The ACLU-VT is suing the town of Hartford for denying an investigative journalist access to public records involving the high-profile arrest of an African-American man in his own residence.
Anne Galloway, editor of the Vermont news Web site VtDigger.org, requested Hartford police records concerning the arrest of Wayne Burwell. The Hartford police refused to produce the records, claiming that they were exempt from Vermont's public records act.
When Galloway appealed the police department’s denial to Hartford Town Manager Hunter Rieseberg, he also denied her access to the records, claiming that because the Hartford police have asked the Vermont State Police to investigate the arrest, an exemption to the public records act permits withholding of the records.
“The problem is, the exception that the town is citing specifically says that ‘records reflecting the initial arrest of a person’ are public and not exempt,” explained ACLU of Vermont Executive Director Allen Gilbert. “Hartford officials appear to have read only part of the statute; they seem not to have read to the end, where it says that arrest records cannot be withheld.”
Section (c)(5) of the public records act (1 VSA §317) states that “records dealing with the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency” are exempt from disclosure, “provided, however, records relating to management and direction of a law enforcement agency and records reflecting the initial arrest of a person and the charge shall be public.”
To make matters worse, the town failed to follow the public records act when it denied Galloway’s request. “The act states that if a public agency withholds records from a request, the agency is required to list the records that it is withholding. Hartford didn’t do that. State and local governments can’t just hide things from the public,” said Gilbert.
Procedures for carrying out the public records act are in 1 VSA §318. Section (a)(2) states that “if the custodian considers the record to be exempt from inspection under the provisions of this subchapter, the custodian shall so certify in writing. Such certification shall identify the records withheld and the basis for the denial.”
ACLU of Vermont Staff Attorney Dan Barrett, who is representing Galloway, said that the Vermont Supreme Court “ruled about 20 years ago in a case called Caledonian Record Publishing Co. v. Walton that citizens are able to use the public records act to supervise the police and see who the police are handcuffing and dragging out of their own homes.”
The ACLU has received many complaints in recent years from journalists and others who have been stymied by state and local government agencies. “As the economy has slowed and media outlets have been less and less able to pay for court challenges to public records denials, we’ve seen public agencies become more brazen in the reasons they come up with to deny people access to public records,” Gilbert said.
The lawsuit asks that the Vermont Superior Court’s Windsor civil division rule that the town’s failure to list the records it is withholding violates the public records act, force the town to turn over the records, and pay for Galloway’s costs and fees in bringing suit.
A copy of the complaint can be found at the ACLU of Vermont’s Web site at http://acluvt.org/news/hartford_pd_records.pdf