spend considerable energy argui ng whether or not the facts support a finding that the individual whom the poli ce encountered on this occasion was subjected to an arrest. However, according to Cal edonian Record , supra , the term “arrest” in the public record statute plays a very different role than it does in other contexts related to criminal prosecution or litigat ion related to 4 th and 5 th Amendment rights. In the public records exception, “arrest” is used as a term to distinguish cases in which a criminal investigation has ended, and an “a rrest,” or citation, is the product of that investigation, from those cases in which there is still an ongoing criminal investigation. The Court clearly found that only those records that directly relate to an active, ongoing criminal investigation, or that are protected by some other clearly enunciated and demonstrated protected privacy or pu blic interest, would the statutory exception protect agency records under Section 317( b)(5). Id . at 23-26. The Court specifically found that the so-called “arrest excep tion” to the investigatory records exemption is not an exception at all, but rather a legislative attempt to insure with6

complete clarity that it is only investigative records that need not be disclosed. Records that state the final outcome of an investigation ar e not investigative records. Id . at 25-26. In this instance, the police were clearly involved , initially, in an investigation into suspected criminal activity. Under Section 317(b) (5), the records that they created during the course of that investigation are not sub ject to disclosure. However, the stipulated facts also show that any criminal invest igation concluded at some point during the process of police interaction with the individu al in question. The Town conceded at the hearing that the investigation was in fact over , and that no criminal charges were going to result. It is not clear what portion of the town’s records were created after it had been determined that this was no longer a crimi nal investigation. It is also not clear whether that conclusion is contained in any specifi c memorandum, letter, or other document. What is clear is that under the public re cords act, any and all records that were generated by the Town after the decision that there would be no criminal charge are not subject to the claimed exemption, and should be dis closed forthwith. The court can see no legitimate policy basis for an y other finding. When the final result of a criminal investigation is that a suspect has been cleared of wrongdoing, the records that show that outcome should be subjec t to public disclosure, just as they are when a person is in fact charged with a crime. Th e records that show the outcome of a criminal investigation are not the records “of the investigation”, but its product, and therefore they are subject to disclosure under the analysis used in Caledonian Record , supra

. 1

1 The court notes that this ruling is not meant to s uggest that disclosure of records of ongoing invest igations where a suspect is still under suspicion would be r equired under the public records law, even if such suspicions are tenuous. Rather, it is limited to cases in which the police initially suspect a crime has been committed, but then determine definitively either t hat there has been no crime, that the conduct is su ch that7

The court therefore directs that the Town disclose any and all documents and records in its possession related to the incident i n question that were created or obtained

after the decision had been made that no further crimina l investigation would be pursued in connection with the individual whom the police c ontacted on the date in question. This disclosure should be made within 7 days of rec eipt of this order.

The court also orders that the records of the Town that were made in connection with this incident up until the time that it was de cided that no criminal charges would be brought against the individual in question are exem pt from disclosure under Section 317(b)(5), and need not be disclosed. If either party believes that an additional hearing is necessary in order to determine what records as subject to disclosure, wh ich seems highly likely in light of the sparse evidentiary record created so far, they shou ld file written request, with any supporting explanation and an estimate as to the ti me needed for any such hearing, within three days of receipt of this order. If such a he aring request is granted, the court will require that the Town immediately prepare and file a Vaughan index of all records related to this incident, including both those it believes are subject to disclosure and those it believes are exempt from disclosure under this ruli ng, in chronological order of preparation.

no criminal charge is warranted, or that they have the wrong suspect. The record of such a determina tion, like a citation or criminal arrest, is the “product ” of such an investigation, and is not excepted fro m public disclosure. The court also notes that it is not r uling on the applicability of any other possible ex emptions under the public records law to protect the suspect ’s privacy, as none have been raised.8

Dated at Woodstock this 4th day of November, 2010.

_____________________________ Katherine A. Hayes Superior Court Judge

_____________________________ William Boardman Assistant Judge