issues

Response to the Vermont ACLU’s “Questions for Candidates”

The Vermont chapter of the ACLU has posted several questions to their website for candidates to answer. I have included them and provided my answers below. My usual disclaimer about these being my opinions and my promise to Washington County citizens still applies.

Why Aren’t Police Records More Accessible?

Great progress was made in improving access to most public records through the passage in 2011 of Act 59. Left behind, though, was greater access to police records. Legislative study committees have not taken up the issue, and a string of Vermont Supreme Court cases in early 2012 made things worse. The court said that the intent of the law as now written is clear: its intent was clear: “to permanently and categorically exempt all criminal investigatory records from public disclosure.” The solution? Change the law. What to? Adopt the federal FOIA (Freedom of Information Act) standard of “access absent harm” — information is public unless it can be show harm will result from disclosure.

QUESTION TO CANDIDATE:

Do you support changing the police records exemption in the state’s public records law so all police records are not categorically withheld from the public? Specifically, do you support adoption of a standard of “access absent harm,” which is used in the federal FOIA law and by 21 states? The standard says information is public unless it can be show harm will result from disclosure.

I emphatically support such a change, and I think the change should apply to other governmental organizations, not just police! The federal FOIA, while not without its wrinkles, is a solid move in the right direction.

No More Violations Of The Open Meeting Law!

Vermont’s open meeting law was written about the same time as the state’s public records law. The intent was the same — to make sure the public had access to information and deliberations concerning the public’s business. The law states that public bodies must meet in public. A limited number of exceptions allow closed meetings in executive sessions. Public bodies have increasingly misused or abused the executive session provisions. Some boards spend up to a third of their meeting time behind closed doors. There is no effective means of enforcing violations of the open meeting law. A citizen must go to court to challenge a closed session, and must pay court filing fees and costs. (For more info, see the post, The Misuse and Abuse of Executive Sessions, on our Civil Liberties Blog.)

QUESTION TO CANDIDATE:

How can we put teeth into enforcement of the state’s open meeting law? We read of many alleged violations, but there’s no effective way to enforce the law. Would you support reimbursement of the filing fee ($267.50) and the cost of hiring an attorney for someone who challenges a closed meeting, or another meeting law violation (such as inadequate warning of meetings), takes the issue to court, and wins?

Yes, that seems like a reasonable step to encourage more open meetings.

We Need To Know If Police Are Profiling By Race

Racial profiling has been a flashpoint issue in Vermont for many years. Police say they don’t profile; members of various minorities insist that they do. We’ll never get an answer to whether profiling occurs unless police agree to collect so-called “stop data” when they make stops. Some Vermont police are willing to do this (the Vermont State Police, for example), but others aren’t. The legislature passed a law in 2012 encouraging police to collect stop-data, but that may not be enough. Only one other state doesn’t require police to collect stop-data; that state is Mississippi. (For more info, see the post, Fighting Racial Profiling, on our Civil Liberties blog.)

QUESTION TO CANDIDATE:

Would you support a law requiring police to collect basic “stop data” so we can determine if profiling is occurring in Vermont?

Yes, provided that the administrative burden isn’t too heavy. That is, it should take a few extra seconds to document this stop data, not multiple minutes or “Form X signed and filed in triplicate”. Data is good, but not when it gets in the way of doing one’s job.

Tasers: Where Are The Standards For Their Use?

More and more police departments around Vermont are buying, and using, Taser stun guns. There have been numerous stories of possible misuse of Tasers, the most recent this summer in Thetford when a disturbed man who had epilepsy died after being Tased by police. Two years ago in Barre a homeless woman was Tased by police at a local convenience store because she refused to move on. Yet there are no uniform standards regulating Taser use in Vermont. (For more info, see the “Focus” article on Tasers that ran in our January 2008 newsletter.)

QUESTION TO CANDIDATE:

Tasers are dangerous weapons. They should only be utilized in very limited circumstances. Why doesn’t the state have consistent standards on Taser use and make sure the standards are followed? Would you support development of statewide use-of-force standards, particularly regarding Tasers?

This also seems like a reasonable step – as our technology (and weaponry) changes, our standards and training should change.

Police Professionalization: Oversight Must Improve

Vermont doesn’t have a way of policing police. We license teachers, lawyers, doctors, plumbers, landscape architects, and beauticians, but not law enforcement officers. Vermont needs a state-level police licensing board, where licenses are reviewed on a regular basis. One-time certification at the Vermont Police Academy isn’t enough — neither are departmental reviews or select board oversight. The public needs to be able to file a complaint with an impartial body, not an officer’s supervisor or employer. And investigations of misconduct shouldn’t be kept secret. Sanctions taken against officers should be published, just as sanctions against teachers are published. A bill was introduced in 2012 to create a police licensing system. No action was taken; it was referred to the state’s Law Enforcement Advisory Board for study. (For more info, see the “Focus” article on Police Accountability that ran in our January 2010 newsletter.

QUESTION TO CANDIDATE:

Would you support creation of a state licensing board for police officers?

Police officers are professionals, and should be subject to basic oversight through licensing. Again, this should not become a tedious process (as it can be in some other professional relicensing).

Police Access to Personal Data: Get a Warrant!

One of the flashpoints of the 2012 legislative session was a proposal to give police warrantless access to Vermonters’ prescription drug information (Schedule II through IV drugs) in the state Health Department’s electronic prescription drug database. The ACLU fought the proposal, and won — for now. Proponents of the measure — which includes Gov. Peter Shumlin — have vowed to introduce it again in 2013. The issue really goes beyond prescription drug records. It’s police access to other medical records, to cell phone tracking records, to GPS readings, to smart meter data, and to digital records in any kind of database. In short, it’s about the protection of privacy in a digital age. That privacy can, we accept, be breached when there’s evidence someone has committed a crime and police get a warrant, based on probable cause, from a judge. But it can’t be breached simply for convenience. This issue is complicated by a 45-year-old law, passed long before basic medical records privacy laws were put in place, that allows any police officer in the state to go into any pharmacy in the state and look at anybody’s prescription drug records for any reason — no warrant, subpoena, or anything else needed as justification. We think the law wouldn’t stand a chance of passage if introduced today. (For more info, see the “Focus” articles on Data Aggregation and on Searches Without Warrants.)

QUESTION TO CANDIDATE:

Do you think police should get a warrant to access individuals’ prescription drug records in the state Health Department’s prescription drug database?

Digital privacy is one of the issues I am most concerned about, and I have been an outspoken opponent of the recent SOPA, PIPA, and CISPA bills. As a computer scientist and computer security specialist, I can speak authoritatively about how the misuse of private data (not just by law enforcement) can have serious effects on innocent people. Law enforcement officers at all levels should have a warrant to access any individual’s private data, prescription drug records included.

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