In a blow to transparency and public accountability, the Vermont Supreme Court has ruled that police criminal investigation files meeting an exemption to the Public Records Act are unavailable to the public forever. The Vermont constitutional provision stating that government officials are at all times legally accountable to the public is merely a "philosophical vision," Justice Marilyn Skoglund wrote for the majority, and does not require public disclosure of law enforcement agency investigation documents even in the presence of a strong countervailing public interest. The decision comes only weeks after the Vermont Supreme Court's decision in Bain v. Clark appeared to support a more expansive view of public access to police records.

In January 2011, the Vermont State Police launched an investigation into potential criminal activity related to possession of child pornography by Criminal Justice Training Council personnel at the Vermont Police Academy. The investigation arose after state police received information from the Vermont Department of Human Services about inappropriate material on academy employees' computers. The investigation targeted David McMullen, training coordinator for Homeland Security at the academy. After police seized his home computer, McMullen committed suicide.

State police continued their investigation, including conducting an inquest regarding McMullen's death. When the investigation was completed, Attorney General William Sorrell declined to prosecute any police academy personnel on the grounds that there was insufficient evidence of criminal conduct. The Rutland Herald sought the state police files after the investigation was closed. By its decision of March 30 in Herald v. Vermont State Police and Office of the Attorney General, the Vermont Supreme Court upheld a Rutland Superior Court decision denying access to the documents.

"In this case you have police agency investigation of someone associated with a police agency, with no way for the public to evaluate whether it was done fairly or with favoritism," says Attorney Bob Hemley of Gravel and Shea, legal counsel for the Rutland Herald. "As a matter of policy it's critically important for the public to know which investigations have led to charges and which have not, and when people are exonerated, especially when they are people in some position of power, are they being dealt with as objectively as possible."


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