No ‘High Level Of Privacy’ In Viewing Porn On Work Computer

Like many public records laws, Vermont’s Public Records Act exempts from disclosure “personal records” in which employees may have privacy interests. The limits of the exemption were recently tested in a case involving the Rutland Police Department.

The Rutland Herald learned in 2009 that Rutland Police Department computers had been used to view and store pornography. Three employees were involved, referred to as Employees #1, 2, and 3. As part of its investigation, the Herald requested records from the City, including the complete record of a 2004 internal investigation into Employee #1’s alleged viewing of pornography at work, as well as letters from the Police Chief relating the employee’s status pending completion of the investigation and then imposing discipline following the investigation. The Herald also asked for similar materials from a 2010 investigation involving Employee #2 as well as materials related to a 2010 investigation of Employee #3 for viewing pornography at work.

The City resisted disclosure of the materials, and the dispute wound up in the Vermont Supreme Court. The Court found that the “personal records” exemption did not apply to the requested materials.

The City argued that the records should be exempt because their disclosure would subject the employees to embarrassment, harassment and disgrace, and possibly to lost friendships. The City also contended that its employees had a privacy interest in viewing pornography at work, and that employees must have some expectation of privacy while performing “work-related functions,” whether allegedly improper or not.

The Court found that “we need not decide precisely what privacy interest, if any, employees have in viewing and emailing pornography at work. Assuming that the employees have some privacy interest at stake, we agree with the trial court that it is heavily outweighed by the public interest in disclosure.

“There is a significant public interest in knowing how the Police Department supervises its employees and responds to allegations of misconduct. This is particularly true given the repeated instances of similar misconduct within the Police Department over a five-year period, as well as the apparent scope of the misconduct. Internal investigation records reveal that one employee downloaded between 5,000 to 10,000 pornographic images onto his work computer, including possible child pornography, and an investigator estimated that it would take one week of constant viewing to review all of these images.

“Certainly, one cannot reasonably expect a high level of privacy in viewing and sending pornography on work computers while on duty at a public law enforcement agency. To the extent that such activities are considered a personal pursuit, the purported claim to privacy in exclusively personal pursuits enjoyed at public expense on public time is one of those situations where, as recognized by the Legislature, the employee’s right to privacy must properly give way to the public’s need for the information to review the action of a governmental officer. This is not a personnel matter where the officers’ execution of duty is called into question or subject to disciplinary correction; it is instead a matter of a personal frolic entirely unrelated to the officers’ jobs except for the coincidence that it occurred on public time with public property.”

Rutland Herald v. City of Rutland, 2013 WL 5583262 (Vt. 2013).