MONTPELIER—The state’s highest court will soon decide whether internal Rutland City records related to two officers who viewed pornography on their work computers are “personnel” or “public.”
In its second trip to the Vermont Supreme Court, arguments in case brought by the Rutland Herald seeking access to an internal police investigation focused on whether the records were off limits to public review due to a personnel exemption designed to protect privacy rights.
The newspaper’s case has been to the high court once before after the city appealed a 2010 decision by Rutland civil court Judge William Cohen that granted the newspaper and the public access to both the internal review and a criminal investigation involving one of the officers who was initially suspected of viewing child pornography.
The officer under criminal investigation wasn’t charged after a review of the suspected images by the Vermont Internet Crimes Against Children Task Force.
The Supreme Court last year ruled that any records related to the detection of a crime were off limits to the public in accordance with Vermont statute and remanded the case back to Cohen. Cohen held another hearing before ruling that city records related to the department’s internal review of the two officers are public.
In his second appeal to the high court, former Rutland city attorney Andrew Costello, who continues to represent the city in the case, argued that the internal review and eventual discipline of the two officers should remain confidential to protect the privacy rights of employees all over the state.
“If you endorse the (Cohen’s) ruling the ramifications would be very serious for all employees because a disciplinary action of any sort would carry no expectation of privacy,” he said.
But Burlington attorney Robert Hemley, who represented the Herald, argued that keeping the records confidential using the personnel exemption would carry ramifications of its own by keeping internal records intended to be public off limits.
When asked how judges were supposed to decide what disciplinary procedures and internal information should be made public and what should be kept secret, Hemley said that needed to be decided on a case by case basis.
“That’s what judges are charged to do,” he said.
In cases involving police officers, Hemley said the public’s interest in their conduct is higher and should be regarded differently by court’s weighing access to records.
When asked by Justice Brian Burgess why the records dealing with police who viewed pornography — which he noted is legal — should factor into a judge’s decision regarding access to records more than an officer who is disciplined for misuse of a computer for something like online shopping, Hemley said the court should examine the issue through the eyes of the public served by the officers.
“It’s because they weren’t simply looking for hats, they were looking at porn,” Hemley said. “For cops whose duties include enforcement in cases involving sex abuse ... officers satisfying themselves while looking at porn at work is clearly different than if they were shopping or doing something else more benign.”
The high court is also weighing whether it should redact the names of the officers who looked at the pornography.
While Cohen in a previous decision said he believed that naming the officers was necessary to prevent suspicion from falling on other members of the department, in his most recent ruling the Rutland judge left the question of removing the officer’s names as a matter for the high court to decide “if necessary.”
Costello said keeping the names confidential was the only way to ensure that the officer investigated for suspected child pornography could continue performing his job.
“If this officer is named, he will be known as the officer who looked at child pornography,” Costello said. “Even though that suspicion was not upheld by the investigation it’s reasonable to believe that that will be the view held by many.”
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