Russell Bovit Missing Person Investigation (Vermont State Police)

June 10, 2022

Jillian Kuzma
MuckRock News
Via email: requests@muckrock.com<mailto:requests@muckrock.com>

Dear Ms. Kuzma,

I am writing regarding your public records requests received October 27, 2021, requesting records related to the missing persons investigation of Russell Bovit, who went missing in Vermont on May 11, 1986.

While the records you requested involve an investigation that has been open for many years, the possibility of criminal activity has not been ruled out. Releasing details of the investigation before prospective enforcement proceedings can be completed could hinder law enforcement's efforts to resolve this case.

Therefore, the records you have requested are exempt from release under Vermont's Public Records Act (PRA). These records are relevant to an open investigation related to a prospective law enforcement proceeding. According to the PRA, specifically 1 V.S.A. § 317(c)(5)(A), concerning "[r]ecords dealing with the detection and investigation of crime," records that "could reasonably be expected to interfere with enforcement proceedings" are exempt from public release. See 1 V.S.A. § 317(c)(5)(A)(i).

The PRA states that, regarding records dealing with the detection and investigation of crime, "the courts of this State will be guided by the construction of similar terms contained in 5 U.S.C. § 552(b)(7) (Freedom of Information Act) by the courts of the United States." See 1 V.S.A. § 317(c)(5)(C). Exemption 7(A) of the Freedom of Information Act (FOIA) exempts "records or information complied for law enforcement purposes," "to the extent that production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A) (2012 & Supp. V. 2017). While the law enforcement proceeding related to case number 06A304862 is prospective in nature, U.S. courts have held that records that have been identified as relevant to prospective law enforcement proceedings may be exempt from release under the Freedom of Information Act ("FOIA"). See NLRB v. Robbins Tire & Rubber Co., 437 U.S. at 224 (finding that "Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations"); Performance Coal v. U.S. Dep't of Labor, 847 F. Supp. 2d 6, 16 (D.D.C. 2012) (agreeing with agency that disclosure could permit interference with ongoing criminal investigation by giving important information to potential witnesses or defendants); Int'l Union of Elevator Const. Local 2 v. U.S. Dep't of Labor, 804 F. Supp. 2d 828, 833 (N.D. Ill. 2011) (recognizing that law enforcement agencies have "legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage" when presenting case (quoting Robbins Tire, 437 U.S. at 224)); Elec. Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 119 (D.D.C. 2005) (holding that "release of this information could undermine the effectiveness" of agency's investigation); 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 ability to obtain information); Judicial Watch v. FBI, No. 00-745, 2001 U.S. Dist. LEXIS 25732, at *16 (D.D.C. Apr. 20, 2001) (explaining that "[a]lthough no enforcement proceedings are currently pending, the FBI has represented that such proceedings may become necessary as the investigation progresses"). Thus, the exemption applies when an investigation could be harmed by the premature release of information or when disclosure could impede an investigation prior to the enforcement proceeding.

Courts have determined that Exemption 7(A) also applies to long-term investigations and remains applicable to dormant investigations. See Nat'l Pub. Radio v. Bell, 431 F. Supp. 509, 514-15 (D.D.C. 1977) (explaining that although investigation into death of nuclear-industry whistleblower Karen Silkwood is "dormant" . . . disclosure "presents the very real possibility of a criminal learning in alarming detail of the government's investigation of his crime before the government has had the opportunity to bring him to justice."); Dickerson v. DOJ, 992 F.2d 1426, 1432 (6th Cir. 1993) (affirming district court's conclusion that FBI's investigation into 1975 disappearance of Jimmy Hoffa remained ongoing and therefore was still "prospective" law enforcement proceeding); Davoudlarian v. DOJ, No. 93-1787, 1994 WL423845, at *2-3 (4th Cir. Aug. 15, 1994) (unpublished table decision) (holding that records of open investigation of decade-old murder remained protectible).

We believe that, while the record you requested involves an investigation that has been open for several years, it involves an unsolved homicide, and its release could result in a criminal still at-large learning details of the investigation before enforcement proceedings can be completed.

We hope that this information is helpful to you. If you believe that a record has been withheld in error, please feel free to call me at the number below. Please be advised that you may file an appeal. If you choose to file an appeal, we request that you do so in writing to:

Commissioner Michael Schirling
Department of Public Safety
45 State Drive
Waterbury, VT 05671

Thank you,

Traci Leibowitz
Public Records Request Specialist
Department of Public Safety