Rutland Herald v. City of Rutland

Rutland Herald v. City of Rutland, No. 221-3-10 Rdcv (Cohen, J., Sept. 3, 2010)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION
Rutland Unit Docket No. 221-3-10 Rdcv

RUTLAND HERALD,
Plaintiff

v.

CITY OF RUTLAND,
Defendant

DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT,
FILED MAY 3, 2010, and AFSCME COUNCIL 93, LOCAL 1201’s
MOTION TO INTERVENE AS DEFENDANT, FILED MARCH 23, 2010

The Rutland Herald seeks the release of certain documents relating to disciplinary

actions and investigations by the Rutland Police Department and the City of Rutland

Department of Public Works regarding employee use of agency computers to view

pornography. The City of Rutland argues that although the documents are public records,

they are exempt from public inspection under 1 V.S.A. § 317(c)(5) (records maintained

during the course of disciplinary investigations) and § 317(c)(7) (personal documents

relating to an individual).

The Rutland Herald has filed a motion for summary judgment. The City of

Rutland has filed unredacted copies of the documents with the Court. The City has also

submitted the documents with proposed redactions. The Court has conducted an in

camera review.

AFSCME Council 93, Local 1201 seeks to intervene on behalf of the employees

of the Police Department and the Department of Public Works. The Union represents

these employees as their exclusive bargaining agent with the City of Rutland.
 The Rutland Herald is represented by Robert B. Hemley, Esq. and Matthew B.

Byrne, Esq. The City of Rutland is represented by City Attorney Andrew Costello.

AFSCME Council 93, Local 1201 is represented by Michael D. Blair, Esq.

Summary Judgment Standard

Summary judgment is appropriate where there is no genuine issue of material fact

and the party is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3). In response to

an appropriate motion, judgment must be rendered "if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, . . . show

that there is no genuine issue as to any material fact and that any party is entitled to

judgment as a matter of law." V.R.C.P. 56(c)(3). In determining whether a genuine issue

of material fact exists, the court accepts as true allegations made in opposition to the

motion for summary judgment, provided they are supported by evidentiary material.

Robertson v. Mylan Labs, Inc., 2004 VT 15, ¶ 15, 176 Vt. 356. The nonmoving party

then receives the benefit of all reasonable doubts and inferences arising from those facts.

Woolaver v. State, 2003 VT 71, ¶ 2, 175 Vt. 397.

BACKGROUND

The Herald Association, Inc., d/b/a Rutland Herald, is a newspaper in Rutland,

Vermont. The Rutland Herald has been investigating the potential that officers of the

Rutland City Police Department have been viewing pornography, including possible

child pornography, on department computers.

As part of its investigation the Rutland Herald previously requested access to a

search warrant executed on the Rutland City Police Department in September 2009. In

February 2010, the Vermont Superior Court, Rutland Unit, Criminal Division issued a

2
series of orders addressing the unsealing of the search warrant and related documents. In

its Order of February 4, 2010, the court denied the State’s effort to keep the search

warrant sealed and ordered the warrant unsealed on February 9, unless appeal was taken.

In its Order of February 10, the court rejected arguments made by the target of the

warrant, who was involved in a child pornography investigation, that the privacy of the

target constituted the “exceptional circumstances” needed to seal a returned search

warrant. On February 12, the court denied the target’s motion for reconsideration.

The affidavit filed to obtain the warrant revealed that public property—police

department computers—had been used to view pornography and that public property had

been used to store pornography. The police officer in question was placed on

administrative leave on February 5, 2010. Through a public records request, the Rutland

Herald was able to determine that there was only one officer, Sergeant David

Schauwecker, on paid administrative leave for that time period. Thus, the Rutland Herald

determined that Sergeant David Schauwecker was the target of the investigation into

child pornography. The search warrant and related documents are publicly available from

the Vermont Superior Court, Rutland Unit, Criminal Division.

Almost immediately after the unsealing of the documents, the Rutland Herald

published articles concerning the investigation and the identity of the target. The Mayor

of Rutland, Christopher Louras, and the Board of Alderman then made public statements

concerning the investigation. The Mayor agreed that a city employee who deliberately

accessed obscene materials on a city computer should be fired. At a public meeting

attended by city residents, Rutland City officials questioned Rutland Police Chief

Anthony Bossi about why the officer had not been suspended earlier. Chief Bossi stated

3
that he did not have sufficient information to take action.

