RUTLAND, Vt. – The Vermont Supreme Court has ruled in favor of the public’s right to access to the criminal and internal investigations of two Rutland police officers who viewed pornography on work computers.
More than three years after the Rutland Herald’s initial request for the records was denied by the city, the court’s five justices on Oct. 11 unanimously affirmed a Rutland civil court decision. The lower court had found the public interest in the activities and identities of officers who accessed pornography at work outweighed any privacy rights of those city employees. The city appealed that ruling.
But the high court swept aside the so-called “personal” exemption as an insufficient shield against the public’s interest in the workings and supervisory practices inside the Rutland Police Department.
“There is a significant public interest in knowing how the police department supervises its employees and responds to allegations of misconduct,” Associate Justice Brian Burgess wrote in the court’s nine-page decision. “This is particularly true given the repeated instances of similar misconduct within the police department over a five-year period as well as the apparent scope of the misconduct.”
Information about the viewing of pornography by on-duty officers emerged in the wake of a criminal investigation of a former city police sergeant who was fired from the department in 2010.
While state police said they couldn’t prove that any of the images on the sergeant’s computer were child pornography, it quickly came to light that he was not the only officer who had been investigated and disciplined for using department computers to view pornography during the last decade. In early 2010, police disclosed that two other officers had been disciplined for viewing pornography, including one who was suspected of viewing possible child pornography.
Vermont Attorney General William Sorrell said not every internal review and disciplinary action taken against an employee rises to the level of public scrutiny and he said the public’s access to records needs to be tempered by the individual’s right to privacy.
“Vermont leads the country in privacy rights. We restrict access to credit reports and financial documents,” he said. “A lot of people think the government wants to oppose information seekers but as often as not it’s the result of the Legislature trying to protect personal privacy.”
Allen Gilbert, executive director of the American Civil Liberties Union of Vermont, said he sees the personal exemption from the other side of the balancing beam.
“The personal exemption has long been used wrongly to shield the disclosure of officers whose conduct is being investigated,” he said. “This decision will alter that practice.”
R. John Mitchell, publisher of both the Rutland Herald and the Barre-Montpelier Times Argus, said it was worth the protracted legal battle to better inform Vermonters about the government agencies that serve them.
“This opinion reinforces the public’s right to know how their money is being spent,” he said. “The public has a right to know that the people who work for them are doing what they should be doing.”
The Herald is now working to recover the tens of thousands of dollars in attorneys’ fees spent in the three-year legal battle.