The Vermont Supreme Court has reversed a trial court decision barring a Windham County man from obtaining routine police records. The decision makes clear that police agencies are not exempt from the state's Access to Public Records Act and that they should follow a general standard of disclosing a record unless harm can be shown.

Vermont Supreme Court

In 2008, Stephen Bain requested dispatch records from the Windham County Sheriff’s Office but was told that all of the records were off-limits under an exemption to Vermont’s open records act.  That exemption permits the withholding of “records reflecting the investigation and detection of crime,” Vt. Stat. Ann. tit. 1, § 317(c)(5), and is often referred to as “Exemption 5.”

Bain filed suit to force disclosure, but the superior court sided with the sheriff’s office and held that all records of crime detection – effectively, all police records – are off-limits.

Representing himself, Bain appealed to the Vermont Supreme Court.  The sheriff’s office argued that all police records are exempt from disclosure under the Access to Public Records Act because the business of the police is the detection and investigation of crime.

The ACLU of Vermont submitted an amicus curiae brief in support of Bain, arguing that Exemption 5 only shields those records whose release would pose a concrete harm to law enforcement.

“We argued that Exemption 5 applies only where release of the records would cause a witness to be hurt, or a suspect to flee, or other such harms,” explained Dan Barrett, the ACLU of Vermont’s staff attorney.  “The Access to Public Records Act can’t be used to hide all police records – the public needs to be able to see what police agencies are up to.”

The Supreme Court concurred with that approach.  It returned the case to the trial court with instructions to consider whether the records “contain the type of information that might endanger the state’s position in criminal prosecutions or reveal the names of informants, or other information that might threaten to intimidate potential witnesses.”  The Supreme Court also instructed the trial court to consider “other compelling policy interests” in favor of release.

The decision is a major win for transparency and police accountability. It's a positive sign that the court recognized that withholding police records from the public is the exception and not the rule in Vermont.

A copy of the decision and other court filings in the case may be found at the ACLU of Vermont’s Web site.