A judge has ruled that documents from a private investigator’s report on harassment allegations against an Essex official are subject to the public records law, rebuking the town’s argument that the law fails to cover the report because its attorney possesses it.
Judge Helen M. Toor’s Oct. 16 ruling was in response to a motion for judgment brought by former selectwoman Irene Wrenner, who is suing the town over its “purposeful concealment” of billing records and reports from a private investigator hired to probe her complaint against an unnamed official in 2017.
The judge denied the motion’s request to force the town to hand over the report, saying neither party has offered enough factual evidence to allow her to adjudicate the exemptions raised by the town; Wrenner’s attorney has yet to even attach a copy of her public records request or the town’s written response, the judge said.
But Toor did use the opportunity to weigh in on the question of whether the public records act applies to the report. She said following the town’s logic — that the law falls short of documents created by a subcontractor — would allow governmental agencies to delegate responsibilities to private entities whenever it wants to withhold records from disclosure.
“The investigation was done as part of the town’s business, and does not change status merely because it was created by a private entity and is not kept in a town file,” Toor wrote.
Municipal manager Evan Teich declined to comment on the ruling, citing a town policy of not speaking publicly about on-going litigation. He said the town “may wish to comment” when the case is complete.
Produced by private investigator Bill Burgess, the report summarized an inquiry that began after Wrenner alleged “gender-based unprofessional conduct” by a high-level town employee. The Reporter broke news of the investigation in early 2018 as town officials were silent on the matter, not once discussing it publicly or explaining how the town racked up $10,000 in attorney fees on an undisclosed legal matter.
Public records showed the claims trace back to an October 2017 email in which Wrenner told an undisclosed party that at least two women had been subjected to the town official’s “abusive” behavior. Burgess investigated over the next two months, speaking with Wrenner, the accused and at least one town employee, public records show.
In December 2017, Burgess shared his final report with town attorney Bill Ellis, who informed Wrenner and the accused of his decision in December 2017. “Taking all facts you allege as true,” Ellis wrote to Wrenner, “they are insufficient to establish that [redacted] sexually harassed you.”
The selectboard never officially addressed the matter publicly, and in the months following the investigation’s conclusion, it appeared the topic might fall off the radar. But in the summer of 2018, Wrenner sued the town and effectively outed herself as the accuser.
Wrenner told the Reporter at the time that she believes the alleged conduct defied multiple clauses in the town’s sexual harassment policy, and that she’s seeking the report to understand the investigative process and ensure Burgess accurately captured her testimony.
Speaking to the Reporter last week, she likened it to looking over meeting minutes before they’re finalized, and said town’s refusal to share the investigator’s notes makes her question whether he took any at all.
“It doesn’t behoove me personally, politically or in any other way to have these become public if there’s something there,” she said of the report. “But if there’s nothing there, that also speaks volumes to whether justice will ever be served.”
Vermont law defines public records as “any written or recorded information, regardless of physical form or characteristics” produced or acquired during a public agency’s business. The law includes a breadth of exemptions, but the statute must be “liberally construed” in favor of disclosure, Toor wrote, with the burden of proof on the town.
Responding to Wrenner’s lawsuit, the town cited several exemptions, characterizing the report as a work product protected by attorney-client privilege and arguing that publicizing the “baseless” allegations would violate the official’s right to privacy, harming his “reputation and good name.” The town also pointed to a ruling in a previous public records case, claiming it backed up its arguments.
But Toor said in the court in that case clearly took no stance on whether the documents qualified as public records.
“Defendant’s counsel apparently did not actually read the one case he cites on this issue,” Toor wrote, referring to Rutland-based attorney Kaveh S. Shahi, of Cleary, Shahi & Aicher, P.C., who’s representing the town because of Ellis’ connection to the case.
Toor said the parties can file motions for summary judgment within 30 days of her ruling, unless they request a different schedule. Those motions will likely include arguments over whether the public’s interest outweighs any exemptions.
For her part, Toor offered a clear argument for why the public would have an interest in how the town supervises employees and responds to misconduct allegations.
Quoting the Vermont Supreme Court, she wrote that such records show the public “whether that agency is responsive to specific instances of misconduct, whether the agency is accountable to itself internally, [and] whether it challenges its own assumptions regularly in a way designed to expose systemic infirmity in management oversight and control.”
Toor’s ruling comes well over a year after Wrenner first filed the public records case. The former selectwoman said the judge’s decision was encouraging, and while she has given up hope that anything will come of her allegations, she remains motivated to see the case through to its end.
“The town was betting that I would just walk away,” she said. “I guess people here don’t know me as well as they think they do, because I’m a little more tenacious than that.”