MONTPELIER — A prominent member of the media added his views Wednesday to a debate at the Statehouse over expanding public access to criminal investigation files.
“It seems to us that this is an excellent start, if not an endpoint,” retired WCAX-TV anchor and news director Marselis Parsons said of draft legislation to adopt federal Freedom of Information Act standards for records that are categorically off-limits under existing Vermont public records exemptions.
“The change would make information more available to the public — not the press per se ... but the public,” he added.
Parsons, who retired from a full-time role at the station more than three years ago, and WCAX President and General Manager Peter Martin were among six people who spoke Wednesday about proposed changes to the records law.
The Senate Judiciary Committee has spent a month hearing testimony on ways the state could increase access to law enforcement records.
Days before the latest hearing, committee chairman Sen. Richard Sears, D-Bennington, said he hoped to vote on a bill this week.
But at the end of about two hours of testimony Wednesday, Sears said he now believes the issue won’t be decided until next week.
“We’re going to try to finalize where we’re going on this,” he said. “We’ve heard enough testimony, I think that we need to decide whether we want to go with the attorney general, the ACLU (American Civil Liberties Union of Vermont) or the governor on this.”
Those three entities have each offered up suggestions for broadening access to criminal case files which the Vermont Supreme Court has deemed off-limits to the public indefinitely.
The proposals put forth by the ACLU and Gov. Peter Shumlin are very similar. Each supports the adoption of federal FOIA standards which presume that all criminal investigation records are public unless at least one of a handful of exemptions applies.
Shumlin’s proposal — on which the draft legislation before the committee is based — differs only in the addition of language that would exempt any records that could “reasonably be expected to constitute an unwarranted invasion of personal privacy.”
Vermont Attorney General William Sorrell’s proposal calls for only criminal records brought against on-duty law enforcement officers to be made available to the public.
Sorrell has also advocated a narrow change to information released about grand jury proceedings — historically secret on all levels — to allow prosecutors to acknowledge whether a grand jury failed to return an indictment in cases involving on-duty police officers.
The attorney general has argued that broader changes would threaten the privacy of victims and others who get pulled into criminal investigations.
“It’s our position that our proposal offers the best middle ground here,” Assistant Attorney General John Treadwell told committee members Wednesday.
From a more practical standpoint, Treadwell argued that prosecutors and the state would incur more expenses if broader access was granted because of the time attorneys would need to devote to reviewing cases to determine whether they would be exempt.
He said the state could also find itself paying more often for legal fees in cases where the state loses challenges for access to criminal records.
“Our office received a request not long ago for records dating back to 1997. That added up to 40 hours of an attorney’s time in one request case,” he said.
But some members of the committee asked why public access to records would be a greater burden for the prosecutors than they are for other state and local agencies.
“Other agencies are already living under broader rules of access,” said Sen. Jeanette White, D-Windham. “Everyone else currently has to respond to these types of requests all the time. Why are criminal records different?”
In answer, Treadwell said criminal cases are often dotted with potentially private information about victims and others who aren’t accused of a crime or suspected of one.
“There are a lot of people who through no fault of their own make it into criminal cases,” he said.
But Allen Gilbert, executive director of ACLU Vermont, said the state’s blanket exemption for criminal records isn’t as absolute as it seems. He said the privacy of individuals named in those documents could be tread upon at any time by prosecutors who have authority under the law to release records at their discretion.
“I think in most cases, prosecutors do right in protecting the privacy of people named in these cases but right now, the process for releasing these records is done in an arbitrary fashion,” he said. “All we want is a balancing test for these records that everyone will follow.”
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