Vt Journalism Trust v. Dps

Termont Superior Court
Filed 05/09/25
Washington nit

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 Cross-Motions for Summary Judgment

Plaintiff Vermont Journalism Trust (VTDigger), which operates the VTDigger

news website, submitted a public records request to Defendant Department of Public

Service (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 (DUI). See 1 V.S.A. §§ 315-320 (Public Records Act or PRA). Ms. Vekos

subsequently was charged with DUI, and her criminal trial is currently scheduled for

this coming June. DPS denied access to all such records initially and on administrative

appeal. VTDigger then filed this suit seeking to enforce the PRA. After the Court denied

DPS's motion to dismiss, the parties filed the pending cross-motions for summary

judgment. In short, DPS argues that the withheld records are entirely exempt from

production under the PRA as records the release of which: (a) could be expected to

interfere with enforcement proceedings; and (b) would deprive a person of a fair or

impartial trial. 1 V.S.A. § 317(c)(5)(A)G@) Gnterference with enforcement), (c)(5)(A)(ai)

1
In the dismissal decision, the Court rejected DPS's argument that the exemption for
"[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" applies in this case. 1 V.S.A. § 317(c)(8). Although Exemption 3 is cited in DPS's
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(fair trial). VTDigger argues that the records should be produced in their entirety and,

even if there were a basis for withholding any of them, those that depict Ms. Vekos’s

arrest must be produced.

I. Legal Standards

Summary judgment procedure is “an integral part of the . . . Rules as a whole,

which are designed ‘to secure the just, speedy and inexpensive determination of every

action.’” Morrisseau v. Fayette, 164 Vt. 358, 363 (1995) (quoting Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986)). Summary judgment is appropriate if the evidence in the

record, referred to in the statements required by Vt. R. Civ. P. 56(c), shows that there is

no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)

(summary judgment will be granted if, after adequate time for discovery, a party fails to

make a showing sufficient to establish an essential element of the case on which the

party will bear the burden of proof at trial). The Court derives the undisputed facts from

the parties’ statements of fact and the supporting documents. Boulton v. CLD

Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A party opposing

summary judgment may not simply rely on allegations in the pleadings to establish a

genuine issue of material fact. Instead, it must come forward with deposition excerpts,

affidavits, or other evidence to establish such a dispute. Murray v. White, 155 Vt. 621,

628 (1991). Speculation is insufficient. Palmer v. Furlan, 2019 VT 42, ¶ 10, 210 Vt. 375,

380. Where, as here, there are cross-motions for summary judgment, the parties

subsequently filed Vaughn index, it is not asserted as a basis for nondisclosure in its
summary judgment motion. Accordingly, the Court sees no need to reconsider its
dismissal ruling on this point.
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opposing summary judgment “are entitled to the benefit of all reasonable doubts and

inferences.” Montgomery v. Devoid, 2006 VT 127, ¶ 9, 181 Vt. 154, 156.

The Court has explained the basic standards that apply under the PRA as follows:

In adopting the PRA, the Legislature reaffirmed the fundamental
principle of open government that public officials “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.” The PRA thus expresses a strong
legislative policy “favoring access to public documents and records,” and its
provisions are to be “construed liberally” in favor of disclosure. Conversely,
we construe the statutory exceptions to the general policy of disclosure
“strictly against the custodians of the records and any doubts should be
resolved in favor of disclosure.” “The burden of showing that a record falls
within an exception is on the agency seeking to avoid disclosure.”

Price v. Town of Fairlee, 2011 VT 48, ¶ 13, 190 Vt. 66, 72–73 (citations omitted).

II. Factual Background

The dispute in this case is limited to the legal question of whether, or to what

extent, the PRA requires DPS to produce the requested records. There is no material

dispute of fact.

The alleged events of January 25, 2024, have been widely reported on the

VTDigger news website and in the media generally. They are detailed with specificity in

the affidavits of police officers and related materials that are both in the record of this

case and already available to the public. In short, Ms. Vekos was called to a crime scene

in Bridport late in the evening. Soon after she arrived (having driven herself there),

police officers suspected that she was under the influence. The decision was made to

confront her, at which time the first body camera was activated. Ms. Vekos is alleged to

then have refused to perform field sobriety tests and become upset and argumentative.