Later, on April 7, 2010, the City of Rutland’s Board of Civil Authority convened

to conduct a hearing regarding Sgt. David Schauwecker’s employment with the Rutland

Police Department. The Board found, among other things, that Sgt. Schauwecker had

taken personal possession of pornographic materials obtained by the police department as

evidence in pending criminal investigations. On April 19, the Board of Civil Authority

issued its decision, unanimously finding that Sgt. David Schauwecker’s conduct

constituted just cause to terminate him from his employment with the police department.

On February 15, 2010, the Rutland Herald made public records requests to City of

Rutland Mayor Christopher Louras, Rutland City Attorney Andrew Costello, Rutland

City Police Chief Anthony Bossi, and Rutland City Police Captain Scott Tucker.

In the request letters directed at Mayor Christopher Louras and City Attorney

Andrew Costello, the Rutland Herald requested photocopies of the following records:

• All electronic or written communication to and from you or your office
regarding John Doe (Sgt. David Schauwecker) of the Rutland Police
Department, the search warrant related to John Doe and/or any supporting
documents, between the dates of Feb. 1, 2010, and completion of this
request.

• Any electronic or written communication to and from you or your office
relating to City computer policy, abuse of city equipment and/or viewing
pornography, either on city equipment or by city personnel, since 2004.

• Any electronic or written communication to and from you and your office
relating to computer service or repair of Rutland City computers involving
pornography or misuse of equipment since 2004.

In the request letters directed at Police Chief Anthony Bossi and Police Captain

Scott Tucker, the Rutland Herald requested photocopies of the following records:

• All electronic or written communication to and from the Rutland City
Police Department regarding John Doe (Sgt. David Schauwecker) of the

4
 Rutland Police Department, the search warrant related to John Doe and/or
any supporting documents, between the dates of Feb. 1, 2010, and
completion of this request.

• Any documents relating to computer policy, abuse of city equipment
and/or viewing of pornography, either on city equipment or by on-duty
police personnel, since 2004.

• Any documents regarding computer service or repair of Rutland City
Police Department Computers involving pornography or misuse of
equipment since 2004.

On February 24, 2010, City Attorney Andrew Costello responded to the requests

on behalf of himself, Mayor Christopher Louras, Police Chief Anthony Bossi, and Police

Captain Scott Tucker. City Attorney Costello denied access to certain documents. These

documents are described in the City’s Vaughn index1 that was filed in support of its

opposition to the motion for summary judgment. In total, the documents come to 645

pages.

The Vaughn Index describes the documents as follows:

(1) A letter dated July 12, 2004, from Chief Bossi to R.P.D. employee #1,
relating the employee’s status pending completion of an internal affairs
investigation, #04-003, which dealt with an allegation of viewing
pornography while on duty. The City cited 1 V.S.A. § 317(c)(5) and (c)(7) as
its basis for non-disclosure.

(2) A letter dated September 10, 2004, from Chief Bossi to R.P.D. employee #1
relating Chief Bossi’s imposition of discipline on the employee for viewing
pornography while on duty, after the internal affairs investigation for case
#04-003. The City cited 1 V.S.A. § 317(c)(5) and (c)(7) as its basis for non-
disclosure.

(3) The complete record of the internal affairs investigation #04-003, dealing
with the alleged viewing of pornography by R.P.D. employee #1 while on
duty. The City cited 1 V.S.A. § 317(c)(5) and (c)(7) as its basis for non-
disclosure.

1
The term “Vaughn index” derirves from Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), which involved
a request for documents under the federal Freedom of Information Act. Kade v. Smith, 2006 VT 44, ¶ 3
fn.3, 180 Vt. 554 (mem.).

5
 (4) A letter dated February 24, 2010, from Chief Bossi to R.P.D. employee #2,
relating Chief Bossi’s imposition of discipline on the employee for the
viewing of pornography while on duty, after the internal affairs investigation
for case #10-02. The City cited 1 V.S.A. § 317(c)(5) and (c)(7) as its basis for
non-disclosure.

