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Editorial: Police Records

We welcome Vermont Attorney General William Sorrell’s enlistment on the side of transparency in the fight to open up police records to public scrutiny. We just wish his view of the battlefield were broader and clearer.

As staff writer Mark Davis reported in Friday’s Valley News, Sorrell has officially proposed a change in statute to make public the records of investigations into allegations of police misconduct.

The attorney general has withheld such records in the past — including those compiled during his office’s investigation into three allegations of police brutality in Hartford in recent years — citing the exemption from disclosure contained in current law for records dealing with the “detection and investigation of crime.”

In testimony before the Senate Judiciary Committee last week, Sorrell referred to the Hartford cases, in which all the officers involved were cleared of criminal wrongdoing, as evidence that public confidence in the outcomes of investigations of alleged police misconduct by other law enforcement agencies would be bolstered if the records were made public. We couldn’t agree more.

But such cases are only a small, if important, subset of records that the public and press need access to in order to assess how the police perform their vital functions.

The current law imposes a blanket exemption for police records, save for an obligation to disclose the name and charge in cases where people have been arrested. Even this requirement needs to be strengthened, as New Hampshire did last year in mandating that police provide a description of the events surrounding arrests as well as the bare facts.

But, of course, many encounters between police and public do not result in arrests, and records of those interactions also need to be available for public scrutiny. Here’s just one example of why: Suppose information came to light suggesting that police were engaging in profiling by age or race in making traffic stops. Currently, an enterprising reporter could examine records of arrests, tickets and citations to see if a pattern emerged, but that would be only half the story. She would need access to reports of traffic stops that did not result in arrests in order to determine whether the whole pool of drivers stopped reflected any bias.

That’s why we wish Sorrell would go further and back a proposal by Gov. Peter Shumlin, or better yet, a somewhat different one advanced by the Vermont chapter of the American Civil Liberties Union. These proposals essentially would adopt the federal standard for access to police records, by establishing a balancing test between the public’s right to know and legitimate privacy interests. If police could demonstrate that disclosure would harm an investigation or an individual involved, then the record could be withheld. If not, it would have to be released.

Even this falls short of the standard articulated by state Supreme Court Justice John Dooley in a civil suit seeking records in one of the Hartford cases. “What is sorely needed in this area are simple and predictable rules that can be applied by the custodians of public records and, where necessary, by trial courts,” Dooley wrote. His solution was simple: When a case is closed and no charges have been brought, by definition the records involved do not deal with “the detection and investigation of crime,” because no crime has been committed. Thus they must be disclosed. We doubt that anything so simple and sensible will result from whatever rewrite of the Public Records Law the Legislature agrees on, but all of the proposals on the table do appear to advance the cause of openness and accountability.