Vtdigger v. Dept Public Safety

ermont Superior Court
Filed 10/30/24
Washington Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 24-CV-02289
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

Vermont Journalism Trust v. Vermont Department of Public Safety

Opinion and Order on the Department of Public Safety's Motion to Dismiss

Plaintiff the Vermont Journalism Trust (VTDigger) submitted a public records

request to Defendant the Department of Public Safety (DPS) seeking all audio and video

footage of police interactions with Addison County State's Attorney Eva Vekos on

January 25, 2024, when she is alleged to have arrived at a crime scene inebriated and

police arrested her for driving under the influence. See 1 V.S.A. §§ 315-320 (Public

Records Act or PRA). DPS denied access to all such records initially and on

administrative appeal. VTDigger then filed this suit seeking to enforce the PRA.

DPS has now filed a Vt. R. Civ. P. 12(b)(6) motion to dismiss. DPS claims that the

records sought are entirely exempt from the PRA under exemptions applicable to records

the release of which: (a) would cause the custodian to violate a professional ethics

standard; (b) could be expected to interfere with enforcement proceedings; and (c) would

deprive a person of a fair trial. 1 V.S.A. § 317(c)(8) (ethics interference with

enforcement fair trial). DPS asserts that these exemptions apply

"categorically," and the Court can rule on their applicability as a matter of law under

Rule 12(b)(6).

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I. Procedural Standard

The Vermont Supreme Court disfavors Rule 12(b)(6) motions to dismiss.

“Dismissal under Rule 12(b)(6) is proper only when it is beyond doubt that there exist no

facts or circumstances consistent with the complaint that would entitle Plaintiff to

relief.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 576 (mem.) (citing Union Mut. Fire

Ins. Co. v. Joerg, 2003 VT 27, ¶ 4, 175 Vt. 196, 198)). In considering a motion to dismiss,

the Court “assume[s] that all factual allegations pleaded in the complaint are true,

accept[s] as true all reasonable inferences that may be derived from plaintiff’s pleadings,

and assume[s] that all contravening assertions in defendant’s pleadings are false.”

Mahoney v. Tara, LLC, 2011 VT 3, ¶ 7, 189 Vt. 557, 558–59 (mem.) (internal quotation,

brackets, and ellipses omitted).

A motion to dismiss is often ill suited to PRA cases, at least absent an agreed-upon

record and clear law. In this instance, the only factual record in this case consists of the

allegations of the complaint and its attachments, which document the communications

between VTDigger and DPS. If in denying VTDigger’s records request DPS produced any

sort of index identifying the withheld records, see 1 V.S.A. § 318(b)(2)(A), it is not in the

record. Accordingly, while the general subject matter of the withheld records is clear

enough, what they may show more specifically is unknown.

II. Analysis

The parties are at odds over the proper breadth of the cited exemptions and how

they may apply in this case. Before determining whether VTDigger has stated a claim,

the Court first addresses two preliminary issues: whether the exemptions apply in a

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categorical fashion as asserted by DPS, and whether DPS’s alleged failure to raise the

fair trial exemption administratively waives its ability to rely on that exemption here.

A. Whether the Exemptions Apply Categorically

DPS asserts (without explanation) that the cited exemptions apply “categorically.”

In other words, DPS maintains that if exemptions apply to even part of a record, they

exempt that record in totality. As a result, making redactions and releasing what

remains is unnecessary. The general statutory directive under the PRA, however, is that

a “public agency shall not withhold any record in its entirety on the basis that it contains

some exempt content if the record is otherwise subject to disclosure; instead, the public

agency shall redact the information it considers to be exempt and produce the record

accompanied by an explanation of the basis for denial of the redacted information.” 1

V.S.A. § 318(e). Without more specific authority that an individual exemption

nevertheless applies categorically as contemplated by DPS, redaction and release is the

guiding principle. The Court is aware of no such more specific authority regarding the

violation-of-ethics exemption at 1 V.S.A. § 317(c)(3), DPS has cited none, and there is

nothing on the face of the exemption that suggests that it applies categorically.

The exemptions related to records “dealing with the detection and investigation of

crime” at 1 V.S.A. § 317(c)(5) are a slightly different matter. The Vermont Supreme

Court has interpreted Exemption (c)(5) to be categorical and not subject to redactions.

