4 gets; State of Vermont Department of Public Safety 103 South Main Street Waterbury, Vermont o567r-2101 www.dps.state.vtus October 5, 2016 Ms. Elizabeth Murray Burlington Free Press 100 Bank Street, Suite 700 Burlington, VT 05402 RE: Appeal of Public Records Request Denial Dear Ms. Murray: I write in response to your October 3, 2016 appeal of the Vermont State Police’s denial of your September 19, 2016 request for “[ajny and all audio and visual recordings of an incident on Sept. 16, 2016, on Hickok Street in Winooski that show interactions between police and Jesse Beshaw/.]” The Department has located body-camera video, acquired from the Franklin County Sheriff?'s Office, which is responsive to your request. The records that you request deal with the detection and investigation of crime. As set out below, the Vermont State Police properly withheld these records, As you correctly acknowledge in your letter, “the law states that the materials [at issue] may be withheld[.}” In addition, I have reviewed the matter, and have confirmed with the Attorney General's Office and with the Chittenden County State's Attorney's Office their determination that production of the requested records could reasonably be expected to interfere with enforcement proceedings. Specifically, the release of the requested information, before the completion of the investigation, could ‘undermine the effectiveness of said investigation. For example, if the records were to be released publicly before the conclusion of the investigation, investigators would be unable to discern whether a ‘witness's aecount of events was based on firsthand knowledge, or based on the video. Investigators ‘would not have the opportunity to gauge the witness's reactions to viewing the records for the first time, or the ability to assess the accuracy and completeness of the witness's initial account of events. In short, release of the records could reasonably be expected to compromise the integrity of the investigation, thereby interfering with enforcement proceedings. ‘The requested records are therefore exempt pursuant to 1 V.S.A, § 317(6)(5)(A)Q@), as they deal with the detection and investigation of crime, and their production could reasonably be expected to interfere with enforcement proceedings. See Elec. Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 119 #~ VERMONT Commissioner Tel 802 244 -8718 FAX 802 241-5377 Director Vermont State Police Tel 802 244-7345 FAX 802 241-5551 Director Criminal Justice Services Tel $02 244-8786 FAX 802 241-5557 Director Vermont Emergeney Management Tel 802 244-8721 AX 802 241-5556 Legal Counsel Tel 802 244-6941 FAX S02 241-5977 Internal Affairs Tel 802 244-5104 FAX 802 241-5377 Administrative Services Tel 802 244-8762, FAX 802 241-53 Director of Fire Safety Tel 802 470-7561 FAX B02 479-7562(D.D.C. 2005) (finding that “release of [certain information during the course of an investigation] could undermine the effectiveness” of the investigation); of. Judicial Watch v. DOJ, 306 F. Supp. 2d 58, 75- 76 (D.D.C. 2004) (observing that release of documents during course of investigation could damage agency's subsequent ability to obtain information). In addition, prosecutors have informed the Department that a prosecutor must “exercise reasonable care to prevent investigators, [and] law enforcement personnel [. ..] in the employment or , under the control of the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or [RJule [3.8].” R.P.C. 3.8, The rules at issue probibit “extrajudicial statement{s] that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” R.P.C. 3.6. Here, until the investigation is complete and a charging decision is made, prosecutors have informed the Department that release of the requested records would have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. The Department takes such concems seriously, and has determined that we should abide by the prosecutors’ requests to refrain from making extrajudicial statements. Cf 1V.S.A. § 317(¢)(3).. ‘The Department's decision that the records at issue are currently exempt from release is, consistent with the Department's decision regarding release of the video in the 2014 ease involving Eric Jackson that you cite in your appeal. In both cases, I examined the requested records, consulted with prosecutors, and made determinations based on Vermont's access to public records statutes. In the 2014 case involving Jackson, release of the records to the Caledonian Record was appropriate, as the Vermont State Police had concluded its investigation into the matter. The Vermont State Police, the State's Attomey, and Defense Counsel, all agreed that release of the video would neither materially prejudice an adjudicative proceeding, nor interfere with the completed investigation. The same eannot be said in the instant case at this time, The Department recognizes, however, that the relied-upon exemption is not indefinite, Accordingly, you are free to refile your request for the materials at issue at a later date, after the conclusion of investigative andlor adjudicative proceedings, In the event that the Department receives a subsequent request, it will consider, among other factors, individual privacy interests pursuant to 1 VS.A. § 317(e)(5)(D), 1 V.S.A. § (C)(5)(AVGii), and LV.S.A,§317(6)(7). The Department reserves the right to apply any and all appropriate exemptions to any subsequent request, See Dickerson v. DOJ, 992 F.2d 1426, 1430 n.4 (6 Cir, 1993) (explaining that "when exemption (7)(A) has become inapplicable," records may still be protected under other exemptions). Given the above, the Vermont State Police properly determined that the records you have requested are exempt from disclosure at this time. Please accept this as notice that you have the right to appeal my decision to Superior Court pursuant to 1 V.S.A. §319, Sincerely, & W SE Commissioner = gS. VERMONT Commissioner Tel 8o2 244 -8718 FAX 802 241-9977 Director Vermont State Police Tel 802 244-7345 FAX 802 241-5551 Director Criminal Justice Services Tel 802 244-8786 FAX 802 241-5557 Divector Vermont Emergency Management Tel 802 244-8721 FAX 802 241-5556 Legal Counsel ‘Tel 802 244-6041 FAX Bo 241-5377 Internal Affairs Tel 802 244-5194 FAX 802 241-5977 Administrative Services Tel 802 244-8763 FAX Bon 241-5559 Dinector of Fire Safety Tel Bo2 479-7561 FAX 802 479-7562