Editorial: Opened Records; Vermont Makes an Overdue Change

While fear about the abuse of governmental power tends to be abstract, it’s anything but in the case of law enforcement — in large part because it pertains to commonplace encounters with the police. When fallible human beings are issued guns and the power to deprive citizens of their liberty, the harm that can result from incompetence, corruption, prejudice, poor judgment or malice is potentially enormous. For that reason alone, law enforcement officials must be held to a higher standard of accountability than other agents of the government.

Until last week, exactly the opposite prevailed in Vermont. State law protected the right of Vermont residents to review the records and monitor the decision-making of the people who conduct business on their behalf, but it carved out a perniciously broad exemption for law enforcement records regarding the “detection and investigation of crime.”

Valley News readers are well aware of the consequences of this exemption. In cases where legitimate questions arose about police conduct, no good answers could be had. When the Hartford police responded to a telephone call about what was believed to be a burglary, did they act reasonably by pepper-spraying and handcuffing the naked black man they encountered — who, it turned out, was in his own home and in the midst of a medical crisis? When an inebriated woman who had called to complain about being domestically assaulted ended up in the hospital after the Hartford police responded to her call, was it because she faltered and fell to the ground during her encounter with police, or was it because they slammed her down, as several eyewitnesses alleged? No informed public judgment could be rendered because the police department, citing the exemption, declined to release the investigative files. Even when the attorney general’s office, a higher branch of law enforcement, was called in to review police conduct, it, too, kept its investigative file under wraps. Both the attorney general and town authorities insisted that their privileged knowledge of what had occurred assured them that the police had acted appropriately, but members of the public — the potential victims of police misconduct — had to take them at their word. Or not.

Last week, Gov. Peter Shumlin signed into law a measure that eliminates the exemption, while also preserving the right of law enforcement officials to withhold documents if their disclosure would result in a specific harm. The measure also allows law enforcement to withhold the names of victims and witnesses and to block disclosures that would constitute an “unwarranted invasion of privacy.”

Vermont is hardly breaking new ground here. The elimination of the exemption aligns state law with federal practice and that of 21 states. Although the bill was opposed by Attorney General William Sorrell and a number of law enforcement officials, we think it ultimately will serve them well. If one assumes that police act appropriately in most cases, open access to public records will consistently document that and bolster public confidence in their work. In those instances when police operate unprofessionally, incompetently or maliciously, there will be a better chance they will be held appropriately accountable. And, at long last, the public will be able to judge just how thorough and disinterested are the reviews conducted by the attorney general’s office — the ones that take an inordinately long time before almost always exonerating police officers.

That this change was overdue had been recognized by a number of people, including Vermont Supreme Court Justice John Dooley, who complained that the law enforcement exemption “prevents public oversight of how law enforcement officials do their job, even in instances where there is no reason for secrecy.”

After one of the rulings in which the state Supreme Court declined to compel disclosure of law enforcement records, Allen Gilbert, executive director of ACLU Vermont, said that there was little reason to hope for more openness and accountability until the law was rewritten. “It was pretty clear that the court felt it was up to the Legislature to fashion a system for police accountability,” said Gilbert, whose organization had gone to court in hopes that judicial intervention would provide access. “ ... It’s going to take a strong push from the governor’s office and his insistence that this is important.”

Shumlin did exactly that, and we congratulate him and everybody else who played a role in securing a change that surely will go a long way toward allaying at least this particular anxiety about how governmental authority is exercised.