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At that point, the police arrested her, put her in a police vehicle, and took her to the New

Haven State Police Barracks for processing.

The Vaughn index describes the records at issue in this case. They include the

body camera footage of Sergeant Eden Neary and Trooper Kelsey Dobson, which reflects

most of the police interactions with Ms. Vekos from when the first body camera was

activated until she arrived at the barracks. They also include footage within the

barracks, apparently from several fixed cameras, taken during Ms. Vekos’s processing.

III. Analysis

Both of the exemptions asserted in this case address records “dealing with the

detection and investigation of crime.” 1 V.S.A. § 317(c)(5). Exemption (c)(5), in relevant

part, provides:

(c) The following public records are exempt from public inspection and
copying:

. . .

(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;

. . .

(B) Notwithstanding subdivision (A) of this subdivision (5) . . . 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
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24-CV-02289 Vermont Journalism Trust v. Vermont Department of Public Safety
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.

The analogous FOIA provisions are:

Enforcement Fair trial
1 V.S.A. § 317(c)(5)(A)(i) 1 V.S.A. § 317(c)(5)(A)(ii)
5 U.S.C. § 552(b)(7)(A) 5 U.S.C. § 552(b)(7)(B)

There are no reported Vermont Supreme Court cases addressing the relevant

subdivisions of the Vermont exemption.

In briefing, DPS cites both exemptions, but largely relies on the standards

applicable to the FOIA interference-with-enforcement exemption as though it entirely

subsumes the fair trial exemption. The exemptions are by no means interchangeable.

The enforcement exemption is subject to a relatively more lenient “could reasonably be

expected” standard than the fair trial exemption’s “would deprive a person” standard. 2

Further, the “usual rationale[s] given for [applying FOIA Exemption 7(A)] is the

danger of witness intimidation, the witness’ desire to maintain confidentiality, and

concern that premature disclosure would create a chilling effect on potential witnesses

and dry up sources of information.” Manna v. U.S. Dep’t of Just., 51 F.3d 1158, 1164 (3d

Cir. 1995) (citation omitted); see generally NLRB v. Robbins Tire and Rubber Company,

2 Additionally, a modified, “functional,” categorical approach to nondisclosure, which is

well documented in federal case law, also is available under the enforcement exemption
but not the fair trial exemption. But see Hier v. Slate Valley Unified Sch. Dist., 2025 VT
2, ¶ 14 n.3 (asserting in dicta that the Court’s adoption in Rutland Herald v. Vermont
State Police, 2012 VT 24, 191 Vt. 357, of a bright-line categorical approach to 1 V.S.A. §
317(c)(5) remains “good law” following an amendment to § 317(c)(5) that now
incorporates federal standards, which appear inconsistent with Rutland Herald); see the
Court’s dismissal decision in this case—which preceded the Hier decision—discussing the
amendment vis-à-vis Rutland Herald. Given the Court’s resolution of the exemptions
asserted here, it need not grapple with the breadth of the ruling in Hier.
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437 U.S. 214 (1978) (discussing this exemption at length, explaining in the context of the

case that premature disclosure of witness statements would risk witness intimidation,

and stating that “[f]oremost among the purposes of this Exemption was to prevent ‘harm

[to] the Government’s case in court,’ by not allowing litigants ‘earlier or greater access’ to

agency investigatory files than they would otherwise have” (citations omitted)).

Federal case law under Exemption 7(A) is thoroughly canvassed in the

Department of Justice Guide to the Freedom of Information Act, Exemption 7(A),

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

rationales supporting nondisclosure have included: disclosure of lists of names that could

be used by terrorists; production that could improperly reveal insight into litigation

strategy or prematurely reveal the scope and direction of an investigation or case; release

of investigation methodologies that depend on confidentiality could be revealed;

disclosure of the existence or identity of witnesses might be prematurely revealed;

surveillance might be thwarted.

