There is a high wall protecting the secrecy of police investigations, and it can be breached in only very limited circumstances, argued a lawyer for the Vermont Attorney General's Office in Superior Court in Montpelier on Monday.
But if Vermonters can't get information about how police are conducting investigations, how can citizens make sure investigations are on the up-and-up and constitutional violations aren't occurring?
That was the gist of the ACLU-VT's response to the state's motion for summary judgment in a case over law enforcement use of cell phone data. Since January we've been seeking records that might show whether police are tracking individuals' whereabouts through location data generated by cell phones.
The AG's office twice denied administrative requests for the records, prompting our lawsuit.
While the state continues to insist records on cell phone tracking data are secret, the superior court has refused to allow a list of the records (a so-called "Vaughn index") to be sealed, granting the public the first acknowledgment that state law enforcement officers are tracking people's location via their cell phones without first obtaining a warrant. Instead, an arcane investigation tool called an "inquest" is utilized by prosecutors to issue a subpoena. An inquest is secret; the public can't find out what happens in the proceeding. No jury is present, as at a grand jury proceeding.
Judge Geoffrey Crawford made no ruling on Monday. Instead, he listened to arguments from each side, and took the matter under consideration.
He noted that recently there have been a series of public records requests in the news, and that it appeared the administrative branch of government -- not the courts -- was deciding where the balance between public and confidential records lay.
He also suggested that the ACLU had already won the case when he ordered a Vaughn index of cell phone data requests be made public. "What more do you want to know?" he asked.
What the ACLU still wants to know is how the determination is made that investigators may access phone records that are otherwise private. There is no guarantee of consistency -- no standard for judicial review -- governing the granting of access.
Court documents related to ACLU v. Office of the Attorney General are online in the legal docket section of our Web site: http://acluvt.org/legal/docket/#aclu