Vermont law enforcement has taken yet another step down the road of closing off police investigation records. This time, though, law enforcement has taken its fight to within the courts, claiming that information needed by a lawyer in a lawsuit can't be subpoenaed.
The claim of privilege – reported first in the Valley News -- has come in the case of the Taser death this summer of Macadam Mason. The suit, filed this summer, claims a state police trooper used excessive force, wasn’t trained properly, and disregarded guidelines governing the use of Tasers. Mason’s death – which an autopsy report said was the result of the Taser shot – shouldn’t have occurred, according to the suit.
The state has fought the release of any information in the case. Numerous public records requests by news agencies have been denied on the grounds that an investigation of the trooper’s actions is underway and release of the records would compromise the investigation.
In denying records requests from news agencies, the state is hiding behind the so-called “c5” exemption in the public records law. The exemption has been roundly criticized by open government advocates, who say it is overbroad. Only information that, if released, could compromise the investigation, put a victim at risk, or cause other harm should be kept secret, they say. It’s how federal law works, as well as disclosure laws in 21 other states.
But earlier this year, the Vermont Supreme Court ruled that the c5 exemption provides total and perpetual secrecy for any criminal investigation information. At least one justice noted the exemption was overbroad and that the legislature may want to review it. Such review is expected in the coming legislative session. For now, though, police have invoked the exemption numerous times – including in the Mason case – to block the release of information to news reporters and others.
There are different rules for divulging information to lawyers in a court proceeding. Lawyers involved in lawsuits on behalf of clients can – through a court process called “discovery” – obtain information that may not be available to the public under the public records act. The reason is that the information may be important in understanding and explaining the client’s claims. The information can be sealed throughout the litigation – meaning others can’t see it -- unless the court orders the information unsealed.
In rebuffing attorney Thomas Costello’s request for police investigation reports in the lawsuit, the state Attorney General’s Office says it is investigating whether the trooper who Tased Mason, with death resulting, committed any crime. As such, the attorney general claims, the action is a criminal investigation and, hence, Costello can’t see the reports. However, exemptions in the public records act do not automatically compute to nondisclosure of documents to an attorney in the court’s discovery process.
It will be up to the judge in the case to sort out the plaintiff’s demands for the records and the defendant’s refusal to hand them over.