• Victory for openness
    October 15,2013

    The Supreme Court ruling in the case involving the Rutland Herald and the Rutland City Police Department is a significant advance for open government and public accountability.

    The newspaper had sought Police Department documents related to an internal investigation of city police officers who had viewed pornography on city computers. The city refused to comply, arguing that the documents were exempt from disclosure because they involved the “personal records” of police personnel.

    The city said that the police officers’ privacy rights were protected by the personnel records exemption.

    The court did not buy it, deciding unanimously to uphold a lower court ruling declaring that the newspaper ought to have access to the documents. Since the court’s ruling last week, the Herald has examined those documents and written stories about the officers involved, the investigation looking into their transgressions and the disciplinary action taken by the Police Department.

    The whole unsavory saga about pornography and the police is a case study proving the wisdom of the Supreme Court’s ruling in favor of openness. A central finding of the court is that “there is a significant public interest in knowing how the police department supervises its employees and responds to allegations of misconduct.” The court went on to say: “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.”

    Public access to records of internal investigations allows the public to determine if the Police Department has been responsive to allegations of misconduct, the court ruled — in essence, whether the department has taken effective measures to police itself, “the absence of which may result in patterns of inappropriate workplace conduct.”

    The fact that the viewing of pornography persisted over years among several officers showed that the lack of effective oversight had done precisely what the court had suggested — allowed a pattern of misconduct to continue.

    It was only when the public became aware of the scandal that the department’s ineffective discipline came to light and the department was able to crack down on the misconduct. A welcome change in Police Department leadership followed, which is what public accountability is all about.

    The court found that the officers’ privacy rights in the case were virtually nonexistent. “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,” the court wrote. The officers may be embarrassed by disclosure of what the court called their “personal frolic,” but their embarrassment is vastly outweighed by the public’s need to oversee the actions of government personnel.

    The court addressed the question of whether the city might spare the officers embarrassment by releasing the records while withholding the employees’ names. The court found that doing so would cast a shadow of suspicion over the entire department and the majority of officers who are not guilty of misconduct.

    As with most cases in which disclosure of public documents is contested, the court found that there must be a balance between the public interest in openness and the harm to the individual resulting from disclosure. In a case of wrongdoing by public officials, the public has a strong interest both in the wrongdoing and in the conduct of the those investigating the wrongdoing. The court found that the privacy interest of the officers was “much less compelling.”

    Privacy interests pertain to the intimate details of a person’s life — health records, for example. Disclosure that an officer had been looking at pornography may be embarrassing, but it involved a public employee’s behavior using public property, not the intimate details of his life.

    In recent years state officials in the courts and the Legislature have recognized that the pendulum has swung too far toward secrecy in government. The court’s ruling in this case continues a reversal of the pendulum’s direction, sending it back toward openness and accountability. It is a welcome turnabout.

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