(5) The complete record of the internal affairs investigation #10-02, dealing with
alleged viewing of pornography by R.P.D. employee #2 while on duty. The
City cited 1 V.S.A. § 317(c)(5) and (c)(7) as its basis for non-disclosure.

(6) A letter dated March 25, 2010, from Chief Bossi to Sgt. David Schauwecker
informing Sgt. Schauwecker of Chief Bossi’s recommendation to the Board
of Civil Authority regarding his termination. The City cited 1 V.S.A.
§ 317(c)(5) and (c)(7) as its basis for non-disclosure.

(7) A letter dated March 23, 2010, from Chief Bossi to Sgt. David Schauwecker
informing Sgt. Schauwecker of an upcoming meeting regarding his
employment. The City cited 1 V.S.A. § 317(c)(5) and (c)(7) as its basis for
non-disclosure.

(8) The complete record of the internal affairs investigation #10-03, dealing with
alleged viewing of pornography by Sgt. David Schauwecker while on duty.
The City cited 1 V.S.A. § 317(c)(5) and (c)(7) as its basis for non-disclosure.

(9) A letter dated January 17, 2007, from Department of Public Works
Commisioner Paul Clifford to D.P.W. employee #1, setting forth the
Commissioner’s imposition of discipline on employee for employee’s
violation of the City internet usage policy. The City cited 1 V.S.A.
§ 317(c)(7) as its basis for non-disclosure.

(10) A letter dated January 17, 2007, from Department of Public Works
Commisioner Paul Clifford to D.P.W. employee #2 setting forth the
Commissioner’s imposition of discipline on employee for employee’s
violation of the City internet usage policy. The City cited 1 V.S.A.
§ 317(c)(7) as its basis for non-disclosure.

The City submitted unredacted copies of the documents in the event that the Court

chose to conduct an in camera review. On June 17, 2010, the Court issued an entry order

in which it stated that it would conduct an in camera review of the documents. A hearing

was held on July 16, regarding the issue of intervention. The parties also made arguments

regarding the motion for summary judgment, access to the documents, and redactions. At

6
the close of the hearing, the Court ruled that, generally, the public interest in disclosure of

the documents outweighed any individual’s privacy interest. The Court stated that the

issue of whether redactions were appropriate was still disputed. The Court also stated that

if the identities of the individuals in the documents were not redacted, then the union,

AFSCME Council 93, Local #1201, would be allowed to intervene.

The Court issued an entry order on July 26, regarding proposed redactions. It

ordered the City to submit a separate document detailing the reasons for each of its

redactions.

On August 2, the City submitted redacted copes of the documents, numbered 1

through 645, along with a list of the reasons for each redaction. These documents

included redacted copies of transcribed interviews and files taken from a filed CD. These

documents had not previously been submitted in unredacted form. Therefore, the Court

ordered the City to file unredacted copies of all 645 documents.

The Court also invited the Rutland Herald to state its position regarding the

disclosure of numerous images from websites and emails that are included in the

documents. The Rutland Herald states that it wishes to review all images in unredacted

form with the help of a law enforcement expert in order to determine if any of the images

should have constituted cause for a criminal investigation.

The City has submitted all 645 documents in unredacted form. The Court has

taken the issue of redactions under advisement in order to review the documents to

determine which redactions, if any, are necessary.

7
 DISCUSSION

I. Motion for Summary Judgment

The policy of the Vermont Public Records Act is to provide for free and open

examination of records consistent with Chapter I, Article 6 of the Vermont Constitution,

which sets forth “[t]hat all power being originally inherent in and co[n]sequently derived

from the people, therefore, all officers of government, whether legislative or executive,

are their trustees and servants; and at all times, in a legal way, accountable to them.” Vt.

Const. ch. I, art. 6; 1 V.S.A. § 315. In enacting the Public Records Act, the Legislature

recognized that “[o]fficers of government are trustees and servants of the people and it is

in the public interest to enable any person to review and criticize their decisions even

though such examination may cause inconvenience or embarrassment.” 1 V.S.A. § 315.

