BURLINGTON — The Vermont Supreme Court has ruled in favor of a recent Vermont Law School graduate seeking an affidavit from University of Vermont police in a case involving a student accused of making a racist threat.
The high court determined Friday that the affidavit was a police arrest record, not a court record covered by the exemption the university was citing.Â
The decision reverses a lower court ruling in the public records lawsuit Friday. The court sent the decision back to the lower court for further review.
VLS student Jacob Oblak sought the affidavit UVM police prepared after arresting continuing education student Wesley Richter at the Bailey/Howe Library in October 2017.
Richter allegedly made racist threats over the phone in the library and was arrested for disorderly conduct, according to the Vermont Cynic, the UVM student newspaper. But a judge did not find probable cause in the case, thereby ending the legal proceedings.
Oblak filed a public records request for the affidavit in March 2018. This request was rejected by the university, which argued the document had been designated as confidential when it was sealed by the Superior Court.
Oblak argued that the exception the university cited related only to court records, and that the affidavit compiled by the UVM police was an agency record.
After Oblak appealed the university’s denial to Chittenden County Superior Court, Judge Robert Mello ruled in favor of the university in August 2018.
“An affidavit of probable cause in a case in which the court did not find probable cause is confidential as a matter of law,” Mello ruled.
The Supreme Court’s Friday decision reversed Mello’s ruling, determining that the affidavit did not qualify as confidential under the Public Records Act, agreeing with Oblak that the affidavit is an agency record.
“Petitioner requested the document from UVM Police Services, an executive agency—not a court,” the court ruled. “We decline to extend a cloak of judicial confidentiality to an agency record simply because it was prepared for a dismissed criminal case.”
The fact that the UVM police filed the record with the court does not change its status as an agency record, the court ruled.
In its argument denying Oblak’s request, UVM cited the Vermont Rules for Public Access to Court Records. The Supreme Court determined that UVM could not use the PACR rule to deny access to the affidavit, as it was “merely an agency record reflecting the initial arrest and charge of a person, neither of which are protected by the PRA.”
“Policy decisions made by the Court do not apply to other branches of government, including executive agencies,” the decision states. “As such, the PACR Rules do not create, by law, a confidential exemption to the PRA such that agencies need not disclose information in their possession and control otherwise subject to the PRA.”
UVM spokesman Enrique Corredera said the university will continue to seek to block the public release of the document.
“The decision does not bring the case to a close,” Corredera said. “The court remanded the case back to the Superior Court. The university will ask the lower court to give consideration to other Public Records Act exemptions.”
Oblak, a recent graduate of Vermont Law School, said via email while the decision was technical in nature, the results were “good for democracy.”
“My original intent was to write a law school paper exploring the First Amendment and racism, how the two potentially conflict, and what society can do about it,” he said. “But I filed this lawsuit because I believe that democracy requires transparency of government.”
Oblak said that he believed the affidavit would benefit the public by providing an understanding of why the police chose to arrest in the case and why prosecutors decided to file charges.
“Only with such information is the public, or any of us, able to have informed opinions about the government’s actions here, and informed decision-making processes as to how to proceed,” he said.
The Supreme Court’s decision is the second high-profile decision in recent months relating to public access to police records in Burlington.
In July, Judge Helen Toor ruled that the Burlington Police Department had to release the body camera footage and other arrest records from Officer Cory Campbell’s interaction with Douglas Kilburn, who died after getting punched by Campbell.