Norman v. VT Office of Court Administrator

Norman v. VT Office of Court Administrator (2003-146); 176 Vt. 593;
844 A.2d 769

2004 VT 13

[Filed 29-Jan-2004]

                                 ENTRY ORDER

                                 2004 VT 13

                      SUPREME COURT DOCKET NO. 2003-146

                             NOVEMBER TERM, 2003

  Stephen Norman	                }	APPEALED FROM:
                                        }
                                        }
       v.	                        }	Chittenden Superior Court
                                        }	
  Vermont Office of Court Administrator	}
                                        }	DOCKET NO. S0289-00 Cnc

                                                Trial Judge: David A. Jenkins

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Plaintiff Stephen Norman appeals from a superior court order
  denying his Public Records Act request for certain documents in the custody
  of defendant Office of the Court Administrator (OCA).  Plaintiff contends
  the court erroneously concluded that the records were exempt from
  disclosure under the Act's exception for "records which by law are
  designated confidential."  1 V.S.A. § 317(c)(1).  We reverse and remand.

       ¶  2.  In March 2000, plaintiff filed a complaint against the City
  of Burlington and the OCA, seeking access under the Public Records Act, 1
  V.S.A. §§ 315-320, to the "nonexempt records of employment"of Darryl K.
  Graham, a former employee of the Burlington Police Department between 1978
  and 1981, and a former investigator with the OCA from 1995 to 1999.
  Plaintiff alleged that both the Department and the OCA had provided copies
  of some of the requested documents but had improperly withheld others.  The
  OCA later provided plaintiff with an index listing some twenty-five
  nondisclosed documents. The index contained a summary of each document, the
  number of pages, the author and recipient, the basis for nondisclosure
  under the Act, and a brief note relating the contents of the document to
  the claimed statutory exemption. 

       ¶  3.  The parties filed cross-motions for summary judgment. 
  Plaintiff narrowed his request to seven documents withheld by the OCA,
  identified in the index as documents 1 through 7.  The court examined the
  documents in camera, and later issued a written decision, concluding that
  all seven documents were entirely exempt from disclosure under the Act's
  exception for "records which by law are designated confidential." 1 V.S.A.
  § 317(c)(1).  This appeal followed. (FN1) 
   
       ¶  4.  We have frequently observed that the Act is to be "construed
  liberally" in favor of disclosure to effectuate its goal of providing "free
  and open examination" of public records. Herald Ass'n v. Dean, 174 Vt. 350,
  355, 816 A.2d 469, 474 (2002); Trombley v. Bellows Falls Union High Sch.,
  160 Vt. 101, 106, 624 A.2d 857, 861 (1993); 1 V.S.A. § 315.  We have also
  acknowledged, however, that the public's interest in overseeing the
  decisions of its governmental officers must be balanced against the
  people's "right to privacy in their personal and economic pursuits."  1
  V.S.A. § 315; Trombley, 160 Vt. at 109-110, 624 A.2d  at 863.   The
  interplay of these competing principles in determining the nature and scope
  of the Public Records Act exception for records "which by law are
  designated confidential," 1 V.S.A. § 317(c)(1), has not been the subject of
  any extensive analysis. We have made it clear, however, that § 317(c)(1) is
  subject to the general rule that exceptions to the Act must be construed
  "narrowly to implement the strong policy in favor of disclosure."  Finberg
  v. Murnane, 159 Vt. 431, 436, 623 A.2d 979, 981 (1992).

       ¶  5.  In applying the exception for records made confidential "by
  law," the trial court here  expressly declined to identify the statutory
  source of its ruling, stating that to do so "would reveal the nature of the
  documents" at issue and thereby frustrate the purpose of the exception. The
  court alluded, nevertheless, to plaintiff's assertion that Graham (the
  former OCA employee) had voluntarily waived any right to confidentiality by
  serving plaintiff  "with a copy of an expungement order."   The court
  rejected the argument, noting that the expungement order had identified
  only "the offense and length of sentence," and therefore "any additional
  information held by the CAO has not been waived."  Thus, it is apparent
  that the criminal expungement statute underlies its finding of
  confidentiality.  See 13 V.S.A. § 7041 (upon completion of terms of
  probation and deferred sentence agreement, record of criminal proceedings
  shall be expunged "pursuant to section 5538 of Title 33"); 33 V.S.A. §
  5538(c) (upon entry of order sealing delinquency adjudication "the
  proceedings . . .  shall be considered never to have occurred, all index
  references thereto shall be deleted, and the person, the court, and law
  enforcement officers and departments shall reply to any request for
  information that no record exists with respect to such person").      
       
       ¶  6.  The trial court's ruling presents a number of difficulties on
  appeal.  First, even assuming that  the expungement statute applies to
  non-law enforcement records in the personnel files of an employer or to
  information supplied to the employer by the subject of the expungement
  order (issues not raised by plaintiff and therefore not before us), our
  review of the sealed documents reveals that three of the seven (Nos. 4, 6
  and 7) make no reference whatsoever to any expungement order.  Indeed, the
  OCA's document index does not even cite § 317(c)(1) as a basis for
  non-disclosure of these records, relying instead on the exception set forth
  in § 317(c)(7) for "personal documents relating to an individual, including
  information in any files maintained to hire, evaluate, promote or
  discipline any employee of a public agency." Plainly, therefore, the
  exception on which the court relied provides no basis for withholding
  documents 4, 6, and 7.

