Editorial: Vital Scrutiny; Protecting Public’s Right to Know

Some court cases are so fraught with complex issues that the wisdom of Solomon and the patience of Job are required to arrive at some semblance of justice. And in some other cases, a little common sense will do.

An instance of the latter is the Vermont Supreme Court’s unanimous rejection last week of the city of Rutland’s far-fetched claim that releasing records related to the investigation and discipline of three police department employees for accessing pornography on work computers while on duty would invade their privacy.

The city, which was appealing a lower court order to release the files in a suit brought by the Rutland Herald, made the argument that the records were “personal documents” and therefore exempt from disclosure under state law.

It’s hard to figure out just exactly what expectation of privacy these employees harbored while engaged in this particular activity, which included one employee downloading between 5,000 and 10,000 pornographic images onto his work computer, including possible child pornography. An investigator estimated that a week of constant viewing would be required to review all the images.

As Associate Justice Brian Burgess, writing for the court, noted, the exemption for personal documents applies only when the privacy of an individual is involved and when those documents “reveal intimate details of a person’s life.” Examples of this presumably would be Social Security numbers, medical history, dates of birth and the like. So while the decision to look at pornography at work may be an intimate one, it’s not the kind of intimacy the law protects.

But if — and it’s a big if — any privacy interests are implicated here, the Supreme Court agreed with the lower court that they must yield to the public’s right to evaluate how effectively the police department is being managed. The information is “vital to the public’s ability to scrutinize both the employees’ behavior and management’s response to that behavior,” Burgess wrote.

This, of course, is the key point. The public has a compelling interest in obtaining the information necessary to assess how its tax dollars are being spent and whether the police department is effectively managing and disciplining its work force. Police officers hold a public trust and exercise powers society grants to no other group of public employees — to deprive citizens of their liberty and to use force where warranted. As such, their conduct must be subject to the highest degree of scrutiny by those who pay their salaries and in whose name they act.

All this is simple common sense. But the particular section of Vermont’s Public Records Act on which the decision hinged is written in such a way as to invite government agencies to inappropriately invoke the exemption, which applies to “personal documents relating to an individual, including information in any files maintained to hire, evaluate, promote or discipline any employee of a public agency, information in any files relating to personal finances, medical or psychological facts concerning any individual or corporation.” The courts have interpreted this exemption narrowly and appropriately so. It would be better still if the Legislature specified exactly what records are covered and made clear that disciplinary records of public employees ought to be subject to public disclosure except for those few genuinely personal details.