As the Guide concludes, “[c]ourts have upheld the application of Exemption 7(A)

when release of the protected information would reveal the nature, scope, direction, or

focus of an investigation, which could damage the government’s ability to control or

shape its investigation. The release of such information could allow targets to elude

detection, suppress or fabricate evidence, or prevent the government from obtaining

information in the future.” Guide at 14–16 (footnotes omitted). “Courts have held that

Exemption 7(A) ordinarily will not afford protection when the target of the investigation

has possession of, or has submitted, the information in question or the agency has made

it public.” Id. at 18 (emphasis added, footnote omitted).

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Exemption 7(B), by contrast, “is aimed at preventing prejudicial pretrial publicity

that could impair a court proceeding.” Guide to the Freedom of Information Act,

Exemption 7(B) at 1. “In practice, this exemption is rarely invoked.” Id. “The threat of

interference to a trial must relate to the fairness of its ultimate outcome as a whole.” 33

Richard Murphy, et al., Fed. Prac. & Proc. Judicial Review § 8472 (2d ed.). Courts have

noted that the exemption “ was meant to prevent disclosures from conferring an unfair

advantage upon one party to an adversary proceeding or leading to prejudicial publicity

in pending cases that might inflame jurors or distort administrative judgment.”

Washington Post Co. v. U.S. Dept. of Justice, 863 F.2d 96, 101 (D.C. Cir. 1988); see also

id. at 102 (“Congress made the threshold of (7)(B) higher than for most of the other

exemptions for law enforcement material. Whereas (7)(A), (C), (D) and (F) permit records

to be withheld if release ‘could reasonably be expected to’ cause a particular evil, (7)(B)

requires that release ‘would’ deprive a person of fair adjudication.”).

“[T]o withstand a challenge to the applicability of (7)(B) the government bears the

burden of showing: (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.” Id. at 102. Fairness relates to the

“overall fairness” of the proceeding. Chiquita Brands Intern. Inc. v. S.E.C., 805 F.3d 289,

298 (D.C. Cir. 2015).

There is no dispute that Ms. Vekos and her defense attorney already have access

to the records withheld in this case. The only seriously asserted basis for withholding

them from VTDigger is that production would attract more media attention and

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jeopardize a fair trial by causing bias among members of the public who might be

selected to be on the jury in the criminal case. This is fully apparent in the affidavit from

the prosecutor in the criminal case, who explains:

6. Every aspect of Ms. Vekos’ presentation on the night of January 25, 2024,
including the way she speaks, what she says, the way her face appears, her
interactions, her coordination and movement, her demeanor, etc., is at issue
in the trial and will be the subject of the jury’s determinations regarding her
guilt.

7. The undersigned intends to use the requested footage in trial as evidence
of Ms. Vekos’ guilt and believes it is imperative that the jurors view this
evidence in the context of a trial and not through a media source or any
other preview outside of the courtroom.

8. The requested footage is also evidence that relates to the reasonableness
of the officers’ questioning of Ms. Vekos and their conduct in response to her
actions. The undersigned anticipates that the officers’ questioning and
conduct will be challenged by Ms. Vekos’ defense counsel, Mr. Sleigh.
Again, the undersigned believes it is imperative that the jurors view this
evidence and hear the arguments in the context of a trial and not through a
pre-trial media source or any other preview outside of the courtroom.

9. All three officers that appear in the withheld footage, Trooper Kelsey
Dobson, Sergeant Eden Neary, and Detective Trooper Ryan Anthony, are
expected to testify at the trial.

10. The release of the requested footage prior to the trial could reasonably
be expected to interfere with the proceedings by unnecessarily exerting
influence on potential jurors’ perceptions of Ms. Vekos and the witnesses,
including whether they are credible, as well as the evidence to be presented
at trial.

