§ 107. Offender and inmate records; confidentiality; exceptions; corrections
(a)(1) The Commissioner shall adopt a rule pursuant to 3 V.S.A. chapter 25 defining what
are “offender and inmate records” produced or acquired by the Department.
(2) As used in this section, the phrase “offender and inmate records” means the records
defined under the rule required under subdivision (1) of this subsection.
(b) Offender and inmate records are exempt from public inspection and copying under the
Public Records Act and shall be kept confidential, except that the Department:
(1) Shall release or permit inspection of such records if required under federal or State
law, including 42 U.S.C. §§ 10805 and 10806 (Protection and Advocacy Systems).
(2) Shall release or permit inspection of such records pursuant to a court order for good
cause shown or, in the case of an offender or inmate seeking records relating to him
or her in litigation, in accordance with discovery rules.
(3) Shall release or permit inspection of such records to a State or federal prosecutor
as part of a criminal investigation pursuant to a court order issued ex parte if the
court finds that the records may be relevant to the investigation. The information
in the records may be used for any lawful purpose but shall not otherwise be made
public.
(4) Shall release or permit inspection of such records to the Department for Children
and Families for the purpose of child protection, unless otherwise prohibited by law.
(5) Shall release or permit inspection of specific categories or types of offender and
inmate records to specific persons, or to any person, in accordance with a rule that
the Commissioner shall adopt pursuant to 3 V.S.A. chapter 25, provided that the Commissioner
shall redact any information that may compromise the safety of any person, or that
is required by law to be redacted, prior to releasing or permitting inspection of
such records under the rule. The rule shall provide for disclosure of a category or
type of record in either of the following circumstances:
(A) when the public interest served by disclosure outweighs the privacy, security, or
other interest in keeping the record confidential; or
(B) in order to provide an offender or inmate access to offender and inmate records relating
to him or her, unless:
(i) the category or type of record is confidential or exempt from disclosure under a law
other than this section;
(ii) providing access would unreasonably interfere with the Department’s ability to perform
its functions, including unreasonable interference due to the staff time or other
cost associated with providing a category or type of record; or
(iii) providing access may compromise the health, safety, security, or rehabilitation of
the offender or inmate or of another person.
(c)(1) Unless otherwise provided in this section or required by law, the rule required under
subdivision (b)(5) of this section:
(A) shall specify the categories or types of records to be disclosed and to whom they
are to be disclosed, and shall not provide for any exceptions to disclosure of records
that fall within these categories or types except for redactions required by law;
(B) shall specify which categories or types of records relating to an offender or inmate
shall be provided to the offender or inmate as a matter of course and which shall
be provided only upon request;
(C) may limit the offender’s or inmate’s access to include only records produced or acquired
in the year preceding the date of the request;
(D) may limit the number of requests by an offender or inmate that will be fulfilled per
calendar year, provided that the Department fulfills at least two requests by the
offender or inmate per calendar year excluding any release of records ordered by a
court;
(E) may specify circumstances when an offender’s or inmate’s right of access will be limited
to an inspection overseen by an agent or employee of the Department;
(F) may provide that the Department has no obligation to provide an offender or inmate
a record previously provided if he or she still has access to the record; and
(G) shall reflect the Department’s obligation not to withhold a record in its entirety
on the basis that it contains some confidential or exempt content, to redact such
content, and to make the redacted record available.
(2) The Department shall provide records available to an offender or inmate under the
rule free of charge, except that if the offender or inmate is responsible for the
loss or destruction of a record previously provided, the Department may charge him
or her for a replacement copy at $0.01 per page.
(d) Notwithstanding the provisions of 1 V.S.A. chapter 5, subchapter 3 (Public Records
Act) that govern the time periods for a public agency to respond to a request for
a public record and rights of appeal, the Commissioner shall adopt a rule pursuant
to 3 V.S.A. chapter 25 governing response and appeal periods and appeal rights in
connection with a request by an offender or inmate to access records relating to him
or her maintained by the Department. The rule shall provide for a final exhaustion
of administrative appeals not later than 45 days from the Department’s receipt of
the initial request.
(e) An offender or inmate may request that the Department correct a fact in a record maintained
by the Department that is material to his or her rights or status, except for a determination
of fact that resulted from a hearing or other proceeding that afforded the offender
or inmate notice and opportunity to be heard on the determination. The rule required
under subsection (d) of this section shall reference that requests for such corrections
are handled in accordance with the Department’s grievance process. If the Department
issues a final decision denying a request under this subsection, the offender or inmate
may appeal the decision to the Civil Division of the Superior Court pursuant to Rule
74 of the Vermont Rules of Civil Procedure. The court shall not set aside the Department’s
decision unless it is clearly erroneous. (Added 2015, No. 137 (Adj. Sess.), § 5, eff. May 25, 2016; amended 2017, No. 192 (Adj. Sess.), § 1, eff. May 30, 2018.)