See Rutland Herald v. Vermont State Police, 2012 VT 24, ¶ 24, 191 Vt. 357, 370 (“The

statute is broadly worded and it provides a categorical exemption for such records

irrespective of their specific content.”); Id., 2012 VT 24, ¶ 25, 191 Vt. at 371 (“Because §

317(c)(5) provides a record-based, rather than content-based, limitation, we also reject

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the Herald’s argument that the court could release investigatory records but require

redaction of information.”); Id., 2012 VT 24, ¶ 30, 191 Vt. at 372 (“As set forth above, we

do not engage in a content-based analysis of these records once they have been

determined to be ‘records dealing with the detection and investigation of crime.’ Such

records are wholly exempt from public access.”).

At the time of the Rutland Herald decision, 1 V.S.A. § 317(c)(5) exempted from

public access the following:

(5) records dealing with the detection and investigation of crime, including
those maintained on any individual or compiled in the course of a criminal
or disciplinary investigation by any police or professional licensing agency;
provided, however, that records relating to management and direction of a
law enforcement agency; records reflecting the initial arrest of a person,
including any ticket, citation, or complaint issued for a traffic violation, as
that term is defined in 23 V.S.A. § 2302; and records reflecting the charge of
a person shall be public.

If the record dealt with such material, it was exempt regardless that it might also

contain information that was not exempt (but for the listed exceptions).

In 2013, though, Exemption (c)(5) was substantially amended. It now reads as

follows:

(5)(A) Records dealing with the detection and investigation of crime, but
only to the extent that the production of such records:
(i) could reasonably be expected to interfere with enforcement
proceedings;
(ii) would deprive a person of a right to a fair trial or an impartial
adjudication;
(iii) could reasonably be expected to constitute an unwarranted invasion
of personal privacy;
(iv) could reasonably be expected to disclose the identity of a confidential
source, including a state, local, or foreign agency or authority or any
private institution that furnished information on a confidential basis,
and, in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation or by an
agency conducting a lawful national security intelligence investigation,
information furnished by a confidential source;
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(v) would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecution if such disclosure could
reasonably be expected to risk circumvention of the law;
(vi) could reasonably be expected to endanger the life or physical safety
of any individual.

(B) Notwithstanding subdivision (A) of this subdivision (5), records relating
to management and direction of a law enforcement agency; records
reflecting the initial arrest of a person, including any ticket, citation, or
complaint issued for a traffic violation, as that term is defined in 23 V.S.A. §
2302; and records reflecting the charge of a person shall be public.

(C) It is the intent of the General Assembly that in construing subdivision
(A) of this subdivision (5), the courts of this State will be guided by the
construction of similar terms contained in 5 U.S.C. § 552(b)(7) (Freedom of
Information Act) by the courts of the United States.

(D) It is the intent of the General Assembly that, consistent with the
manner in which courts have interpreted subdivision (A) of this subdivision
(5), a public agency shall not reveal information that could be used to
facilitate the commission of a crime or the identity of a private individual
who is a witness to or victim of a crime, unless withholding the identity or
information would conceal government wrongdoing. A record shall not be
withheld in its entirety because it contains identities or information that
have been redacted pursuant to this subdivision.

1 V.S.A. § 317(c)(5) (emphasis added).

By its terms, then, the exemption now applies “only to the extent that the

production of such records” otherwise would contain the material more specifically

described in 1 V.S.A. § 317(c)(5)(A)(i)–(vi). “To the extent” requires some kind of content-

based examination of the record. Moreover, to whatever extent Subsection (c)(5)(A)

counsels in favor of nondisclosure, if Subsection (c)(5)(B) applies, disclosure prevails.

Such a construction of the plain language is also supported the “Act Summary”

that accompanied the amendments. Act summaries are not determinative of legislative

intent, and they cannot be relied upon to contradict the clear language of a statute, but

they “may be helpful in deducing legislative intent where the plain language of the
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statute is unclear.” Doncaster v. Hane, 2020 VT 22, ¶ 22, 212 Vt. 37, 45. The 2013

amendment at issue here, 2013, No. 70, is not unclear, but the Act Summary is fully

consistent with the Court’s analysis of language set out above. It provides:

This act adopts a standard nearly identical to the federal Freedom of
Information Act (FOIA) standard for purposes of determining when records
dealing with the detection and investigation of crime are exempt from
disclosure under the Vermont Public Records Act (PRA). Under prior law,
records dealing with the detection and investigation of crime were
categorically and permanently exempt from disclosure under the PRA. The
act replaces that categorical exemption with a FOIA-derived balancing test
that only exempts criminal investigation records from disclosure if
production of the records would interfere with enforcement proceedings,
deprive a person of a right to a fair trial, constitute an unwarranted
invasion of personal privacy, disclose the identity of a confidential source,
disclose techniques and procedures for law enforcement investigations or
prosecutions, or endanger the life or physical safety of any individual.

