Reed Doyle v. City of Burlington Police Department
No. 2018-342
Supreme Court of Vermont
July 12, 2019
2019 VT 66
On Appeal from Superior Court, Washington Unit, Civil Division. April Term, 2019. Mary Miles Teachout, J.
NOTICE: This opinion is subject to motions for reargument under
Anthony N.L. Iarrapino of Wilschek Iarrapino Law Office PLLC, and James Diaz and Lia Ernst of ACLU Foundation of Vermont, Montpelier, for Plaintiff-Appellant.
Eileen M. Blackwood and Justin St. James, Office of City Attorney, Burlington, for Defendant-Appellee.
Jennifer Duggan and Elena Mihaly, Conservation Law Foundation, and Jamey Fidel and Jon Groveman, Vermont Natural Resources Council, Montpelier, for Amici Curiae Conservation Law Foundation and Vermont Natural Resources Council.
David Putter and Christopher D. Winters, Montpelier, for Amicus Curiae Jim Condos, Secretary of State of the State of Vermont.
Daniel P. Richardson and Stephen F. Coteus of Tarrant, Gillies & Richardson, Montpelier, and Timothy Cornell and Cornell Dolan, Boston, Massachusetts, for Amici Curiae Vermont Journalism Trust, New England First Amendment Coalition, and Vermont Press Association.
Carl Andeer, Vermont League of Cities and Towns, Montpelier, for Amicus Curiae Vermont League of Cities and Towns.
PRESENT: Reiber, C.J., Skoglund, Eaton and Carroll, JJ., and Burgess, J. (Ret.), Specially Assigned
¶
¶ 2. Plaintiff stated the following facts in his complaint. Plaintiff witnessed an incident involving BPD officers in a public park. Shortly thereafter, plaintiff submitted a citizen‘s complaint form to the BPD to voice concerns about alleged officer misconduct and unreasonable use of force during the incident. Plaintiff subsequently requested to inspect body camera footage, among other records, related to the incident. The BPD denied his request. Plaintiff appealed the denial to BPD Chief Brandon del Pozo. In his response to the appeal, Chief del Pozo characterized plaintiff‘s request as “seeking to inspect” records. He stated that, pursuant to statute, the BPD could only produce a heavily redacted form of the requested records, and the staff time to review and redact the records would cost plaintiff several hundred
¶ 3. After filing a complaint in the civil division against the BPD, plaintiff moved for a partial judgment on the pleadings. He argued that the BPD violated the PRA when it failed to provide the requested records for inspection free of charge. The trial court denied plaintiff‘s motion. Plaintiff timely appealed.
¶ 4. “When reviewing a denial of a motion for judgment on the pleadings, the issue before the Court is whether the movant is entitled to judgment as a matter of law on the basis of the pleadings.” Fercenia v. Guiduli, 2003 VT 50, ¶ 6, 175 Vt. 541, 830 A.2d 55 (mem.). “[W]e accept as true all factual allegations contained in the complaint and all reasonable inferences that can be drawn from those allegations. . . . We . . . focus our analysis on the court‘s conclusions of law, which we review de novo.” Flint v. Dep‘t of Labor, 2017 VT 89, ¶ 3, 205 Vt. 558, 177 A.3d 1080 (quotation omitted).
¶ 5. The parties dispute whether the PRA authorizes state agencies to charge and collect fees for staff time spent complying with requests to inspect public records. This Court applies “a nondeferential and plenary standard of review to issues of statutory interpretation.” Vt. Human Rights Comm‘n v. Agency of Transp., 2012 VT 88, ¶ 7, 192 Vt. 552, 60 A.3d 702; see also
¶ 6. Section 316(c) authorizes an agency to “charge and collect the cost of staff time associated with complying with a request for a copy of a public record.”
¶ 7. Moreover, the plain language throughout § 316 indicates the Legislature‘s intent to distinguish requests to inspect public records from requests to copy them. Section 316 begins by providing that “[a]ny person may inspect or copy any public record.”