11. The disclosure of the records to the media in this case carries a
substantial risk of tainting jury impartiality and witness testimony because
of the heightened media coverage and interest in Ms. Vekos’ arrest,
subsequent communications with law enforcement, medical leave, and bar
license. Ms. Vekos, like any other defendant, is entitled to a fair trial and
the evidence should be fairly considered by a jury of her peers, in the
context of a trial.

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24-CV-02289 Vermont Journalism Trust v. Vermont Department of Public Safety
Affidavit of Rosemary Kennedy (filed Dec. 11, 2024).3 No jury yet has been selected in

the criminal case. The apparent rationale for nondisclosure, therefore, is that more

publicity will make it harder to pick an impartial jury.

This rationale squarely falls within the fair trial exemption. While the

interference-with-enforcement exemption is broad, DPS’s evident position—embraced at

oral argument—that it is reasonably interpreted to completely swallow the fair trial

exemption, has no basis in the law. Ordinarily, statutes are not interpreted to render

any of their provisions to be complete nullities. In re Mountain Top Inn & Resort, 2020

VT 57, ¶ 37, 212 Vt. 554, 574 (“We consider ‘the whole and every part of the statute,’ and

avoid a construction ‘that would render part of the statutory language superfluous.’”

(citations omitted)). Other than here, the Court has been able to identify only one case in

which a party even impliedly argued that the interference exemption properly swallows

the fair trial exemption, and the Court in that case made quick work of the matter:

[T]he FBI’s concerns regarding the effects of disclosure on jury
impartiality are properly raised under Exemption 7(B), and not under
Exemption 7(A). Exemption 7(A) applies to records “compiled for law
enforcement purposes, but only to the extent that the production of such law
enforcement records or information (A) could reasonably be expected to
interfere with enforcement proceedings.” There is a separate exemption for
records the disclosure of which “would deprive a person of a right to a fair
trial or an impartial adjudication.” The FBI has not argued that Exemption
7(B) applies to any of the records withheld here, however. Nor has the FBI
identified any case holding that Exemption 7(A) applies to records the
disclosure of “which could impair the . . . ability to seat a fair and impartial
jury”—and this Court has not discovered any such case.

As the D.C. Circuit recently noted, “Exemption 7(B) applies only
when the disclosure of law enforcement records would deprive a person of
the right to ‘a fair trial or an impartial adjudication[ ]’ . . . [and] the word
‘trial’ means the ultimate determination of factual and legal claims by judge

3 To the extent that anything in Ms. Kennedy’s affidavit falls within the enforcement

exemption, any such allegations are far too conclusory to warrant any relief.
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or jury in a judicial proceeding.” “Congress made the threshold of (7)(B)
higher than for [7(A)] . . . Whereas (7)(A), (C), (D) and (F) permit records to
be withheld if release ‘could reasonably be expected to’ cause a particular
evil, (7)(B) requires that release ‘would’ deprive a person of fair
adjudication.”

It appears unlikely that Congress intended that Exemption 7(A)
apply to documents “which could reasonably be expected to impair the . . .
ability to seat a fair and impartial jury.” That reading of Exemption 7(A)
would swallow Exemption 7(B), despite the latter’s heightened standard and
distinct requirements.

Radar Online LLC v. Federal Bureau of Investigation, 692 F.Supp.3d 318, 344 n.10

(S.D.N.Y. 2023) (citations omitted).

This case falls under the fair trial exemption at 1 V.S.A. § 317(c)(5)(A)(ii), to which

FOIA standards under 5 U.S.C. § 552(b)(7)(B) apply, as required by 1 V.S.A. §

317(c)(5)(C). DPS has not effectively shown in law or fact that the enforcement

exemption is properly asserted in this case.

There can be no doubt that a trial is pending. The only remaining question is

whether it is “more probable than not that disclosure of the material sought would

seriously interfere with the fairness of those proceedings.” Chiquita Brands Intern. Inc.

v. S.E.C., 805 F.3d 289, 298 (D.C. Cir. 2015). As described above, this exemption sets an

exacting standard. Washington Post Co., 863 F.2d at 102 (showing needed under §

552(7)(b) is “higher than for most of the other exemptions for law enforcement

materials”). DPS has not satisfied its burden of showing that it meets that high

threshold.