Act Summary, 2013, No. 70 (emphasis added), available at

https://legislature.vermont.gov/Documents/2014/Docs/ACTS/ACT070/Act070%20Act%20S

ummary.htm.

Given the amended statutory language, the Court concludes that redaction and

release now is required, if possible—the exemption is no longer categorical per se. The

2013 amendment abrogated the Rutland Herald holding to the contrary.1 While entire

records still may be subject to withholding, DPS must demonstrate that as the particular

record.

1 There is a “generic, categorical” approach that an agency may take under FOIA

Exemption 7(A), the analog to PRA Exemption (c)(5)(A)(1), but even that approach
requires the release of reasonably segregable, non-exempt material. See Department of
Justice Guide to the Freedom of Information Act, Exemption 7(A) at 22 (“[C]ourts have
held that the burden is on agencies to ‘identify either specific documents or functional
categories of information that are exempt from disclosure, and disclos[e] any reasonably
segregable, non-exempt’ portions.”).
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None of the cited exemptions applies in a categorical fashion. Each may properly

be the basis for a redaction, but any non-exempt material must be produced.

B. Preservation in the Administrative Proceeding

VTDigger argues that DPS is limited in this case to whatever exemptions it may

have invoked in the administrative proceeding and any others not so raised have not

been preserved and should be deemed waived. Specifically, VTDigger asserts DPS

should not be able to invoke the exemption concerning Ms. Vekos’ right to a fair trial

under 1 V.S.A. § 317 (c)(5)(A)(ii). This argument requires no protracted analysis.

The only Vermont authority VTDigger cites for this argument is Pratt v. Pallito,

2017 VT 22, 204 Vt. 313. Pratt is not a PRA case. That ruling simply reiterates the

general preservation rule, which ensures that agencies have a fair chance to rule on

issues at the administrative level before confronting them on appeal. That principle has

no applicability here.

Review in Superior Court of the denial of a records request is de novo, and the

Court is specifically charged by statute with determining whether withheld materials are

subject to “any” exemptions. See 1 V.S.A. § 319(a) (emphasis added) (“In such a case, the

court shall determine the matter de novo, and may examine the contents of such agency

records in camera to determine whether such records or any part thereof shall be

withheld under any of the exemptions set forth in section 317 of this title, and the burden

of proof shall be on the public agency to sustain its action.”). Under the statute, the

Court is making its own assessment of which exemptions may apply even if the allocation

of burden to the agency means that the Court errs on the side of production.

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Moreover, penalizing an agency in the manner urged by VTDigger would be unfair

considering the time constraints imposed on agencies under the PRA. Agencies must

produce requested record, explain exemptions, and certify if none exists “promptly.” 1

V.S.A. § 318(b), (b)(2), (b). “Promptly” means “immediately” and “not more than three

business days.” 1 V.S.A. § 318(a)(1). Appeals to the head of the agency must be resolved

within 5 business days. 1 V.S.A. § 318(c)(1). In all but the most straightforward

situations, such a timeline values expediency at the expense of thoughtful reflection.

It is little wonder that agencies may sometimes adjust the exemptions invoked after a

lawsuit has been filed and they have had time to engage in a deeper analysis. The

salutary characteristics of the preservation rule simply make no sense in this context.

FOIA is to the same effect. “Because the FOIA directs district courts to review

agency actions de novo, an agency is not barred from invoking a particular exemption in

litigation merely because that exemption was not raised at the administrative level.”

Department of Justice Guide to the Freedom of Information Act, Litigation

Considerations Part 2 at 62 (and see the cases annotated at 62 n.176).

Against this, VTDigger cites a single out-of-state case to the contrary. It is a New

York state case based on that state’s records act. VTDigger offers no analysis as to why

the statutory regimes are analogous, much less any analysis to the effect that the Court

should find the New York decision persuasive in light of the above authorities.

The preservation rule relied upon by VTDigger does not apply in PRA cases. In

any event, even if it did, it would not benefit VTDigger in this case. At the

administrative level, DPS several times said that part of the reason for denial was

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concern about a fair and impartial trial. Those assertions provided VTDigger with

sufficient notice of DPS’s position on the matter.

C. The Standards of Ethics Exemption, 1 V.S.A. § 317(c)(3)

Exhibits to the complaint contain DPS representations that attorneys from the

Attorney General’s Office (AGO) who are prosecuting the criminal case against Ms.

