Journalists bristle at a new police policy in Vermont

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The police beat is tough. The hours are unpredictable and often long, and the reporting requires a good grounding in criminal law and procedure. And a study published this year found that police PIOs are zealous in their efforts to control the narrative about their departments.

Covering the Vermont State Police is no exception. It recently revised a “Press Release and Public Information Policy” that provides guidance for police officers regarding how, what, and when information should be given to the press and public. The revisions came in July, and local journalists aren’t happy.

“The policy leaves it up to individual state troopers to determine what is news and what isn’t,” Michael Donoghue, the executive director of the Vermont Press Association, tells CJR. “Crimes, including sexual assaults, armed robberies, arsons, burglaries, embezzlements, drugs, and more are not required to be disclosed. Vermonters want to know if they are safe in their homes and out on the streets.”

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Created over 30 years ago, the policy has been revised five times. And the conflict today is about the latest revision process as much as what it produced. While the police say they consulted the press (the state public-safety head wrote in a July letter-to-the-editor that the police “met with and had several discussions with and solicited input from” local journalists), the press association didn’t receive a final draft of the revisions before they were implemented.

The policy includes overbroad and ambiguous language that undermines the department’s commitment to transparency.

Donoghue says the formal consultation amounted to one meeting with two officials. Another press association leader then asked to meet with the public-safety head, who hadn’t attended the meeting except to offer a brief welcome. That request wasn’t granted, and there was no follow-up meeting involving the press.

“The purpose of the one … meeting was nothing but show on the part of the state police so they can claim they included the media in discussions about the new policy,” Donoghue says. “It was merely window dressing.”

After the revisions were implemented, the press group sought and received a meeting with Gov. Phil Scott to discuss its concerns. Eighteen publishers and editors attended, from all over the state. Donoghue says the governor and his staff asked for time to review the policy and consider their options. Since then, the press has learned that more revisions are underway (“We don’t know what they are,” Donoghue says). Scott Waterman, the state police PIO, confirms that revisions are being made — but he didn’t answer my questions about the substance of the revisions or when they’d be done.

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So what’s the problem with the latest version of the policy? Well, first, it’s important to keep in mind what the policy is — and isn’t. Its purpose, again, is to provide guidance to police officers on information sharing. It doesn’t trump the state FOI law or the state or federal constitution. But guidance documents like this one are nonetheless important, because they tell front-line officers how to interact with journalists and what information to give them that is within the department’s discretion.

That said, here’s a sample of the policy’s problematic new provisions:

• Press releases will be issued as soon as practicable for significant incidents of public interest, including, but not limited to arrests, citations, road closures, hazardous scenes and motor vehicle crashes.

The policy helpfully defines “public interest,” but this provision also uses the word “significant,” which is not defined anywhere — requiring an officer to make a judgment, without guidance, about what qualifies as “significant.” That allows the officer to play editor.

• Information that Should Not Be Released: Person(s) name or information that could identify the victim of a sex crime, assault, including domestic assault, burglary, robbery or any crime against the person.

 Read literally, that means the police shouldn’t release identifying information about a person assaulted by, say, a police officer — or a staff assistant robbed by the mayor. Or the seventh burglary victim living in the same area, making it impossible for others there to take precautions. The list goes on. These are all matters of public concern that would impact public safety and raise questions about public officials. But if sharing information about them would also reveal a victim’s identity, the policy says it should not be released.

• Information that Should Not Be Released: The identity of any person who is a witness to or victim of a crime, or any victim or witness information that could jeopardize the safety of a witness or otherwise impede an investigation.

Withholding information for safety or investigative purposes is reasonable and not unusual, but otherwise this is even broader than the prior provision with regard to “victim of a crime” — and problematic for the same reasons.

I asked Waterman several specific questions about the policy (and I criticized parts of it), and in response he sent me a general written statement. Here’s an excerpt:

The Vermont State police has been and is committed to transparency and firmly believes that the public has the right to be fully informed regarding our activities. … Under this policy, Vermont State Police personnel are required to issue public information releases … in all arrests and other matters of public interest. … At the same time, the policy must also strike a reasonable balance between, on the one hand, the public’s right to know and, on the other hand, the privacy of crime victims, the integrity of criminal investigations and the protection of an offender’s Constitutional right to a fair trial.

[The policy] is designed to keep the public fully informed about the activities of the Vermont State Police and make a Trooper’s public information release obligations clear and more consistent. This is extremely important in light of the number of press releases the VSP issues each year. Between June 1, 2016 and May 31, 2017, the Vermont State Police issued 5,268 public information/press releases – approximately 14 per day – each of which provided the public with information about the Vermont State Police activities.  

Yet the policy includes overbroad and ambiguous language that undermines the department’s commitment to transparency. Those provisions, among others, are flawed on their face and should be made more specific and narrow. Perhaps they’re the subject of the ongoing revisions. Unfortunately, we don’t know because Waterman wouldn’t say.

When I asked Donoghue about the police’s statement, he said, “It never addressed the wiggle words and terms that they have added into the policy to allow troopers to avoid telling their bosses — the taxpayers of Vermont — what is happening in the towns they are paid to protect.”

He went on: “State police note the department averages 14 news releases a day — and those include many arrests for driving while license suspended and other minor offenses. With about 325 sworn officers, the question has been asked, what are the other 311 state troopers doing for taxpayers that day? Did they investigate a crime? Did they solve a crime? … Did they do something positive in the community?”

Under the revised policy, some of those questions will remain unanswered.

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.