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Vermont Officials Seek to Open Police Files

Vermont Gov. Peter Shumlin. (Valley News - Peter Shumlin)

Vermont Gov. Peter Shumlin. (Valley News - Peter Shumlin)

On the eve of a new legislative session, top state officials are supporting a change in the law that would require police to release files from their investigations, potentially shedding light on key records that law enforcement have traditionally kept secret from the public.

The legal change, which has long been sought by open-government advocates, gained momentum yesterday when Gov. Peter Shumlin swung his support behind it during a press conference in which he announced several “transparency” initiatives. Under the governor’s proposal, the law would change to assume that records of criminal investigations should be disclosed unless officials could demonstrate a specific “harm” that their release would cause. Under the current law, police generally assert a blanket right to keep the records sealed, which critics say allows police to operate with little public oversight.

“This is all about accountability,” Shumlin said. “Government (officials) should have nothing to hide and if they do we should know about it.”

Shumlin is not the only state official to support the change. Vermont Attorney General William Sorrell, whose office has routinely fought in court to keep records sealed, said in recent weeks that he supports a limited version of Shumlin’s proposal. And State Sen. Dick Sears, chairman of the Judiciary Committee, said making records open is one of his priorities for the upcoming session, scheduled to open Wednesday.

Vermont’s public records law, which generally allows citizens to access all manner of government records, contains an exemption for records of “detection and investigation of crime.”

That exemption has routinely been invoked by law enforcement authorities to refuse to turn over — to journalists and open-government groups — files from cases that have been closed, or never resulted in criminal charges. For example, Hartford police, backed by Sorrell’s office, declined to release files from two incidents in which officers were alleged to have used excessive force against citizens who were later found to have committed no crime.

In addition, the Vermont State Police have refused to release records of their investigations into local police officers accused of misconduct.

Critics say the current law allows the police to operate with little oversight, and results in the Vermont Attorney General’s Office clearing officers of criminal wrongdoing without showing the public how they reached those conclusions. Several legal experts who, at the request of the Valley News last year, reviewed a file of a Vermont State Police investigation into Hartford police officers accused of assaulting a naked and unconscious Wilder man said that state police appeared to soft-pedal the inquiry and only spotlight facts that made the police officers look good. (The Valley News obtained the file from confidential sources — police declined to release the file, citing the legal exemption.)

The American Civil Liberties Union and other organizations have argued that police are misapplying the current law, and have pushed to re-write it to mirror a federal standard, which has been adopted by 21 states and requires disclosure of records absent harm, which could include privacy or jeopardizing criminal prosecutions. Shumlin’s proposal would do exactly that.

“It’s not only the public that’s hurt by secrecy, it’s the good people in the police department that are hurt by the deeds of a small number of officers,” Vermont ACLU Executive Director Allen Gilbert said. “We hope there is a bill and we hope it passes.”

In an interview this week, Sears said he supports adopting the federal standard for releasing documents.

And Sorrell, whose office has fought to keep records sealed, wrote a letter to Sears in December in which he voiced support in releasing files from investigations of other police. Sorrell, who came out in favor of such a plan during a close primary challenge last year, did not support such a change for investigations involving citizens.

“The vast majority of public discussion and debate about transparency relating to such files concerns access to files relating to investigations of on-duty conduct by police when no criminal charges are files,” Sorrell wrote to Sears on Dec. 20. “There are also some who believe that prosecutors, even when the facts warrant a prosecution, show favoritism to police by not filing charges. To attempt to effect greater respect for the integrity of the criminal justice system ... I propose that the current confidentiality of closed criminal investigative files be changed when the investigation has focused on on-duty conduct of law enforcement officers and a decision has been made that no criminal charges be filed.”

State Sen. Dick McCormack, D-Bethel, said he has been collaborating with Sorrell and plans to introduce a bill that would follow Sorrell’s recommendations.

“Investigations of the police should be public,” McCormack said. “Cops are doing a difficult, dangerous job in the public interest and they’re constantly subject to criticism. (But) we allow the police to carry guns, to kill people, to arrest people; the kind of power we give the police means they ought to have a level of accountability greater than the average Joe.”

Both Gilbert and Shumlin administration officials said this year’s legal push was sparked in part by a Vermont Supreme Court opinion last year in which Justice John Dooley said that the exemption for investigative records was “overly broad,” and urged lawmakers to “re-examine” the ruling.

Mark Davis can be reached at mcdavis@vnews.com or 603-727-3304.