The Vermont Supreme Court has stated that the Public Records Act is to be

“construed liberally,” implementing “the policy that the public interest clearly favors the

right of access to public documents and public records.” Trombley v. Bellows Falls Union

H.S., 160 Vt. 101, 106-07 (1993) (citing 1 V.S.A. § 315). It has also acknowledged,

however, that the “public’s interest in overseeing the decisions of its governmental

officials must be balanced against the people’s right to privacy in their personal and

economic pursuits.” Norman v. Vermont Office of Court Administrator, 2004 VT 13, ¶ 4,

176 Vt. 593 (mem.) (citing 1 V.S.A. § 315; Trombley, 160 Vt. at 109-10).

Under the Act, “public agency” means “any agency, board, committee,

department, branch, instrumentality, commission, or authority of any political subdivision

of the state.” 1 V.S.A. § 317(a). Thus, the definition includes the Rutland City Police

Department and the Rutland City Department of Public Works.

8
 A “public record” or “public document” means “any written or recorded

information, regardless of physical form or characteristics, which is produced or acquired

in the course of public agency business.” 1 V.S.A. § 317(b). Therefore, the letters and

internal affairs investigation records, as well as the submitted CD, are “public records.”

The City of Rutland argues that the documents are exempt from public inspection

under 1 V.S.A. § 317(c)(5) and (c)(7). The general rule is that exceptions to the Public

Records Act “must be construed narrowly to implement the strong policy in favor of

disclosure.” Norman, 2004 VT 13, ¶ 4; see also Trombley, 160 Vt. at 107 (exceptions

should be construed strictly against the custodians of the records and any doubts should

be resolved in favor of disclosure). In a dispute over access, the burden is on the agency

to sustain its action. Trombley, 160 Vt. at 107 (citing 1 V.S.A. § 319(a)). In relying on an

exception to disclosure, the agency “cannot discharge this burden by conclusory claims

or pleadings; it must make the specific factual records necessary to support the exemption

claim.” Id. (internal quotations omitted).

The City argues that the public records are exempt from public disclosure under 1

V.S.A. § 317(c)(5) and (c)(7). Subsection (c)(5) exempts from public disclosure those

public records “maintained on any individual or compiled in the course of a . . .

disciplinary investigation by any police or professional licensing agency; provided,

however, records relating to management and direction of a law enforcement agency . . .

shall be public.” Construed narrowly, however, the exception appears to have a temporal

limitation—“those [files] maintained on any individual or compiled in the course of a . . .

disciplinary investigation[.]” 1 V.S.A. § 317(c)(5). That is, the exception applies only

during the “course of” an investigation, not when investigations have been completed, as

9
is the case here.

Furthermore, the letters and internal affairs investigation records relate directly to

the management of the police department. See 1 V.S.A. § 317(c)(5). These records

demonstrate how the police department investigates its own employees—officials who

are entrusted by the people to investigate crimes and are given the power to arrest. The

people of Vermont have the right to review the decisions of those public officials in

charge of the police department, even though such examination may cause inconvenience

or embarrassment. 1 V.S.A. § 315. Review of these records allows the people to

determine if the police department is properly managed; whether the department follows

its own internal affairs investigation procedure and whether the police department

properly decides whether or not to conduct criminal investigations of its own employees.

Therefore, these public records relate to management of the police department and they

are not exempted from disclosure under § 317(c)(5).

Section 317(c)(7) exempts from public disclosure those public records that are

“personal documents relating to an individual, including information in any files

maintained to hire, evaluate, promote or discipline any employee of a public agency,

information in any files relating to personal finances, medical or psychological facts

concerning any individual or corporation.”

The term “personal documents” is vague and potentially limitless. Kade v. Smith,

2006 VT 44, ¶ 8, 180 Vt. 554 (mem.) (citing Trombley, 160 Vt. at 110). Thus, consistent

with the Act’s underlying policy, this exception must be narrowly construed “to apply

only when the privacy of the individual is involved.” Kade, 2006 VT 44, ¶ 8 (quoting

Trombley, 160 Vt. at 110). Therefore, the exception applies only to those documents that

10
reveal “intimate details of a person’s life, including any information that might subject

the person to embarrassment, harassment, disgrace, or loss of employment or friends.”

