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Vermont Orders Privacy vs. Public Interest Balancing In DOC Superintendent's Performance Evaluation Public Disclosure Request
By Bob Williams
The Vermont Supreme Court has ordered a lower court to balance the privacy interests of Vermont Department of Corrections (VDOC) Superintendent Kathleen Lanman, of the Northern State Correctional Facility (NSCF), against the need for public disclosure of her performance evaluation in light of prison deaths.
Vermont attorney Barry Kade requested the reports from the VDOC concerning Lanman from 1999 through 2003 after an internal investigation was spurred by the death of seven state prisoners. The VDOC and the Agency of Human Services (AHS) denied the request claiming exemption from disclosure under the Act's provisions in 1 V.S.A. § 317(c)(7) as "personal documents," which exempts hiring, evaluation and promotional reports. Kade motioned to compel the reports' disclosure in the state superior court. The state's motions for dismissal and summary judgment were denied for failure to specify the alleged exempt personal materials. AHS personnel chief Sharon Wilson then submitted an affidavit stating that the disclosure "would create a disincentive for drafters to provide candid and honest evaluations," would cause "embarrassment to employees," and potentially undermine morale due to varying scores. Another affidavit from Department of Personnel Commissioner Cynthia LaWare claimed that disclosure would provide a "strong disincentive to frankness," would "cause friction and undermine morale" and would be devastating to VDOC security if prisoners knew of performance inadequacies. An index describing the subject and nature of the reports was filed along with the affidavits. Kade urged that disclosure would aid in proving public interest as well as the VDOC's investigation.
The trial court found sufficient personal materials present and ordered exemption. The court ruled that an independent report "strongly suggests some instance of negligence or other impropriety" on Lanman's part "which may have contributed to causing devastating consequences" and that the VDOC's investigation was still in progress. The court further held that the reports would not substantially infer public interest in disclosure. In camera inspection was ruled "unnecessary" and the court held that requisite voluminous redaction would "render their release meaningless." Kade appealed claiming that nondisclosure could not be determined absent in camera inspection and that the reports were not personal.
The Vermont Supreme Court held that it was not error to bypass in camera inspection in light of the submitted index and affidavits. It was held, however, that in this case it is necessary for the proper evaluation of privacy and evasion concerns because they depend on the records' detailed components rather than their labeling or file category. Inspection was also held necessary to determine the records' affect on advancing public interest in disclosure. Remand was ordered with instructions to consider redaction or partial seal of specific findings for confidentiality purposes if a nondisclosure determination did prevail after inspection. The dissent opined that the plain language of § 317(c)(7) did not mandate balancing privacy and disclosure interests, and that the court should not "stretch the language beyond legislative intent" and would have ruled the records exempt from disclosure. See: Kade v. Smith, 904 A.2d 1080 (Vt. 2006).
The Vermont Supreme Court has ordered a lower court to balance the privacy interests of Vermont Department of Corrections (VDOC) Superintendent Kathleen Lanman, of the Northern State Correctional Facility (NSCF), against the need for public disclosure of her performance evaluation in light of prison deaths.
Vermont attorney Barry Kade requested the reports from the VDOC concerning Lanman from 1999 through 2003 after an internal investigation was spurred by the death of seven state prisoners. The VDOC and the Agency of Human Services (AHS) denied the request claiming exemption from disclosure under the Act's provisions in 1 V.S.A. § 317(c)(7) as "personal documents," which exempts hiring, evaluation and promotional reports. Kade motioned to compel the reports' disclosure in the state superior court. The state's motions for dismissal and summary judgment were denied for failure to specify the alleged exempt personal materials. AHS personnel chief Sharon Wilson then submitted an affidavit stating that the disclosure "would create a disincentive for drafters to provide candid and honest evaluations," would cause "embarrassment to employees," and potentially undermine morale due to varying scores. Another affidavit from Department of Personnel Commissioner Cynthia LaWare claimed that disclosure would provide a "strong disincentive to frankness," would "cause friction and undermine morale" and would be devastating to VDOC security if prisoners knew of performance inadequacies. An index describing the subject and nature of the reports was filed along with the affidavits. Kade urged that disclosure would aid in proving public interest as well as the VDOC's investigation.
The trial court found sufficient personal materials present and ordered exemption. The court ruled that an independent report "strongly suggests some instance of negligence or other impropriety" on Lanman's part "which may have contributed to causing devastating consequences" and that the VDOC's investigation was still in progress. The court further held that the reports would not substantially infer public interest in disclosure. In camera inspection was ruled "unnecessary" and the court held that requisite voluminous redaction would "render their release meaningless." Kade appealed claiming that nondisclosure could not be determined absent in camera inspection and that the reports were not personal.
The Vermont Supreme Court held that it was not error to bypass in camera inspection in light of the submitted index and affidavits. It was held, however, that in this case it is necessary for the proper evaluation of privacy and evasion concerns because they depend on the records' detailed components rather than their labeling or file category. Inspection was also held necessary to determine the records' affect on advancing public interest in disclosure. Remand was ordered with instructions to consider redaction or partial seal of specific findings for confidentiality purposes if a nondisclosure determination did prevail after inspection. The dissent opined that the plain language of § 317(c)(7) did not mandate balancing privacy and disclosure interests, and that the court should not "stretch the language beyond legislative intent" and would have ruled the records exempt from disclosure. See: Kade v. Smith, 904 A.2d 1080 (Vt. 2006).
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