       ¶  7.  Our review of the remaining documents reveals that No. 2
  makes only one brief reference to an "expunged" conviction, and No. 5
  similarly refers only once to an "expunged order."  Neither contains any
  additional information about the expungement beyond that which Graham
  himself provided to plaintiff.  Moreover, while documents 1 and 3 refer
  more frequently to the expungement order and provide some background
  information, there is no indication that the court gave any consideration
  to redaction of these references and disclosure of the balance of the
  documents.  See Dean, 174 Vt. at 359, 816 A.2d  at 477 (agency may be
  required to redact nonpublic information, disclose balance of records, and
  charge and collect cost of staff time incurred in complying with request). 

       ¶  8.  Furthermore, although the OCA argued in the alternative that
  all of the documents are entirely exempt from disclosure under § 317(c)(7),
  the trial court engaged in no analysis and made no findings addressed to
  this exception.  The record is clear, however, that all of the documents
  are contained in Graham's personnel file, that all but No. 7 pertain to
  disciplinary action and a grievance stemming from Graham's employment with
  the OCA, that No. 7 consists of a criminal records check apparently
  requested by the OCA as an employment requirement, and that all of the
  documents contain information which the OCA maintains is "personal . . .
  within the meaning of Trombley."  In that case, we held that § 317(c)(7)
  does not exempt all personnel records, but only those "personal" documents
  which reveal "'intimate details of a person's life, including any
  information that might subject the person to embarrassment, harassment,
  disgrace, or loss of employment or friends.'" Trombley, 160 Vt. at 110, 624 A.2d  at 863 (quoting Young v. Rice, 826 S.W.2d 252, 255 (Ark. 1992)).  We
  also held  that the individual's interest in personal privacy must be
  balanced against "the public interest in disclosure."  Id.
        
       ¶  9.  Whether public records relating to disciplinary action,
  performance evaluations, or employee grievances contain "personal"
  information within this exception is a fact-specific determination,
  although we note that many courts have held that such records may contain
  highly personal, embarrassing information exempt from disclosure.  For
  example, in Young, 826 S.W.2d  at 255, cited with approval in Trombley, the
  court found that records pertaining to a candidate's performance on a
  police lieutenant's examination contained information that "could subject
  the candidates to embarrassment and could perhaps threaten their future
  employment," and therefore were exempt from disclosure.  Numerous courts
  have held, similarly, that employment performance evaluations or
  disciplinary records, even if favorable, may be "highly offensive" and
  therefore properly  withheld.  Dawson v. Daly, 845 P.2d 995, 1003-04 (Wash.
  1993); accord Chairman, Criminal Justice Comm'n v. Freedom of Information
  Comm'n, 585 A.2d 96, 100 (Conn. 1991) (disclosure of performance evaluation
  of state's attorney "would carry significant potential for embarrassment" 
  and therefore was not compelled under public records act); Bradley v. Bd.
  of Educ. of the Saranac Cmty. Schs., 565 N.W.2d 650, 660 (Mich. 1997)
  (Boyle, J., concurring) ("Without question, performance evaluations,
  disciplinary actions, and complaints about public employees are personal in
  nature."); State v. Alarid, 568 P.2d 1236, 1240 (N.M. 1977) ("documents
  concerning infractions and disciplinary action" could be "seriously
  damaging to an employee" and therefore are exempt from disclosure);
  Pawtucket Teachers Alliance v. Brady, 556 A.2d 556, 559 (R.I. 1989) (state
  public records statute exempts from disclosure personnel "information
  highly personal in nature, such as work-performance evaluations, past
  criminal convictions, and employment-related disciplinary matters").    

       ¶  10.  Although in cases such as these the trial court may need to be
  circumspect in its findings, it is nevertheless obligated "to make all
  findings necessary to support its conclusions, resolve the issues before
  it, and provide an adequate basis for appellate review."  Sec., Agency of
  Natural Res. v. Irish, 169 Vt. 407, 419, 738 A.2d 571, 580 (1999). (FN2) 
  That did not occur here.  As noted, the court erroneously applied §
  317(c)(1) to document Nos. 4, 6, and 7, neglected to consider redaction as
  an alternative to nondisclosure of the remaining documents, and failed to
  address the OCA's claim that § 317(c)(7) exempted all seven documents in
  their entirety from disclosure under the Act.  Accordingly, we are
  compelled to reverse the judgment and remand the matter for further
  findings and analysis.    
   
       Reversed and remanded for further proceedings consistent with the
  views expressed herein.             
       

                                       BY THE COURT:

                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  The court had issued an earlier decision, concluding that four
  documents withheld by the City (identified as documents 16, 17, 19, and 21
  in the City's index) were exempt from disclosure under the Act.  That
  decision was appealed to this Court, but the appeal was dismissed on motion
  as a nonfinal judgment and the matter was remanded to the trial court to
  address plaintiff's addition request for documents withheld by the OCA.  In
  its decision on remand, the trial court - as noted - denied access to the
  OCA documents, but reversed its earlier ruling concerning the police
  department records, concluding that three of the documents withheld by the
  City (Nos. 16, 17, and 21) must be disclosed in their entirety, and one
  (No. 19) must be partially disclosed.  That portion of the court's ruling
  is not before us on appeal.

FN2.  Another option available to the court to maintain confidentiality
  while simultaneously providing a decision adequate for purposes of review
  is to issue a general order setting forth its conclusions and a separate
  decision under seal setting forth its specific factual findings.  In re
  Sealed Documents, 172 Vt. 152, 162-63, 772 A.2d 518, 527-28 (2001).