Kade, 2006 VT 44, ¶ 8 (quoting Trombley, 160 Vt. at 110).

Whether public records relating to disciplinary actions and performance

evaluations contain “personal” information within this exception is a “fact-specific

determination.” Norman, 2004 VT 13, ¶ 9. The Supreme Court has acknowledged,

however, that there may be instances where information in disciplinary records may be

“highly offensive” and therefore properly withheld. See Id. (citing cases from other states

addressing the personal and potentially embarrassing nature of employment disciplinary

records). Notwithstanding that acknowledgment, the Court has also implied that there is a

distinction between general performance evaluations and disciplinary actions dealing

with specific instances of misconduct. For example, in Kade v. Smith, 2006 VT 44, ¶ 1,

the requestor sought performance evaluations of the superintendent of a state correctional

facility. The trial court failed to conduct an in camera review before finding the personal-

documents exception applied. Id. at ¶ 5-6. The Supreme Court reversed the trial court’s

decision, stating, “[w]hile it is true, as the trial court noted, that performance evaluations

are not investigative in nature and focus on general performance rather than specific

instances of misconduct, it is nevertheless reasonable to believe that they might shed light

on the quality and extent of the DOC's supervision of Lanman [the superintendent], on its

expectations of superintendents generally, and on the overall level of accountability

within the DOC.” Id. at ¶ 13.

Under the Act, even if the “personal information” does carry a privacy interest,

the individual’s interest in personal privacy must be balanced against “the public interest

11
in disclosure.” Norman, 2004 VT 13, ¶ 8 (quoting Trombley, 160 Vt. at 110). In

balancing the interests in privacy and disclosure, the court “must consider not only the

relevance, if any, of the records to the public interest for which they are sought, but any

other factors that may affect the balance, including: the significance of the public interest

asserted; the nature, gravity, and potential consequences of the invasion of privacy

occasioned by the disclosure; and the availability of alternative sources for the requested

information.” Kade, 2006 VT 44, ¶ 14.

Here, the City first argues that the public should not have access to the

disciplinary letters and internal affairs records at all. Second, if the documents are

released, the City has submitted proposed redactions. These include, but are not limited

to, the names of the employees, their positions, and any other identifying information,

including the dates of the suspensions. The Court will first address public access to the

disciplinary letters and investigation records concerning employees of the Rutland Police

Department. It will then turn to the two disciplinary letters concerning employees of the

Rutland Department of Public Works.

Balancing the interests in privacy and disclosure, the Court first considers the

relevance of the records to the public interest for which they are sought. Kade, 2006 VT

44, ¶ 14. These records are highly relevant to the public interest in determining whether

the police department follows its own internal affairs investigation procedure, and

whether the police department properly decides whether or not to conduct criminal

investigations of its own employees. The records demonstrate how investigations are

commenced and conducted, and how suspensions are handed down.

The significance of this public interest is of the highest degree. See Id. “The

12
public has an interest in learning about the operations of a public agency, the work-

related conduct of public employees, in gaining information to evaluate the expenditure

of public funds, and in having information openly available to them so that they can be

confident in the operation of their government.” City of Baton Rouge/Parish of East

Baton Rouge v. Capital City Press, L.L.C., 4 So.3d 807, 821 (La. Ct. App. 2008) (citing

Fincher v. State, 497 S.E.2d 632, 636 (Ga. Ct. App. 1998)). Employees of the police

department are public officials are who have taken an oath to uphold the law, and who

are entrusted by the people to investigate crimes, handle evidence, and arrest citizens.

Their actions directly affect the deprivation of a person’s freedom. “The public should be

ensured that both the activity of public employees suspected of wrongdoing and the

conduct of those public employees who investigate the suspects is open to public

scrutiny.” City of Baton Rouge/Parish of East Baton Rouge v. Capital City Press, 4 So.3d

at 821 (quoting Fincher, 497 S.E.2d at 636) (internal quotations omitted).

Next, the Court considers the nature, gravity, and potential consequences of the

invasion of privacy occasioned by the disclosure. Kade, 2006 VT 44, ¶ 14. The disputed

public records concern investigations into the viewing of pornography—possibly child

pornography—and the sending of pornography by email by employees of the police

department on public computers while on duty.

