ACLU of Vermont takes Essex County Sheriff's Department to court in public records dispute

The Vermont chapter of the American Civil Liberties Union is suing the Essex County Sheriff's Department in a public records dispute related to the department's compliance with Vermont's fair and impartial policing policy.

In the lawsuit filed Monday in Washington County Superior Civil Court, the ACLU of Vermont alleged that the sheriff's department would not electronically send the organization the documents it seeks. Instead, the department wants the ACLU to “inspect” the records in person.

The organization filed a public records request, it said in the lawsuit, “to better understand (the Sheriff's Department's) practices in sharing information with federal immigration authorities.”

Nothing in the state's public records law allows the custodian of a public record to “dictate” that a person seeking a public record must first “inspect” it, wrote Lia Ernst, legal director of the ACLU of Vermont, in an email to Essex County Sheriff Trevor. Colby before finally taking legal action.

“And for good reason,” added Ernst.

“Perhaps,” Ernst writes, “an applicant is unwilling or unable to incur the time and expense of traveling long distances to inspect records (particularly because applicants do not have to necessarily be residents of Vermont or even the United States), or perhaps a requester who believes they have been the victim of official misconduct and would not wish to review records relating to this incident at the very location where the officer is working.

The ACLU of Vermont, according to the lawsuit, submitted a public records request in January 2024, following the publication of a December 2023 news story by the Community News Service, a student journalism organization based in University of Vermont.

In that article, Colby outlined his concerns about the expansion of the state's fair and impartial policing policy.

“He stressed that his priority is ensuring the safety of residents in his jurisdiction, and residents in his relatively remote part of the state are shaken when they see unfamiliar people,” Community News Service wrote. “Up there,” he said, “everyone knows everyone. »

“Colby said he would probably call immigration authorities after a traffic stop if he thought the people in the car were undocumented,” CNS reported.

If Colby made such a call, according to the ACLU, it would “likely violate” the fair and impartial policing policy that prohibits contact between local, state and county law enforcement with federal immigration authorities, except in certain circumstances.

In its records request, the ACLU sought documents related to a number of federal agencies — including Immigration and Customs Enforcement, Homeland Security Investigations, and Customs and Border Protection — since January 2022.

Colby told VTDigger on Tuesday that he couldn't say much until he had a chance to consult with legal counsel.

“If you look at their file, we made the files available to them in the office for inspection and copying in our office,” Colby said, “and they refused to come.”

When asked why he wasn't willing to send the information electronically, Colby responded, “That's part of what I didn't want to get into a lot of, but initially there were redactions made and there must be explanations for these redactions. why are they here.

Since then, according to Colby, the situation has changed.

“One of the federal partners emailed me and said they didn't think I could release any of my documents with their information,” Colby said. When asked which federal entity had made such a request, Colby responded, “I will not disclose it at this time.” »

In a series of emails documented in the lawsuit, Colby made clear that the nearly 50 pages of responsive documents were available for in-person review, while the ACLU argued they should be sent electronically.

Ernst said Tuesday that before filing the lawsuit, she sent Colby an email outlining her organization's legal arguments.

“It’s based on sort of a combination of provisions of the public records law as well as case law,” Ernst said.

In her email to Colby, Ernst wrote: “The Public Records Act treats requests for inspection of records held by an agency separately from requests for copies of those records – and gives applicants, and not the custodians of the files, the choice of the path to follow. »

Lauren Hibbert, Vermont's deputy secretary of state, said Tuesday she could not comment directly on a pending lawsuit.

“I will tell you that the law as it is written says you can inspect or copy records,” Hibbert said.

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