• High court grants access to Rutland police porn investigation
     | October 12,2013

    RUTLAND — The Vermont Supreme Court on Friday upheld a ruling in a case brought by the Rutland Herald for public access to internal documents related to police officers who viewed pornography at work in the Rutland City Police Department.

    Three years after the newspaper’s initial request for the records that was denied by the city, the high court’s five justices 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.

    “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 emerged in the wake of a criminal investigation of former city police Sgt. David Schauwecker, who was fired from the department in 2010.

    Vermont State Police investigators said they couldn’t prove the pornographic images they found on Schauwecker’s work computers constituted child pornography. But the former officer was eventually charged with two misdemeanors.

    He accepted a plea deal and pleaded no contest to a charge of neglect of duty for removing a pornographic video from an evidence locker and viewing it for his personal use.

    But it quickly came to light that Schauwecker wasn’t the only officer 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. An investigation of that officer ended with state police deciding they lacked sufficient evidence to bring a charge.

    The Herald filed requests for internal and criminal investigations regarding the other officers. The city denied those requests on the grounds that the records were exempt under the state’s public records law because they dealt with the detection and investigation of a crime and personal employee issues.

    The identities of the officers who viewed pornography on work computers and who were disciplined for their conduct have remained off limits to the public for three years as the newspaper and the city fought a series of legal battles that were twice brought before the state’s high court.

    The identities of the officers, the details of the internal investigations brought against them and the discipline they received are expected to be released today.

    Former city attorney Andrew Costello, whom the city has retained to handle the case, said Friday he would turn over about 700 pages of documents related to the internal investigations to the Herald today.

    “It’s been a long process, but we respect the court’s decision and obviously will abide by it,” Costello said.

    Rutland Police Chief James Baker, who was first hired as interim police chief in Rutland in January 2012, said Friday he had no argument with the high court’s opinion.

    “It’s my opinion that transparency in a police department is crucial to maintaining trust with the community,” Baker said. “We’ll follow the decision because it’s now the law of the land.”

    During the case, Costello argued that the privacy of the officers involved would be violated and that the precedent could threaten the privacy rights of public employees all over the state.

    “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 in the Supreme Court’s decision the justices didn’t contemplate the range of minor workplace infractions that Costello argued could become public fodder if the internal files were released.

    Instead, the justices zeroed in on the two police officers in the case and determined that their privacy interests were easily trumped by the public’s interest in the functions of the department.

    “Certainly one cannot reasonably expect a high level of privacy in viewing and sending pornography on work computers while on duty at a public law enforcement agency,” Burgess wrote.

    Matthew Byrne, a Burlington attorney who represented the Herald along with Robert Hemley, said the high court’s ruling was in keeping with the state’s tradition of open government.

    “It reaffirms the long-standing preference in Vermont that documents involving government operations should be available to the public,” he said.

    R. John Mitchell, publisher of both the Rutland Herald and The 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.”



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