Although the gravity and potential consequences of the disclosure are of a high

degree, the Court does not find any legitimate reasonable expectations of privacy on

behalf of any the employees who were investigated. “These investigations were not

related to private facts; the investigations concerned public employees' alleged improper

activities in the workplace.” See City of Baton Rouge/Parish of East Baton Rouge v.

13
Capital City Press, 4 So.3d at 821 (finding disclosure of internal affairs investigation

records proper where police officers were investigated and punished for brutality and

excessive force). Furthermore, “[a]lthough police officers may have a legitimate privacy

interest in certain narrowly circumscribed portions of files concerning their off-duty,

private conduct, they do not enjoy a reasonable expectation of privacy with respect to

records concerning only how they discharge their official duties.” Id. at 821 fn.19; see

also Fincher, 497 S.E.2d at 637 (finding that official of State Board of Pardons & Paroles

of Georgia had no legitimate expectation of privacy as to investigatory report that

addressed his sexual harassment of a co-worker and other misconduct while in the course

of his employment for the state; disclosure of report was proper).

The City argues that public access to the documents and disclosure of the

employees’ identities will reveal “information that might subject the person[s] to

embarrassment, harassment, disgrace, or loss of employment or friends[,]” and that this

outweighs any public interest in disclosure. See Kade, 2006 VT 44, ¶ 8. However, the

“personal documents” exception under § 317(c)(7) must be narrowly construed “to apply

only when the privacy of the individual is involved.” Kade, 2006 VT 44, ¶ 8. It applies

only to those “intimate details of a person’s life.” Id. These employees had little

expectation that their actions or identities would remain private when they viewed and

sent pornography on public computers while on duty as public employees. These were

not “intimate details of a person’s life.” Therefore, there was little, if any, privacy interest

involved.

At the hearing and in its proposed redactions, the City argued that disclosure of

any identifying information will render the redaction of only the employees’ names to be

14
an exercise in futility. Specifically, the City argues that the dates of the employees’

suspensions must be redacted because their disclosure will allow the Rutland Herald to

identify the employees through a subsequent public records request; in the same manner

it identified Sgt. Schauwecker. The Court does not agree.

The public has a significant interest in learning the dates of the suspensions to

review if the police department actually suspended the employees; to review how long

the investigations took; and to review how soon the employees were suspended after the

findings of misconduct. This information is vital in ensuring “that both the activity of

public employees suspected of wrongdoing and the conduct of those public employees

who investigate the suspects is open to public scrutiny.” City of Baton Rouge/Parish of

East Baton Rouge v. Capital City Press, 4 So.3d at 821 (quoting Fincher, 497 S.E.2d at

636).

Furthermore, a failure to disclose the identities of those employees who were

disciplined minimizes the hard work and dedication shown by the vast majority of the

Rutland City Police Department. The redaction of the disciplined employees’ identities

would result in public mistrust of every employee of the police department. “It would be

an incongruous result to shield from the light of public scrutiny the workings and

determinations of a process whose main purpose is to inspire public confidence.” City of

Baton Rouge/Parish of East Baton Rouge v. Capital City Press, 4 So.3d at 821 (citing

Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 787 N.E.2d 602,

608 (Mass. Ct. App. 2003)).

Finally, there are no alternative sources for the requested information. See Kade,

2006 VT 44, ¶ 14. These public records are internal affairs investigations records and

15
disciplinary letters, which contain information that is not otherwise available.

In balancing the interests in privacy and disclosure under the considerations set

forth in Kade, 2006 VT 44, ¶ 14, the Court finds that disclosure heavily outweighs any

privacy interests the police department employees had in their actions and identities. The

manner in which the employees of the police department prosecute their duties is of “a

large and vital public interest that outweighs their desire to remain out of the public eye.”

See Burton v. York County Sherriff’s Dep’t, 594 S.E.2d 888, 895 (S.C. Ct. App. 2004)

(finding disclosure of disciplinary records and suspension records of sheriff’s deputies

was proper where the deputies had been investigated for sexual activity in patrol cars).