¶ 8. Notably, where § 316 authorizes charges for copies, it contemplates that agencies will transfer the copies to requesters—indicating the word “copy” is not interchangeable with “inspect” for the purposes of the statute. Section 316(b) states an agency may “charge and collect from the person requesting the copy the actual cost of providing the copy. . . . The agency may also charge and collect from the person making the request, the costs associated with mailing or transmitting the record . . . .” (Emphasis added.) Section 316(c) states, after authorizing charges for “staff time associated with complying with a request for a copy,” that the “agency may require that . . . all charges be paid . . . prior to delivery of the copies.” (Emphasis added.) This language indicates that in authorizing charges for a “copy,” the Legislature meant a record that the requester could keep and review wherever and whenever the requester chooses. The plain language of § 316 thus separates requests to copy from requests to inspect, and the section only authorizes charges for staff time associated with requests for copies—not requests to inspect.
¶ 9. We acknowledge that here, where no one disputes that the BPD must redact exempted material before producing the record for inspection, the BPD cannot comply with the inspection request without first creating a second, redacted version of the requested material.2 See
¶ 10. Herald Association is inapposite because it does not address a request for inspection. More importantly, as stated above, the statute‘s plain language indicates that the Legislature did not intend to authorize charges associated with staff time in complying with a request to inspect. Where “the meaning is clear” according to “the plain language of the statute,” “we will enforce it according to its terms.” State v. Richland, 2015 VT 126, ¶ 6, 200 Vt. 401, 132 A.3d 702; see also State v. LeBlanc, 171 Vt. 88, 91, 759 A.2d 991, 993 (2000) (“[W]e presume that all language in a statute was drafted advisedly, and that the plain ordinary meaning of the language used was intended.” (quotation omitted)).
¶ 11. Furthermore, the PRA explicitly directs courts to “liberally construe[]” the Act to “provide for free and open examination of records.”
¶ 12. We note that both parties, as well as the many amici curiae, raise competing policy concerns regarding their respective positions. These concerns cannot control our analysis. “Our role is to interpret the law to give effect to the Legislature‘s intent, not to impose our policy preferences on the public.” McGoff v. Acadia Ins. Co., 2011 VT 102, ¶ 13, 190 Vt. 612, 30 A.3d 680 (mem.); see also Rousso v. State, 239 P.3d 1084, 1095 (Wash. 2010) (en banc) (“It is the role of the legislature, not the judiciary, to balance public policy interests and enact law.“). “[W]e must accord deference to the policy choices made by the Legislature,” Badgley v. Walton, 2010 VT 68, ¶ 38, 188 Vt. 367, 10 A.3d 469, and “enforce [the statute] according to its terms,” Richland, 2015 VT 126, ¶ 6. See also Sirloin Saloon of Shelburne, Rutland, & Manchester, Inc. v. Dep‘t of Emp‘t & Training, 151 Vt. 123, 129, 558 A.2d 226, 229-30 (1989) (“[T]he policy issue is for the Legislature, not this Court, where as here the statute is plain on its face.“).
¶ 13. Accordingly, we conclude that state agencies may not charge for staff time spent responding to requests to inspect public records pursuant to the PRA. We hold the trial court erred in denying plaintiff‘s motion for partial judgment on the pleadings.
Reversed.
Chief Justice
¶ 14. EATON, J., dissenting. In my view, the plain language of the relevant provision of the Public Records Act (PRA) authorizes public agencies to charge fees for record requests requiring staff time to review and expunge exempt portions of the requested records. Accordingly, I would uphold the trial court‘s order denying plaintiff‘s motion for judgment on the pleadings.
¶ 15. As enacted in 1976, the PRA allowed any person to “inspect or copy” public records during certain hours and permitted public agencies with photocopying machines to collect copying costs. 1975, No. 231 (Adj. Sess.), § 1; see
in the following instances an agency may also charge and collect the cost of staff time associated with complying with a
request for a copy of a public record: (1) the time directly involved in complying with the request exceeds 30 minutes; (2) the agency agrees to create a public record; or (3) the agency agrees to provide the public record in a nonstandard format and the time directly involved in complying with the request exceeds 30 minutes.
(Emphasis added.)