Vekos advised DPS not to produce any of the requested records because doing so would

cause them, the AGO attorneys, to violate their ethical obligations under Vt. R. Prof. C.

3.6, 3.8. DPS in turn characterizes those ethical obligations as creating a basis for

invoking the exemption at 1 V.S.A. § 317(c)(3). Rule 3.6, subject to exceptions, provides:

“A lawyer who is participating or has participated in the investigation or litigation of a

matter shall not make an extrajudicial statement that the lawyer knows or reasonably

should know will be disseminated by means of public communication and will have a

substantial likelihood of materially prejudicing an adjudicative proceeding in the

matter.” Vt. R. Prof. C. 3.6(a). Rule 3.8 further provides that:

The prosecutor in a criminal case shall: … except for statements that are
necessary to inform the public of the nature and extent of the prosecutor’s
action and that serve a legitimate law enforcement purpose, refrain from
making extrajudicial comments that have a substantial likelihood of
heightening public condemnation of the accused and exercise reasonable
care to prevent investigators, law enforcement personnel, employees or
other persons assisting or associated with the prosecutor in a criminal case
who are in the employment or under the control of the prosecutor from
making an extrajudicial statement that the prosecutor would be prohibited
from making under Rule 3.6 or this rule.

Vt. R. Prof. C. 3.8(f).

By contrast, Exemption 3 extends only to “[r]ecords that, if made public pursuant

to this subchapter, would cause the custodian to violate duly adopted standards of ethics

or conduct for any profession regulated by the State.” The AGO is not the custodian of
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the disputed records; DPS has that responsibility. The AGO and DPS are different

agencies. There is no palpable claim in this case that any disclosure of records required

by the PRA would cause DPS personnel to violate any applicable professional ethics

standard.

DPS also does not explain how the court-ordered release of a public record under

the PRA could possibly be an “extra-judicial statement” made by a prosecutor or

associate of a prosecutor.

Moreover, there are several exceptions to Rule 3.6(a) set forth in Rule 3.6(b).

Among those: “Notwithstanding paragraph (a), a lawyer may state: . . . (2) information

contained in a public record.” Vt. R. Prof. C. 3.6(b)(2). The Official Comments to Rule 3.8

characterize Rule 3.8(f) as a “supplement” to Rule 3.6 and explain that it is “not intended

to restrict the statements which a prosecutor may make which comply with Rule 3.6(b).”

Vt. R. Prof. C. 3.8, Comment [5]. Even if the AGO were the custodian in this case, it is

not clear, at this juncture, that these rules would support the application of the

exemption at 1 V.S.A. § 317(c)(3).

D. The Remaining Exemptions

Otherwise, DPS argues that all the materials deal with the detection and

investigation of crime and either “could reasonably be expected to interfere with

enforcement proceedings” or “would deprive a person of a right to a fair trial or impartial

adjudication.” 1 V.S.A. § 317(c)(5)(A)(i)–(ii). The main problem with this argument in

the procedural posture of this case is that the Court has no way of knowing what is in the

withheld records and DPS has made no content-specific arguments that could support

withholding or release after redactions.

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Moreover, DPS’s arguments necessarily are overbroad. Even if all the withheld

records are properly exempt from production under § 317(c)(5)(A), Subsection (c)(5)(B)

nevertheless provides: “Notwithstanding subdivision (A) of this subdivision (5), . . .

records reflecting the initial arrest of a person . . . shall be public.” It is clear that Ms.

Vekos was arrested on the relevant date. Assuming that the arrest appears in the

requested footage, as DPS appears to concede, at least some of that footage likely would

be accessible as reflecting her initial arrest.

Beyond that, VTDigger’s argument that all footage on the date in question is

accessible as reflecting the initial arrest also appears to be substantially overbroad. Only

three Vermont authorities shed light on the breadth of the “initial arrest” vis-à-vis

detection and investigation for PRA purposes. First, in Caledonian Record Pub. Co. v.

Walton, 154 Vt. 15 (1990), the public records requestor sought copies of criminal

citations. The Court concluded that a citation (similar to an arrest) is what happens as

the “result” of the detection and investigation of crime; it is not part of the detection and

investigation itself. “We concur with the holdings of the Ohio and Texas courts that

arrest records are not records dealing with the investigation and detection of crime, but

rather are the product of such an investigation.” Walton, 154 Vt. at 23. The Walton

Court also said: “Both an arrest and the issuance of a citation involve a finding by a law

enforcement officer that there is probable cause to believe a person has committed a

crime and both involve the commencement of a criminal proceeding based on that

finding.” Id. at 26. The citations were accessible on that basis.

