In an important ruling for government transparency and accountability, the Vermont Supreme Court said Friday that the public has the right to see internal investigations of police officers suspected of misconduct. Shame and embarrassment aren't grounds to deny the public access to records that can shine a light on oversight and management of public employees, the court said.

Scales of justice -- not copyrightedThe case involves Rutland city police officers and public works employees who in 2010 were believed to be viewing pornography at work and were the target of a city investigation.

The Rutland Herald submitted a request to the city for records about the investigation and about any disciplinary action taken against the officers.

The city denied the newspaper's request, claiming that the records could be withheld from public view under both the police records [1 VSA 317 (c)(5)] exemption as well as the personal records [1 VSA 317 (c)(7)] exemption to the state's public records act.

The city claimed that the police officers involved would be embarrassed and shamed if the public were to know that they were investigated and disciplined for downloading and viewing porn at work. The Rutland Herald, on the other hand, maintained that public employees have no right of privacy in on-the-job misconduct, because Vermonters have a right to know what public employees are doing while on the job at the public’s expense.

The Herald won at the trial level. The city appealed, claiming that such records were absolutely off-limits to public scrutiny because of the police records exemption then in place. The Supreme Court sided with the Herald that "purely disciplinary investigations" – that is, records “that do not deal with the detection and investigation of crime" -- may not be withheld as police records.

The Supreme Court then ordered the trial court to examine each record to see if any of them dealt with the “detection and investigation of crime” and could be withheld, or if they dealt with “disciplinary investigations” and must be released.

The trial court did so, and ordered the records released. But the city appealed again, claiming that releasing records about which police officers were investigated and disciplined for viewing porn at work would create a "substantial invasion of privacy and have a profound impact on the lives of the individuals involved."

But, as before, the city lost its bid to hide police discipline. In the decision released Friday, the city was ordered to release all of the records immediately.

Viewing porn at work, the court said, does not involve matters of personal privacy entitled to protection under Vermont's personal records exemption. That exemption was designed to protect information collected by the government about private citizens in the course of government business, such as tax records, driver's license information, and medical records. It does not shield cops' decisions to engage in "a personal frolic entirely unrelated to the officers' jobs except for the coincidence that it occurred on public time with public property."

The court also held that the public has a strong interest in seeing whether and how government agencies respond to complaints of employee impropriety. It explained that "information about the investigations, including the penalties imposed, [are] vital to the public's ability to scrutinize both the employees' behavior and the management's response to that behavior."

The decision is a major win for making the workings of government more transparent, particularly regarding law enforcement. What happens during the discharge of a public servant's duties is subject to public scrutiny -- otherwise, the public has no idea what is being done in its name.

It is vital to a democracy that the public know how government agencies, and especially the police, investigate claims of misconduct. There is no independent police oversight mechanism in Vermont, and, unlike most other states, Vermont does not license police. When something bad happens, Vermonters are left to either sue the police officer who injured them, or complain to the very police department responsible for the wrongdoing.

At the very least, this decision ensures that police will no longer be permitted to treat complaints about misconduct lightly. Public complaints about officers can’t be viewed only as an in-house concern that the public need not – or must not -- know about.


Links to legal documents in case: