In re VSP-TK / 1-16-18 Shooting (Gray Television, Inc., Appellant)
No. 2018-392
Supreme Court of Vermont
May Term, 2019
2019 VT 47
Howard E. Van Benthuysen, J.
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
Robert B. Hemley and Erin M. Moore of Gravel & Shea PC, Burlington, and Chad R. Bowman of Ballard Spahr LLP, Washington, DC, for Appellant.
Rory T. Thibault, Washington County State’s Attorney, Barre, for Appellee State.
PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Dooley, J. (Ret.), Specially Assigned
¶ 2. This case arose out of an inquest convened under
¶ 3. Appellant moved to quash the subpoena, citing
¶ 4. The State completed the investigation and in April 2018 publicly announced that it would not bring any charges. Appellant subsequently moved to unseal the court’s February 16 decision. The State opposed unsealing it. The trial court denied the motion. It recognized that no statute explicitly makes all inquest proceedings confidential, but concluded that under our case law, inquests, including transcripts, evidence, and court orders, are confidential and secret. Applying Vermont’s Public Records Act (PRA), the court concluded that the order was exempt from disclosure pursuant to
¶ 5. Appellant contends that the trial court improperly relied on the PRA,
¶ 6. The State argues that the trial court correctly determined the order was not subject to disclosure under the PRA, and that while court records are presumptively open to the public under the PACR Rules, this order should remain sealed because although “[i]nquest proceedings are not expressly addressed” in the list of exceptions from disclosure under the PACR Rules, a number of the exceptions should be read to apply to it.
¶ 7. The trial court’s ruling sealing its order was based on its legal determination that all records associated with inquest proceedings, including the court’s order on a motion to quash a subpoena, are categorically confidential and exempt from public disclosure. We review this legal determination without deference. Estate of Lott v. O‘Neill, 2017 VT 11, ¶ 5, 204 Vt. 182, 165 A.3d 1099.
¶ 8. We note at the outset that given the way this case unfolded, two related but distinct concepts—the presumptive public or nonpublic nature of certain case records on the one hand, and the court’s authority to seal otherwise publicly accessible records in a particular case, on the other—became intertwined. If the applicable law categorically precludes disclosure of the court’s order, then no specific sealing order would be required to effectuate this requirement. Likewise, even if the applicable law authorized disclosure of the order, the court might have had discretion to seal it. See In re Sealed Documents, 172 Vt. 152, 159-63, 772 A.2d 518, 525-28 (2001) (discussing circumstances in which court records subject to public disclosure may nevertheless be sealed); see also V.R.P.A.C.R. 7(a) (describing circumstances in which court may seal records that are otherwise subject to public disclosure). The trial court’s ruling sealing the
¶ 9. With that understanding, we conclude that issues concerning public access to judicial case records should be decided pursuant to thе PACR Rules, rather than the PRA, and that the court order at issue is a judicial case record. Under the PACR Rules, all case records are public records presumptively subject to public disclosure unless an exception applies, and no categorical exception from disclosure applies to the February 16 order. In addition, no basis exists in this case to seal or redact the order at issue pursuant to the court’s authority to seal or redact otherwise publicly accessible records.1
I. PACR versus PRA
¶ 10. As an initial matter, we hold that the proper framework for evaluating whether the court’s order is categorically excluded from public disclosure is found in the Vermont Rules for Public Access to Court Records, as opposed to the Vermоnt Public Records Act.
¶ 11. As the U.S. Supreme Court has recognized, “[e]very court has supervisory power over its own records and files.” Nixon v. Warner Commc‘ns, Inc., 435 U.S. 589, 598 (1978). In exercise of this authority, this Court adopted Rules for Public Access to Court Records in 2001.2 The rules were written to be comprehensive, reflecting all then-existing statutory and procedural rule provisions on public access to court records, and adding additional provisions. See V.R.P.A.C.R. 1; Reporter’s Notes, V.R.P.A.C.R. 1. In recognition of the fact that some access statutes may have been missed in drafting the rules, and new access statutes may be adopted in the future, the PACR Rules adopted by reference any other statutory access restrictions, at least with respect to case records. See V.R.P.A.C.R. 6(b)(35); Reporter’s Notеs, V.R.P.A.C.R. 1. The PACR Rules are thus distinct from the PRA enacted by the Legislature and signed by the Governor, although by design the Rules generally mimic or incorporate where relevant the statutory protections of the PRA and other statutes.
¶ 12. We have previously questioned whether the PRA applies in its own right to court case records. See, e.g., Herald Ass‘n v. Judicial Conduct Bd., 149 Vt. 233, 240 n.7, 544 A.2d 596, 601 n.7 (1988) (noting that “[i]t is doubtful that the public records law applies at all to judicial records in view of the specific statutes in the trial courts and the power of the judicial branch over its records“). And in a 2012
¶ 13. We now make more explicit what we have long assumed, and noted briefly in Essex Search Warrants: Requests to courts for public access to case records should be evaluated under the Vermont Rules for Public Access to Court Records. This holding is consistent with our longstanding caselaw, and the provisions of the PRA.
¶ 14. As far back as 1987, this Court has applied law other than the PRA in evaluating questions concerning access to court records. Before the Judiciary adopted the PACR Rules, statutes distinct from the PRA regulated public access to judicial case records. See
¶ 15. In 2001, the Court adopted the PACR Rules for judiciary records generally, including case records in particular. We noted in Essex Search Warrants that since that time, the PACR Rules have governed public accessibility of court records. 2012 VT 92, ¶ 20 n.8. In the meantime, in the context of a broader restructuring of the Judiciary, the Legislature repealed the two statutes governing public access to superior court and district court records, in 2013 and 2010, respectively. 2013, No. 67, § 15; 2009, No. 154 (Adj. Sess.), § 68.
¶ 16. Since Tallman, with one exception that has no precedential impact on the question, we have consistently applied either one of the more specifiс, now-repealed statutes governing court records, the PACR Rules, or the U.S. or Vermont Constitutions, and not the PRA to questions concerning access to court records. See, e.g., Essex Search Warrants, 2012 VT 92; Shahi v. Ascend Fin. Servs., Inc., 2006 VT 29, ¶ 17, 179 Vt. 434, 898 A.2d 116 (applying
¶ 17. In addition, our reading is consistent with the stated purpose of the PRA. Although we acknowledge that the definition of “public agency” in the PRA includes any “branch” of the State,
¶ 18. As a practical matter, because the PACR Rules sought to incorporate existing statutory provisions relating to the confidentiality of records, and then incorporated by reference any additional statutes, in most cases, an analysis under the PRA and one under the PACR Rules will likely lead to the same outcome.4 Moreover, we note that in exercising discretion where authorized under the PACR Rules, in particular рursuant to Rule 7(a), courts should be mindful of the Legislature’s policy judgments concerning confidentiality of public records, as reflected in the express provisions of the PRA. As Justice Skoglund recognized in her concurrence in Essex Search Warrants, a court’s consideration of a question concerning public access to court records should be mindful of clear legislative expressions of public interest in the PRA. 2012 VT 92, ¶¶ 38-40 (Skoglund, J., concurring). Finally, we note that, like all court rules, the PACR Rules are subject to legislative review through the Legislative Committee on Judicial Rules,
II. Records and Inquests
¶ 19. We conclude that the record at issue here—a deсision by the trial court on a motion to quash a subpoena in the context of an inquest—is a court case
[An inquest] is essentially a criminal proceeding, designed to determine whether sufficient evidence exists to prosecute a criminal matter. The state’s attorney or attorney general initiates an inquest by applying in writing to a judge of the district or superior court. If the judge decides to conduct an inquest, the judge may issue “necessary process” to require witnesses to give evidence related to the investigation. This process includes issuing subpoenas and exercising the court’s contempt power to force recalcitrant witnesses to testify.
In re D.L., 164 Vt. 223, 225, 669 A.2d 1172, 1174 (1995) (citations omitted). In D.L., we considered a constitutional challenge to Vermont’s inquest procedure on separation-of-powers grounds. In upholding the practice, we acknowledged that the inquest proceeding was investigatory, but concluded that the court’s role in the proceeding is judicial. The prosecutor initiates the process by making a written application to the court. The decision whether to hold one lies with the judge. The court does not question witnesses; instead, its role is limited to exercising its subpoena power, administering oaths, protecting the rights of witnesses, and using contempt powers—all responsibilities that “directly relate[] back to [the court’s] ultimate function of neutral arbiter.” Id. at 232, 669 A.2d at 1178.
¶ 20. Given this understanding of the inquest proceeding, we reject the suggestions that the proceeding is not a judicial proceeding, and that court records associated with inquests are not, in fact, court records at all for the purpose of a request to the courts for public access to those records. Even though the goal of an inquest is investigatory, it is still a court proceeding, and records filed with the court or issued by the court in connection with the inquest are still court records. Every judicial branch record “pertaining to a particular case or controversy” is a “case record” under the PACR Rules. V.R.P.A.C.R. 3(b). This clearly includes a written decision on a contested issue concerning a motion to quash in an inquest.
¶ 21. Because we conclude that the trial court’s written decision on the motion to quash is a court case record, and because access to court case records is governed by the PACR Rules, we consider whether the court’s February 16 order is subject to disclosure under those Rules.
III. Application of the PACR Rules
¶ 22. None of the categorical exceptions to the general rule of public disclosure under the PACR Rules applies to the case record at issue. The PACR Rules provide that “[t]he public shall have access to all case records” unless the records fall within a list of enumerated exceptions. V.R.P.A.C.R. 6(a); see also V.R.P.A.C.R. 4 (enunciating general policy that “[e]xcept as provided in these rules, all case and administrative records of the Judicial Branch shall be open to any member of the public for inspection or to obtain copies“). Accordingly, the public presumptively has access to the opinion unless any of the exceptions in Rule 6(b) apply.
¶ 23. The State concedes that none of the exceptions expressly apply, but points to the confidentiality of inquest proceedings and argues that because the order relates to an inquest, and the “reasoning and policy considerations underlying a number of” the exceptions apply with equal force to records related to inquests, the record should not be accessible to the public. It also argues that the order falls
¶ 24. We reject the State’s argument that we should infer a categorical prohibition against disclosure of records relating to inquest proceedings because inquests are similar to procedures to which Rule 6(b) exceptions relate, such as the issuance or denial of a search warrant or the initiation of a criminal proceeding. See V.R.P.A.C.R. 6(b)(15), (16), (24) (exempting from disclosure records of issuance оr denial of search warrant, and records filed in connection with initiation of criminal proceeding if judicial officer does not find probable cause).
¶ 25. In interpreting a court rule, “we employ tools similar to those we use in statutory construction. That is to say that when construing a rule, we consider its plain language and the purpose it was designed to serve.” State v. Amidon, 2008 VT 122, ¶ 16, 185 Vt. 1, 967 A.2d 1126. We do not supply words which have been omitted from the rule, State v. Villar, 2017 VT 109, ¶ 7, 206 Vt. 236, 180 A.3d 588, and we assume that “when a drafter itemizes members of an associated group or series, we may justifiably infer that items not mentioned were excluded by deliberate choice, not inadvertence.” In re D.C., 2016 VT 72, ¶ 31, 202 Vt. 340, 149 A.3d 466 (quotation omitted). Given that the PACR Rules specifically limit disclosure of a range of specified types of сourt records, such as search warrants and affidavits of probable cause, we are not inclined to infer a categorical exemption for a class of records—records in inquest proceedings—nowhere listed in the exceptions to the PACR Rules.
¶ 26. Moreover, the analogies the State seeks to draw with other exceptions from the general rule of public accessibility do not support the categorical exemption the State seeks. Under the PACR Rules, records relating to the issuance of a search warrant are exempt from disclosure only until the date of the return of the warrant; thereafter, they can be withheld from the public only if the court issues an order sealing them. V.R.P.A.C.R. 6(b)(15). Records of the denial of a search warrant are presumptively closed to public access, but the court may issue an order opening access to them. V.R.P.A.C.R 6(b)(16). And we have recently emphasized that affidavits of probable cause in cases in which no probable cause is found are still subject to discretionary public disclosure pursuant to Rule 7(a). In re Affidavit of Probable Cause, 2019 VT 43, ¶¶ 9, 13-14, __ Vt. __, __ A.3d __. None of the PACR rules governing analogous proceedings relied upon by the State establishes the kind of blanket exemption from disclosure sought by the State here.
¶ 27. We likewise reject the State’s contention that the Rule’s exceptions for transcripts, “court reporter’s notes, or audio or videotape of a proceeding to which the public does not have access,” оr for “evidence introduced in a proceeding to which the public does not have access,” apply to the trial court’s order. V.R.P.A.C.R. 6(b)(30), (31). The order is plainly not a transcript, note, recording of proceedings, or evidence. It is a written decision generated by the court.
¶ 28. Finally, we disagree with the State that the court’s order is exempt from disclosure because it is a record to which public access is prohibited by statute. See V.R.P.A.C.R. 6(b)(35). The State has identified no statutes that prohibit public access to this court order, and we are aware
IV. Sealing Pursuant to PACR Rule 7
¶ 29. Even though the trial court’s order is not categorically exempt from public disclosure pursuant to PACR Rule 6, the court has discretion to seal the order pursuant to Rule 7. Ordinarily, this would be a discretionary judgment committed in the first instance to the trial court.
However, because the trial court could not on this record make the requisite findings to support an order sealing or redacting the order, we conclude that remand is unnecessary.
¶ 30. Rule 7(a) provides that “the presiding judge by order may grant public access to a case record to which access is otherwise closed, may seal from public access a record to which the рublic otherwise has access or may redact information from a record to which the public has access.” The judge may seal or redact a record “upon a finding of good cause specific to the case . . . and exceptional circumstances. In considering such an order, the judge shall consider the policies behind this rule.” Id.
¶ 31. The Reporter’s Notes to Rule 7 explain that “[t]he standards in In re Sealed Documents will be particularly relevant in deciding whether to exercise the authority under [Rule 7(a)].” Sealed Documents held that “the presumptive right of access to court records . . . may be overcome only by a showing that . . . a substantial threat exists to the interests of effective law enforcement, or individual privacy and safety.” 172 Vt. at 161, 772 A.2d at 527. That showing must be made “with specificity as to еach document; general allegations of harm are insufficient.” Id. (quotation and emphasis omitted). Because “secrecy should extend no further than necessary to protect the interests in confidentiality,” the “court must determine whether these interests might be served by deletion of the harmful material.” Id. at 162, 772 A.2d at 527 (quotation omitted). Finally, “in rendering a decision, the court must examine each document individually, and make fact-specific findings with regard to why the presumption of access has been overcome.” Id.
¶ 32. We have recognized that the PACR Rules incorporate the Sealed Documents standard for whether the public should have access to search warrant materials. Essex Search Warrants, 2012 VT 92, ¶ 20. And we have described Rule 7(a)’s requirements of good cause specific to the case аnd exceptional circumstances as “practically indistinguishable” from and synonymous with
¶ 33. Because the decision to seal or redact pursuant to Rule 7(a) involves the exercise of discretion by the trial court, having concluded that the record here is not categorically exempt from disclosure, we would ordinarily remand for the trial court to determine in the first instance whether to seal or redact the record on account of case-specific factors giving rise to exceptional circumstances. However, a remand is not necessary here because we see no basis in the record that could support an order redacting or sealing the trial court’s February 16, 2018 order.5
¶ 34. Several factors support this conclusion. The investigation supported by the inquest below had concluded when appellant moved to unseal the order, and the State had announced it would not bring charges as a result. Accordingly, the State has conceded that there is nothing in the court’s order that would compromise any ongoing investigation. Moreover, there is no concern that releasing the order will somehow reveal the existence or impair the workings of a necessarily secret law-enforcement investigation: The investigation by the Vermont State Police was announced publicly in a press conference. The order at issue was made in response to briefing that was not itself sealed. And finally, our own review of the sealed order confirms that it contains nothing that could pose a threat to effective law enforcement or individual privacy and safety, or any other information that might potentially warrant sealing or redaction under the Rule 7(a) standard. In fact, the sealed order makes no mention of the substance of any information gathered during the inquest proceeding itself.
¶ 35. For the above reasons, we reverse the trial court’s order denying appellant’s motion to unseal the February 16, 2018 decision and order that the February 16, 2018 decision be unsealed.
Reversed.
FOR THE COURT:
Associate Justice
¶ 36. DOOLEY, concurring. I fully concur in and join the Court’s decision and the analysis by which it reached that decision. I write additionally to make two broader points I believe this case raises.
¶ 37. The first involves the nature of the record that appellant, WCAX-TV, sought to make publicly accessible.6 All public-access
¶ 38. Except for proceedings that are entirely closed to public access, for example, a child-protection juvenile case, the denial of all public access to a judicial decision is a rare event. Even for cases that are issued in closed proceedings, court decisions can and are routinely made publicly accessible through substituting initials for names, careful drafting to omit disclosure of confidential information, and redaction of confidential information. The point is that it is extremely rare that a court decision be totally closed from public scrutiny of the final decision and the rationale for the decision. It should take only the most compelling of reasons to enable a judge to seal a court decision from public access.
¶ 39. This is a case in which the confidentiality reason for sealing the subpoena decision had become nonexistent by the time the court decided not to unseal that decision. The investigation into whether a crime had been committed in the killing of the suspected bank robber was completed so release of the subpoena decision could not adversely affect the investigation. The State raised the need for confidentiality only in the hearing on whether to quash the subpoena. By that time, almost all the information about the investigation was in the public record and is in the public printed case filed in this Court. The decision to quash the subpoena is not based on any sensitive or confidential information. I would say clearly that the circumstances present here did not come close to providing a justification for completely sealing a court decision.
¶ 40. My second point relates to what became the State’s primary argument at the oral argument to this Court—that an inquest is a secret proceeding. It drew that argument primarily from a decision rendered by this Court early in the twentieth century. See State v. Truba, 88 Vt. 557, 561, 93 A. 293, 295 (1915) (“In accordance with the general policy of the law, the inquest provided for by the act referred to is a secret investigation.“); see also Reed v. Allen, 121 Vt. 202, 207, 153 A.2d 74, 77 (1959) (noting that statutes “provide for the controlled secrecy of grand jury and inquest proceedings respectively“). Despite that argument, the State agreed that no statute made the subpoena hearing, or the decision on whether to quash the subpoena, nonpublic. In essence, the State seems to have claimed that the procedure for inquest proceedings, including whether they are “secret,” is controlled by the common law.
¶ 41. This broad reading of the law applicable to inquests was rejected in State v. Alexander, 130 Vt. 54, 60, 286 A.2d 262, 265 (1971), superseded by statute on other grounds as recognized in State v. Carpenter, 138 Vt. 140, 412 A.2d 285 (1980), where this Court described the inquest procedure with respect to secrecy as follows:
The statutes do not expressly provide that an inquest is strictly a secret investigatory proceeding. The intention of the legislature concerning secrecy of the product of the inquest is laid out in [
13 V.S.A.] § 5134 . The language there used is plain and clear that secrecy is mandated. The statute specifically provides that the stenographer “shall be sworn to keep secret all matters and things coming before the judge at such inquest” . . . .. . . .
. . . Although the inquest statutes are not penal and the proceeding is not accusative, the investigation relates to criminal matters to determine the existence of probable cause and are thus to be strictly construed.
The statute referenced in Alexander continues, with some modifications that are not relevant, in the same form today. As the opinion оf Justice Robinson holds for the Court, the only part of an inquest proceeding that the statute makes secret is the content of an evidentiary hearing to investigate whether a crime was committed and there is probable cause to commence a prosecution. Ante, ¶ 28; see also Alexander, 130 Vt. at 60, 286 A.2d at 265.
¶ 42. This brings me to the point I made in my separate opinion in Rutland Herald v. Vermont State Police, 2012 VT 24, ¶¶ 51-61, 191 Vt. 357, 40 A.3d 91 (Dooley, J., concurring in part, dissenting in part). I refer the reader to that discussion and provide only a summary here.
¶ 43. The inquest of Truba and Alexander is a proceeding in which a prosecutor investigates whether to file a criminal charge by calling witnesses under subpoena issued by the court to give evidence under oath relevant to an alleged crime. Indeed, the term “inquest” means the evidentiаry hearing in the early decisions through Alexander. Inquests of this type now happen only rarely. Instead the “inquest” has become primarily a method of obtaining documentary or physical evidence from a witness who will provide the document or physical evidence on receipt of a subpoena for it thereby obviating any need for a hearing of any kind. In some cases, as this one shows, the witness will not turn over the document or physical evidence without contesting the validity of the subpoena.
¶ 44. In the modern “inquest” there is no evidentiary hearing with witnesses testifying to facts relevant to the commission of the crime. If there is an evidentiary hearing, it involves only the validity of the subpoena.
¶ 45. For purposes of public access, the shift in usage has significant consequenсes. By dropping the part of the procedure that the statute designated as secret, the modern “inquest” has no claim to statutory secrecy and no claim under an exception to public access in the Rules for Public Access to Court Records. Unless sealed under Rule 7 of the Vermont Rules for Public Access to Court Records, all documents filed in the modern “inquest” are publicly accessible. Although the opinion for the Court does not explicitly go this far, this is the necessary consequence of its decision.
¶ 46. In my opinion, the current situation is untenable. Having the Judiciary make ex parte decisions on whether to seal documents is not a desirable process and can too easily become rote. The Legislature needs to deсide whether there is a need for a secret investigatory subpoena power, either by amending the inquest statute or by generally authorizing the issuance of investigatory subpoenas in the executive branch, without court involvement where there is no dispute as to the validity of the subpoena. The Legislature created such an authority for consumer-fraud cases, see
Associate Justice (Ret.), Specially Assigned