Too Close for Comfort

by Sara Puls

Herald v. City of Rutland, 2013 VT 98.

Sometimes the law just makes so much sense! Turns out, police officers, employees of the public variety, can’t watch porn at work and expect to keep it private.  What a concept!  But don’t worry; the Vermont Public Records Act will still protect your private, intimate, public employee details from public disclosure—just not that intimate.

Here are the facts.  In 2010, a Rutland Police Sergeant was fired in the wake of a criminal investigation involving suspected viewing of pornography and child pornography on work computers, some of which may have been obtained from evidence lockers.  The Rutland Herald immediately launched an investigation and quickly learned that throughout the last decade, other police officers had been investigated and disciplined for using department computers to view pornography at work.

The Herald requested from the City, per Vermont’s Public Records Act which requires public entities to provide access to public records, the complete records from a 2004 internal investigation into police employees and subsequent disciplinary actions, as well as discipline records of two employees from the Department of Public Works for violating the City's internet usage policy.

The City denied those requests on the grounds those documents were exempt from disclosure under Vermont Public Records law under either exemption (c)(5) (records dealing with the detection and investigation of crime) or (c)(7) (personal documents relating to an individual employee).  The City argued that the privacy of their employees would be violated if these records were released and that precedent could threaten the privacy rights of public employees all over the state.

The Herald appealed to the trial court, and in September of 2010, the trial court conducted an in-camera review of the records and ordered the City to release the records, with certain redactions.  The court rejected the City's argument that the documents were exempt from disclosure, either under 1 V.S.A. § 317(c)(5) or (c)(7).

The City immediately appealed.  On its first trip up in 2012, the SCOV affirmed the trial court's decision as to the records concerning the files of the public works employees.  But, the SCOV reversed and remanded as to the remaining police records, holding that the trial court needed to assess “as a threshold matter” if the records fell under “the investigation of a crime” exception.  Thus, SCOV found it premature to address whether the records would fall within the “personal documents” exception.

In September 2012, following an evidentiary hearing on remand, the trial court concluded that certain documents were exempt from disclosure under § 317(c)(5), while leaving in place its September 2010 ruling that records pertaining to police-employees-watching-porn-at-work were not exempt from disclosure.  The court found this exemption applies only to personal documents relating to the privacy of the individual such as: information maintained to hire, evaluate, promote or discipline any employee, information relating to personal finances, medical or psychological facts of an employee, or “intimate details of a person's life” including information that might subject the person to “embarrassment, harassment, disgrace, or loss of employment or friends.” 

In considering whether these records fell under the “personal documents” exception, the trial court applied a balancing test where the public interest in disclosure is balanced against the privacy interest of, and potential harm to, the individual. Under this balancing test, the court considered factors such as the relevance of the records to the public interest, the significance of the public interest involved the nature, gravity, and potential consequences of the invasion of privacy to the individual, and the availability for the requested information from alternative sources.

Under this test, the trial court found the records highly relevant to the public interest, finding a significant public interest in disclosure of such matters, emphasizing that the public should be allowed to scrutinize the activity of public employees suspected of wrongdoing, as well as the conduct of the public employees who investigate them.  The trial court also pointed to no alternative sources for this information.  

Alternatively, the trial court found the privacy interests at stake much less compelling and very narrowly construed the personal documents exemption and “intimate details of a person’s life” language.  It further rejected the argument that the records should be exempt merely because they would reveal “intimate” information that “might subject the [employees] to embarrassment, harassment, disgrace, or loss of employment or friends.”  As the trial court noted, [reasonable] public employees have little expectation of privacy in their actions or identities when they view and send porn on public computers, while working as public employees.  Therefore, since these were not private, intimate details about an employee (although perhaps literally intimate) the court found little, if any, privacy interest involved and balanced against the significant public interest, held that the documents should be disclosed.

Again, the City appealed from the trial court’s order. And again the City reiterated that the records should be exempt under the “public documents” exemption and that the court erred in finding that its employees had no privacy interest (…in viewing porn at work). The City argued that employees must have some expectation of privacy while performing “work related functions” whether allegedly improper or not, because otherwise, there would be no need for a balancing test.

The SCOV reviewed the trial court’s decision for abuse of discretion and found none. The SCOV starts its analysis as it does with all such public records cases by emphasizing the principal that the Vermont Public Records Act favors the right of access to records, and that the stated Legislative intent is a preference for “free and open examination of records” consistent with the Vermont Constitution.  Thus, exemptions, when they are asserted, are construed strictly against the records custodian, and any doubts are to be resolved in favor of disclosure.

In response to the City’s arguments, the SCOV notes, even assuming that the records contain “personal information” within § 317(c)(7), the balancing test must still be conducted.  The SCOV agrees with the trial court’s analysis of the interests: that the public interest heavily outweighed any of the employees’ privacy interests at stake, not to mention the inherently unreasonable expectation of privacy of public employees viewing and sending porn on work computers.

The SCOV also emphasizes the high level of the public interest involved with such repeated instances of similar misconduct over a five-year period.  Internal investigation records revealed that one employee downloaded between 5,000 to 10,000 pornographic images onto his work computer, including possible child pornography.

The SCOV distinguishes the documents at issue from documents which would fall under this “personal documents” exception, such as those pertaining to personnel matters where the officers' execution of duty is called into question or subject to disciplinary correction, or records of performance evaluations which would not significantly advance the public interest.  Here, the SCOV notes such “personal frolics” are completely entirely unrelated to the officers' jobs, merely having occurred on public time, on public property, on public dollar, and therefore would not fall under the exception to disclosure.

Further, the SCOV also finds for disclosure without the need for redaction of the employees’ personally identifying information, as that might unfairly taint the entire police department’s reputation when only a few employees were at fault.  Overall, given the significant public interest at stake balanced against little to no privacy interest, the SCOV agrees with the trial court that the balance strongly tips in favor of disclosure of all the “intimate” details of the police department’s personal frolics.

So the Hearld walks away with its information (and presumably its attorney’s fees).  And the City walks away with the hard-won knowledge that public records, like pornography, are difficult to deny to motivated seekers.