The Public Records Act was enacted to provide free and open examination of

records consistent with Chapter I, Article 6 of the Vermont Constitution, which provides

that all officers of government are the people’s servants and they are at all times

accountable to the people. Vt. Const. ch. I, art. 6; 1 V.S.A. § 315. This includes

accountability as to the proper use of public computers by public employees and the

proper internal investigation of employees by the police department for violations of

computer usage policy. Public access to the submitted police department internal

investigation records and disciplinary letters is proper.

While the Court will not redact the public employees’ identities and suspension

dates from the documents, there is certain information in the public records that is

“personal.” The Court will redact any information regarding uninvolved citizens,

confidential complaining witnesses, and family members of the employees. The Court

will also redact all personal information such as any medical information, home

addresses, telephone numbers, social security numbers, drivers’ license numbers,

16
employee identification numbers, dates of birth, and email addresses. The Court will

issue a separate, sealed decision stating its findings for each redaction. Although the

Court has done its best to review the documents, it asks that if any of the ordered

redactions are mistakenly not redacted in the documents, that the parties notify the Court

of the oversight.

The Court will not release the submitted CD because the Court cannot make

redactions to it. However, the information contained on the CD has already been printed

into document form for review. Also, the Rutland Herald is not entitled to disclosure of a

performance evaluation of one of the employees. Although this evaluation contains

information regarding this issue, overall it is a general review of the employee’s job

performance, as opposed to a specific investigation. See Kade, 2006 VT 44, ¶ 13-14.

The Court will also withhold documents numbered 48-53, 114-220, and 264-271

because they contain images of possible child pornography. This step is necessary to

protect the identities of those who are possibly minors and are depicted engaging in

sexual conduct. Furthermore, it is a crime to knowingly possess images that depict

minors engaging in sexual conduct. See 13 V.S.A. § 2827. Therefore, public release of

such images is not proper.

Furthermore, the documents numbered 56-64 will be withheld because they are a

printout of the employee’s computer folders page. This information could potentially

implicate the privacy interests of uninvolved citizens who were under investigation at the

time.

However, the Court will allow the Rutland Herald to conduct a review of the

withheld documents in chambers with its counsel and a law enforcement expert present.

17
Both the City of Rutland and AFSCME Council 93, Local #1201 may have their counsel

present, as well as a law enforcement expert of their own. Documents numbered 48-53,

56-64, 114-220, and 264-271 will not be redacted in any way. The review will be on the

record.

The Court now turns to the two disciplinary letters for the department of public

works employees. The letters were submitted in the response to the Rutland Herald’s

request for “[a]ny electronic or written communication to and from you or your office

relating to City computer policy, abuse of city equipment and/or viewing pornography,

either on city equipment or by city personnel, since 2004.” This was a broad public

records request by the Rutland Herald that was not limited to the viewing of pornography

on city computers.

There are no investigation records accompanying these documents. The

disciplinary letters simply acknowledge that the reason for the suspensions is violation of

the City’s computer usage policy; they do not state the infraction. Therefore, unlike the

police department documents, there is no context to the discipline of these public works

employees. This makes it difficult for the Court to determine the weight of the public

interest in disclosure under Kade. The letters shed no light on the operations of the

department of public works, the work-related conduct of its employees, or the

expenditure of public funds. See City of Baton Rouge/Parish of East Baton Rouge v.

Capital City Press, 4 So.3d at 821.

Nevertheless, there is a public interest in knowing about computer abuse by

public employees using public resources. The Court also finds that these employees had

little, if any, privacy interest in their use of public computers while on duty as public

18
employees. However, without further context, the Court finds that redaction of the

employees’ names and suspension dates is proper. The Court acknowledges that the City

cannot accomplish the redaction of identifying information simply by not disclosing all

investigation records that may exist. Thus, this ruling does not preclude the Rutland

Herald from making more specific, additional public records requests to obtain such files.

Any of the parties, including the intervenor, will have 10 days to file an appeal

with the Supreme Court. If any of the parties file for appeal within the 10 days, the Court

will stay the disclosure of the documents until a decision by the Supreme Court. If the

parties do not appeal within 10 days, then the Court will release the documents with the

above-mentioned redactions. The in-chambers document review of the questionable

images will then be scheduled.