¶ 16. The question here is whether this provision authorizes an agency to charge staff time for producing a redacted copy of a record for which exemptions are required by law. I would answer that question in the affirmative, given the plain language of § 316(c) and other related provisions in the statute. See Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38, ¶ 20, 194 Vt. 12, 72 A.3d 346 (determining legislative intent requires examining entire statute rather than isolated phrases). I find little, if any, support for plaintiff‘s and the majority‘s position that reimbursement for staff time is unavailable when a requester seeks to inspect a record without obtaining a personal copy of the record, irrespective of the amount of time it takes agency staff to redact exempt information from the requested record and create a copy. In either case, the request requires the production of a copy.
¶ 17. A public agency‘s lawfully required duties in responding to record requests, not the wording of the particular request, should determine whether the agency is authorized to charge for staff time. When a request is made for a record that contains confidential information exempt from public access, a public agency may not withhold the record on that basis, but rather must “redact the information it considers to be exempt and produce the record accompanied by an explanation of the basis for denial of the redacted information.”
¶ 18. Therefore, when a person seeks access to a record that contains confidential information unavailable to the public, the custodian is compelled to create a new record—a redacted copy of the requested record—for public access. The cost of staff time to create the new record is explicitly permitted under
¶ 19. It has to be one or the other. The answer cannot be that no reimbursement for staff time is available because the requester did not seek a personal copy of the record. It makes no sense for the Legislature to authorize reimbursement for staff time reviewing, redacting, and producing records for which a copy is sought, but not for the exact same work when a person seeks only to inspect a redacted copy.
¶ 20. Nothing in § 316(c) compels such an improbable construction of the statute. Construing § 316(c) to authorize reimbursement for staff time to produce redacted copies of requested records does not render the provision‘s reference to “a request for a copy” surplusage, as plaintiff asserts. The provision encompasses instances both when a copy is made upon a request for a copy and when a redacted copy is produced upon a request to inspect a record that contains exempt information. Indeed, removing the phrase “for a copy” would permit an agency to be reimbursed for staff time associated with any request, including requests to inspect records that
¶ 21. Nor is such a construction compelled by the Legislature providing: (1) in
¶ 22. To the extent that § 316(c) could be considered ambiguous with respect to the issue before us, nothing in the legislative history cited by plaintiff compels the construction of the provision adopted by the majority. Indeed, in the most recent amendment of the PRA, the Legislature declined to enact proposed language explicitly stating that a public agency may not collect fees in response to a request to inspect public records. See 2017, No. 166 (Adj. Sess). To be sure, “[l]egislative inaction has been called ‘a weak reed upon which to lean’ and a ‘poor beacon to follow.’ ” Lake Bomoseen Ass‘n v. Vt. Water Res. Bd., 2005 VT 79, ¶ 21, 178 Vt. 375, 886 A.2d 355 (quoting 2B N. Singer, Sutherland on Statutes and Statutory Construction § 49:10, at 112-14, 117 (6th ed. 2000)). But that principle applies equally well to plaintiff‘s heavy reliance on past legislative inaction.
¶ 23. Without question, the laudatory policy underlying the PRA is “to provide for free and open examination of records consistent with . . . the Vermont Constitution.”
¶ 24. Taken to its logical extreme, the majority‘s holding bars public agencies from obtaining reimbursement for significant staff time in response to onerous requests to inspect records requiring redactions—for example, a request for all body camera footage from a municipal police department for any given period of time. See Final Legislative Council Staff Report on Public Records, Privacy, and Electronic Access in Vermont at 11 (Jan. 2005), https://www.sec.state.vt.us/media/26883/Public_records_study_report.pdf [https://perma.cc/9S43-DZUH] (stating that “[i]t is not uncommon for state agencies to receive requests for massive amounts of public records or to receive multiple requests from the same individual,” and that “[t]he task of gathering, reviewing, and when appropriate, redacting information in documents is time intensive and costly“). To be sure, in “unusual circumstances,” an agency “may request that a person seeking a voluminous amount of separate and distinct records narrow the scope of a public records request,”
¶ 25. For the reasons stated above, I respectfully dissent.
Associate Justice