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Jul 31, 2023

Judge sides with Stowe Reporter in suit over police records

This story, by Tommy Gardner, was first published by the Stowe Reporter on Aug. 3. A judge ruled last month that the town of Stowe could not withhold information about a police officer who was

This story, by Tommy Gardner, was first published by the Stowe Reporter on Aug. 3.

A judge ruled last month that the town of Stowe could not withhold information about a police officer who was terminated last winter just because it sent that information to a statewide political body inclined to keep that kind of thing under wraps.

Judge Daniel Richardson ruled in Vermont Superior Court in Hyde Park that documents the town had sent to the Vermont Criminal Justice Council could not be shielded by the town.

“The fact that the town contributes material that the Council considers and keeps confidential for its own purpose does not extend this bubble of confidentiality to the Town as originator and supplier,” Richardson wrote in his July 26 entry order.

The judge’s ruling effectively ended a public records request that the Stowe Reporter filed against the town of Stowe and a lawsuit the town filed against staff writer Aaron Calvin and the newspaper’s parent company, the Vermont Community Newspaper Group. (See related story about what the records reveal.)

Richardson, in noting the “undercurrent” to the case is the need for the public to see how government agencies are performing, quoted the Roman poet Juvenal’s line “Who watches the watchmen?”

“It is openness, public awareness, and access to information for the benefit of the general public that does this work by dispelling rumor, myth, conjecture, and conspiracy with the cold hard facts of objective reporting and good government process,” Richardson wrote.

“Over too many years, the public and the press have seen too many local officials shielding records that are clearly public,” said Greg Popa, editor of the Vermont Community Newspaper Group, which publishes the Stowe Reporter, News & Citizen, The Other Paper, Shelburne News and The Citizen. “It’s a disturbing trend we will continue to see, that is unless the Legislature gets serious about transparency and clarifies the state’s public records laws. We will continue to fight for the public’s right to know what its public officials are up to.”

The court case began when Calvin reported in March and April that former Stowe Police Department patrolman Benjamin Cavarretta had left the department under mysterious circumstances, and the Lamoille County State’s Attorney, Todd Shove, issued a so-called Giglio letter — such letters are issued when an officer’s conduct is called into question.

Shove, in the letter, called Cavarretta “untruthful,” specifically when referring to a Dec. 5, 2022, traffic stop he conducted in Montpelier.

On April 17, Calvin filed a public records request with the town, which the town either denied, or produced with such heavy redactions that it was impossible to determine what was in them. Calvin appealed the decision and the town of Stowe sued Calvin and the newspaper.

Justin Silverman, executive director of the New England First Amendment Coalition, said the maneuver is part of a trend he’s heard referred to as a “reverse FOIA” (Freedom of Information Act) request.

“The job of government is to be transparent, and to find ways to comply with public records laws — not sue the requesters to maintain secrecy,” Silverman said. “It’s a very troubling trend that, unfortunately, burdens requesters to the point where public records requests may not be made.”

He noted that not all public records requests are done by news agencies, but said cases like this one where a news agency prevails could send a message to governments that “they’re gonna have a fight on their hands.”

The newspaper’s lawyer, Matthew Byrne, argued in his court filings that the town of Stowe was obliged to produce incident reports involving Cavarretta, specifically documents regarding the Dec. 5, 2022, traffic stop that led to his termination; the termination letter sent to him; any final administrative investigation reports; and court records that the town produced in redacted form.

The latter was particularly egregious, Byrne argued, since those same court records with lines of blacked-out text are easily available, and unredacted, at the courthouse.

“The Lamoille County State’s Attorney said that Officer Cavarretta was ‘dishonest,’” Byrne wrote in his July 5 motion for access filed in Lamoille County Superior Court, civil division. “The people deserve to know why the State’s Attorney drew that conclusion. Yet, the Town of Stowe is hiding the truth behind a mountain of claimed exemptions to the Public Records Act.”

Police chief Donald Hull argued that the town sent “certain documents” regarding the investigation into Cavarretta to the Vermont Criminal Justice Council, and thus couldn’t even confirm or deny such documents existed.

That was despite his initial revelation to Calvin that there was indeed such an internal investigation, “before the lawyers got to him,” as Byrne put it.

The Vermont Criminal Justice Council is a 25-person body currently headed up by former attorney general William Sorrell and a half dozen other governor-appointed council members, along with the state commissioners for Vermont’s public safety, corrections, motor vehicles, fish and wildlife and mental health departments, as well as representatives from various law enforcement, human rights and municipal assistance organizations.

Its job, by statute, is two-fold. One task is to assist local, county and state government with law enforcement training.

The other is to maintain professional conduct standards for law enforcement officers by tracking complaints, adjudicating charges of misconduct and imposing sanctions on bad cops.

It is not, Byrne argues, an “escape hatch” for police departments and towns to send internal investigations to shield them from the public seeking such information. He noted that Vermont law only places a confidentiality requirement on the Vermont Criminal Justice Council and its staff.

“The plain language places no limitation on the Town of Stowe and what it can do with the material that the Stowe Reporter seeks,” Byrne wrote.

In a series of motions over the past month, the town’s lawyers — John Klesch and Beriah Smith of the firm Stitzel, Page & Fletcher — attempted to slow down the proceedings, arguing that the newspaper waited two months after its initial records request to file a public records act “enforcement” lawsuit and was asking the court to “jump the PRA suit to the front of the line,” ahead of the town’s countersuit seeking declaratory judgment.

The town was seeking a ruling on whether Vermont state law regarding the Vermont Criminal Justice Council also applied to the town.

The lawyers argued skipping that part could “unnecessarily expose” the town to paying the Stowe Reporter’s attorney’s fees.

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The Vermont Community Newspaper Group (vtcng.com) includes five weekly community newspapers: Stowe Reporter, News & Citizen (Lamoille County), South Burlington’s The Other Paper, Shelburne News and... More by Stowe Reporter