In Sunshine Wars, Some See Attorney General as "Dark Lord of Secrecy"
Courtesy of Mary Kay Swanson
Attorney General Bill Sorrell
Vermont Attorney General Bill Sorrell knows how some government watchdogs perceive him, and it’s not as a poster boy for transparency.
“In some situations, I’m considered to be the dark lord of government secrecy,” Sorrell told the House Committee on Government Operations last month in testimony on an open-records bill.
As the state’s top lawyer, Sorrell is tasked with defending government agencies that are sued for withholding records from the public. And as the top law enforcer, he’s also the guy who investigates the police when officers are suspected of wrongdoing.
A recent string of scandals involving Vermont law-enforcement officers — from a drug-addicted police chief in Vergennes to cops accused of downloading child porn — have led to charges that Sorrell is putting privacy before the public’s right to know.
“It’s a pretty consistent impression that Sorrell is not forthcoming with information,” says Allen Gilbert, executive director of the ACLU of Vermont, which has locked horns with Sorrell in public-records cases.
In the last year, Sorrell has argued against releasing records in numerous high-profile freedom-of-information lawsuits on grounds that they would compromise investigations or unfairly implicate the innocent. He sought, unsuccessfully, to withhold records from the ACLU-VT detailing how police use cellphone data to track suspects without a warrant. The records revealed that an assistant attorney general and a Newport detective had engaged in the practice at least four times combined.
He also fought, and failed, to stop the release of State Auditor Tom Salmon’s drunk-driving arrest video, which captured an intoxicated Salmon telling the trooper, “You know I’m the state auditor, right?” And he is resisting the Rutland Herald’s demands for files from his investigation of state police personnel accused of downloading child porn — even though the case is closed and the sole suspect is dead.
For his part, Sorrell defends his track record on transparency and says the “dark lord” reputation is unfair and unearned. During a sit-down in his Burlington office last week, Sorrell, dressed casually in Carhartt-style work pants and an open-collared shirt, likens his job to that of a criminal public defender.
“How many people blame public defenders for defending accused murderers?” Sorrell asks, adding that he’s simply upholding the public-records act as written. “It doesn’t put me in the most politically correct situation, defending denial of access to records.”
Sorrell argues that the 200-plus exemptions written into Vermont’s open-records law — including one for criminal investigative files — exist to protect the privacy of “individual Vermonters,” adding, “It’s not to protect cops and prosecutors from having someone look into our business.”
If criminal files were public, Sorrell says, innocent people who were questioned as suspects would be unfairly maligned, and graphic evidence such as autopsy photos could end up on “shock” websites, revictimizing the families of crime victims.
Government watchdogs such as Gilbert fault Sorrell for this all-or-nothing view of public records. Instead of withholding sensitive records wholesale, argues Gilbert, Sorrell could release some documents or simply redact the names of witnesses and confidential informants.
What would be even better, Gilbert says, is if Sorrell adopted federal standards on public records that say documents can only be withheld if a government agency can show that making them public would do specific harm — outing a confidential informant, depriving someone of a fair trial or invading personal privacy, for instance.
“I think the attorney general has dug in his heels, and he is on the side of releasing as few documents as they need to and nothing more,” Gilbert says.
Nothing in Vermont law explicitly prohibits the release, or partial release, of police investigative files, Sorrell and other lawyers say. The statute simply says such records are “exempt” from disclosure. In fact, Sorrell did open his files after Brattleboro police fatally shot a knife-wielding schizophrenic man named Robert “Woody” Woodward during a Sunday morning church service in 2001. As a result of witness accounts that cast doubt on the cops’ official version of events, Sorrell released transcripts and other records in the hope of quelling public outrage.
“Probably that was a big mistake on my part, because then I get criticized the next time I didn’t release similar files from a police shooting,” Sorrell told the House committee on February 17.
To Gilbert, that case demonstrates that Sorrell “thinks he can make a decision when to release and when not to, based on how he feels the reaction is going to be. That’s got nothing to do with whether a record is public or not.”
Sorrell has sought to dispel the notion that government routinely denies access to information. As evidence, he cites an analysis by his office concluding that state agencies fulfilled more than 98 percent of the roughly 5400 records requests received between 2008 and 2010. The remainder were denied either in part or in full because the inquiries fell under one or more exemption. Notably, Sorrell’s figures don’t capture any records requests made to municipalities.
Gilbert, however, remains “really skeptical” about Sorrell’s figures after finding that the attorney general’s records database listed ACLU requests as “fulfilled” even though the civil rights group was still awaiting the information.
“If that’s just us, we have no idea what other things are being missed or what other things are being portrayed as fulfilled,” Gilbert says.
In the Rutland Herald case, the newspaper is seeking results from a probe — conducted by state police and the attorney general — of Vermont Police Academy employees suspected of possessing child porn. One of the accused, training coordinator David McMullen, committed suicide the day after authorities executed a search warrant on his house. Several other state employees were implicated in an email chain, but in a press release six months after the suicide, Sorrell cleared all but McMullen of wrongdoing.
Robert Hemley, a Burlington-based lawyer who is representing the Herald, says the newspaper wants the files for two reasons: so the public can have confidence that police investigated their own thoroughly and fairly; and because the information contained in the files may be newsworthy. After losing in Washington County Superior Court last fall, the newspaper’s lawyers will argue the case on appeal before the Vermont Supreme Court on March 23.
Sorrell’s testimony to the legislature concerned H.73, an open-records bill supported by an array of media and open-government organizations that would make some small but important changes in Vermont’s statutes. The attorney general told the committee he would back some of the reforms proposed in the bill, which passed in committee last week. Meanwhile, he’s staying focused on job No.1 — winning cases — even if it means sometmes withholding information from the public.
“I’m sorry, but I have a job to do,” Sorrell told the committee. “If we’re going to be in court, we want to win.”