Finally, when the City submitted the unredacted version of the documents, it

accidentally sent blank copies for documents numbered 403-413. The Court has included

the redacted version of the documents in the documents it will disclose. The City shall

file unredacted versions of documents numbered 403-413 with the Court following either

the 10 days if the parties do not appeal, or the Supreme Court’s decision if appeal is

taken.

II. Motion to Intervene

AFSCME Council 93, Local #1201 has filed a motion to intervene on behalf of

the employees of the Rutland Police Department and the Rutland Department of Public

Works. AFSCME Council 93, Local #1201 (the union) is the sole and exclusive

bargaining representative for employees working for the City of Rutland in department of

public works and the police department.

19
 It seeks intervention of right under V.R.C.P. 24(a), but the Court also finds that

intervention is appropriate under V.R.C.P. 24(b)(2), which allows for permissive

intervention. The union argues that disclosure of employee disciplinary records will

negatively impact those individual employees that it represents as well as all bargaining

unit members who work for the City of Rutland. It argues that disclosure will violate the

employees’ right to privacy and confidentiality, which is protected through the Collective

Bargaining Agreement with the City. At the hearing, the Court ruled that if the names of

the employees were not to be redacted, then the union would be allowed to intervene.

Although the Court has found that the privacy interests of the employees are

outweighed by the public’s interest in disclosure of the documents, the union should be

able to intervene to protect any argued privacy interests of the employees. The disposition

of the action may as a practical matter impair or impede the union’s ability to protect the

members it represents.

The Rutland Herald argues that the union should not be allowed to intervene

because it has not filed an answer or complaint in the proceeding. However, the union has

fulfilled the pleading requirement of V.R.C.P. 24(c) by filing a motion to dismiss along

with its motion to intervene. The motion to dismiss sets forth the union’s claim or defense

for which intervention is sought, and demonstrates that its claim or defense and the main

action “have a question of law or fact in common.” V.R.C.P 24(b). Although the City of

Rutland also opposes disclosure, the Court finds it fair to allow the union to represent the

employees as well, regarding their privacy interests.

The Court previously ruled that it would address the union’s motion to dismiss if

the union was allowed to intervene. A motion to dismiss for failure to state a claim upon

20
which relief can be granted should not be granted unless it is beyond doubt that there

exist no facts or circumstances that would entitle the plaintiff to relief; in reviewing the

disposition of a Rule 12(b)(6) motion to dismiss, the Court assumes that all factual

allegations pleaded in the complaint are true, and the Court accepts as true all reasonable

inferences that may be derived from plaintiff's pleadings and assumes that all

contravening assertions in defendant's pleadings are false. Richards v. Town of Norwich,

169 Vt. 44, 48-49 (1999) (citations omitted). For the reasons set forth in the analysis

granting the Rutland Herald’s motion for summary judgment, the union’s motion to

dismiss is denied.

ORDER

(1) The Rutland Herald’s Motion for Summary Judgment, filed May 3, 2010,
is GRANTED.

(2) The Court will redact certain information from the public records and
issue a separate, sealed opinion setting forth the reason for each redaction.

(3) AFSCME Council 93, Local #1201’s Motion to Intervene, filed March 23,
2010, is GRANTED.

(4) AFSCME Council 93, Local #1201’s Motion to Dismiss, filed March 23,
2010, is DENIED.

(5) The Court will release the documents if the parties do not file for appeal
within 10 days. If any of the parties file for appeal within the 10 days, the
Court will stay the disclosure of the documents until a decision by the
Supreme Court. If the parties do not appeal within 10 days, then the Court
will release the documents with the above-referenced redactions.

(6) If the parties do not appeal within 10 days, an in-chambers document
review will be scheduled for the documents numbered 48-53, 56-64, 114-
220, and 264-271. If the parties do appeal within 10 days, the review will
not be scheduled until a decision by the Supreme Court.

(7) The City of Rutland shall file unredacted versions of documents numbered
403-413, either after the 10 days if no appeal is taken, or after the Supreme
Court’s decision if appeal is taken.

21
Dated at Rutland, Vermont this _____ day of ________________, 2010.

____________________
Hon. William Cohen
Superior Court Judge

22