To the extent that Ms. Kennedy’s affidavit suggests that publicity stoked by

disclosure might bias some potential jurors, the allegation is conclusory and does not

support the conclusion that release “would” make the actual trial unfair. Washington

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Post Co., 863 F.2d at 101 (“burden cannot be met by mere conclusory statements; the

agency must show how release of the particular material would have the adverse

consequence that the Act seeks to guard against”).

More importantly, however, even if the Court were to assume exactly that,

nowhere in the record does DPS address the most important circumstances weighing on

the question of disclosure here—that no jury yet has been chosen in the criminal case,

that the jury selection process that the criminal court will undertake before a jury is

seated is designed precisely to ensure that the jury chosen will be fair and impartial, and

that any such jury would be instructed not to do research or view media coverage of the

events. There is no allegation whatsoever to the effect that disclosure will make the

selection of a fair and unbiased jury impossible or unreasonably onerous. The videos

include the audio and visual aspects to what interested members of the public already

know.

The Court cannot conclude in these circumstances that disclosure would seriously

interfere with the ultimate fairness or impartiality of the trial under the standards of

exemption § 317(c)(5)(A)(ii). See Whitlock v. United States Dep’t of Def., No. 20-CV-3246

(JMC), 2025 WL 721876, at *10 (D.D.C. Mar. 6, 2025) (“But the mere fact that a pool of

potential jurors (or here, Board of Inquiry members) might be exposed to publicity about

a case—even per[v]asive, adverse publicity—does not satisfy Exemption 7(B)’s high

standard.” (citation and internal quotation omitted)); Chiquita Brands Int’l, Inc. v.

United States Sec. & Exch. Comm’n, 10 F. Supp. 3d 1, 5 (D.D.C. 2013), aff’d sub nom. 805

F.3d 289 (D.C. Cir. 2015) (“Chiquita’s speculation about potential publicity and its effect

on a future jury in the Florida Litigation does not satisfy the level of certainty required

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by FOIA Exemption 7(B). The relevant test is not whether pretrial publicity ‘could’

impact fairness or impartiality. Exemption 7(B) expressly requires that disclosure

‘would’ compromise the fairness of a proceeding.” (citation omitted))

Our PRA itself provides that it is to be liberally construed in favor of disclosure. 1

V.S.A. § 315. Exemptions to production of the people’s records are to be narrowly cabined

within the exceptions specifically limned by the Legislature. Price, 2011 VT 48, ¶ 13, 190

Vt. 66, 72–73. In this case, DPS has not satisfied its burden of establishing grounds to

withhold the requested records, in part or in whole. VTDigger is entitled to summary

judgment on that basis.

Because the records must be produced in their entirety, there is no need to

consider the scope of the initial arrest exception to the exemptions.4

4 The Court notes, however, that DPS’s argument that the arrest exception somehow

would not apply, at least, to some of the withheld records is likely inaccurate. The arrest
exception is absolute: there is no balancing test. If records are otherwise properly
withheld under 1 V.S.A. § 317(c)(5)(A), they nevertheless must be disclosed if they reflect
“the initial arrest of a person” under 1 V.S.A. § 317(c)(5)(B). Video footage of police
interactions with a DUI suspect before, during, and after the arrest—at least to some
extent—likely include depictions of the “initial arrest.” No doubt, the proper breadth of
the term initial arrest is especially unclear in Vermont case law. See the mandate in
Galloway v. Town of Hartford, 2012 VT 61, 192 Vt. 171, 178 (appearing to compel
production of all records generated before, during, and after a “de facto” arrest, without
any apparent limitation, as records of an initial arrest). The issue need not be sorted out
in this case, however.
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Conclusion

For the foregoing reasons, DPS’s motion for summary judgment is denied, and

VTDigger’s is granted. Consistent with this Order, DPS shall produce all withheld

records to VTDigger within 10 days.

Electronically signed on May 9, 2025, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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