Second, in Bain v. Windham County Sheriff Keith Clark, 2012 VT 14, 191 Vt. 190,

the request was for certain police logs. The Supreme Court could not determine what

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might be in the logs, so it instructed the trial court on remand to determine whether the

logs related to the detection and investigation of crime or something else. Its guidance

for the remand was as follows:

On remand, the court’s evaluation of whether these logs are “records dealing
with the detection and investigation of crime” should be guided by the
purposes underlying the statutory exemption and the factors discussed in
Walton. This includes whether the records at issue contain the type of
information that might “endanger the state’s position in criminal
prosecutions” or “reveal the names of informants,” or other information that
might “threaten to intimidate potential witnesses,” such as “‘speculations of
a suspect’s guilt, officers’ views as to the credibility of witnesses, statements
by informants, . . . or blood and other laboratory tests.’” The parties may
also identify other compelling policy interests.

Bain, 2012 VT 14, ¶ 22, 191 Vt. 190, 201 (citation omitted).

The last case of any significance is Galloway v. Town of Hartford, 2012 VT 61, 192

Vt. 171. There, the Hartford police responded to a house after being told a burglar was

on the second floor. They entered the home, pepper-sprayed a man, handcuffed him, and

promptly learned that he was the homeowner. VTDigger sought all records related to

the incident. The trial court only released records from the period after the police

decision not to charge the innocent homeowner. On appeal, the Supreme Court

(plurality) made a criminal law determination that the events amounted to a de facto

arrest by the police and appears then to have concluded that all records created “as a

result” of the incident should be released as reflecting an initial arrest. The mandate is

as follows: “The superior court judgment is reversed. Under the facts of this case, all

records considered by the trial court that were identified by the police as being generated

as a result of the incident should be considered records reflecting the homeowner’s initial

arrest and are to be disclosed.”

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All these cases predate the 2013 amendment to 1 V.S.A. § 317(c)(5), and none

implies that the Legislature would have expansively intended that the exceptions at

amended Subsection 317(c)(5)(B) might render the Exemptions at Subsection 317(c)(5)(A)

a near nullity. Beyond that, the Court declines to engage in any academic line-drawing

exercise under the standards of Rule 12(b)(6) without the benefit of a Vaughn index or

otherwise knowing what is in the withheld records and specifically how DPS thinks the

exemptions apply to whatever is in those records. See Vaughn v. Rosen, 484 F.2d 820,

827–28 (D.C. Cir. 1973).

Further, the Court notes that Section 317(c)(5)(C) counsels: “It is the intent of the

General Assembly that in construing subdivision (A) of this subdivision (5), the courts of

this State will be guided by the construction of similar terms contained in 5 U.S.C. §

552(b)(7) (Freedom of Information Act [FOIA]) by the courts of the United States.”2 PRA

Exemptions (c)(5)(A)(i), (ii) correspond, respectively, with FOIA Exemptions 7(A), (B).

The Department of Justice Guide to the Freedom of Information Act (the Guide),

available at https://www.justice.gov/oip/doj-guide-freedom-information-act-0, contains a

detailed exposition on federal FOIA case law.

As generally relevant here, the Guide explains the following with regard to the

interference-with-enforcement exemption:

Courts have recognized repeatedly that the change in the language for this
exemption [from “would interfere” to “could reasonably be expected to”]
effectively broadened its protection.

Exemption 7(A) requires a two-step analysis. First, there must be a
“pending or reasonably anticipated” law enforcement proceeding. Second,

2 This provision did not exist before the 2013 amendment and thus is not reflected in the

pre-amendment cases.
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release of the information must be reasonably expected to cause some
articulable harm to that proceeding.

The Guide, Exemption 7(A) at 1–2, 12–14 (footnotes omitted).

Regarding FOIA Exemption 7(B), the Guide suggests a similar two-step analysis

to determine if the exemption applies: “(1) that a trial or adjudication is pending or truly

imminent; and (2) that it is more probable than not that disclosure of the material sought

would seriously interfere with the fairness of those proceedings.” The Guide, Exemption

7(B) at 1–3 (footnotes omitted).

The Court does not necessarily endorse those approaches to the Vermont analog to

FOIA, but neither side has fully explored them. And the Court cannot see how they can

be applied to a cold record under Rule 12(b).

Conclusion

For the foregoing reasons, DPS’s motion to dismiss is denied. This case will be set

for an early status conference to determine next steps to resolve the dispute. The Court

encourages counsel to confer regarding that process as well.

Electronically signed on Friday, October 25, 2024, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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