Vermont

Author

Robert B. Hemley, Esq.
Erin M. Moore, Esq.
GRAVEL AND SHEA
76 St. Paul Street
P.O. Box 369
Burlington, VT 05402
(802) 658-0220
Fax: (802) 658-1456
rhemley@gravelshea.com
emoore@gravelshea.com

Last updated July 2019

Compare

Open Courts Compendium

Compare

I. Introduction: Access rights in the jurisdiction

Compare

A. The roots of access rights

Although the Vermont Public Records Act says it applies to any “branch” of the state government, 1 V.S.A. § 317(a)(2), Vermont Supreme Court opinions suggest that court and judicial records are not subject to the Act, see, e.g., State v. Whitney, 2005 VT 102 ¶ 9, and the judiciary is expressly exempted from Vermont’s Open Meeting Law, see 1 V.S.A. § 312(e). Moreover, separate statutes and rules define the duties of court clerks, e.g., 4 V.S.A. § 740, as well as the common law right of all courts to control their own procedures and records, State v. Edson, 2014 Vt. Unpub. LEXIS 8, *10, 195 Vt. 661.

It is beyond dispute that Vermont citizens have a “constitutional and common law right of access to court records.” State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also In re Sealed Documents, 172 Vt. 152, 161, 772 A.2d 518, 527 (Vt. 2001); State v. Schaefer, 157 Vt. 339, 347, 599 A.2d 337, 342 (Vt. 1991). These long-standing rights apply in both civil and criminal cases and stem from the right of the public to hold accountable, and have confidence in, the judiciary. See, e.g., Vt. Pub. Acc. Ct. Rec. Rule 1, reporter’s note (“The judiciary, like the other branches of state government, is accountable to the public. Open access to its records and proceedings is essential to maintaining public trust and confidence in the operation of the court system.”).

Indeed, this right of access is so important that the Vermont judiciary created a separate set of rules — the Vermont Rules for Public Access to Court Records (the “Rules”) — which govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005). Recently, the Vermont Supreme Court made explicit that “[r]equests to courts for public access to case records should be evaluated under the Vermont Rules for Public Access to Court Records,” not the Vermont Public Records Act. In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47¶ 13 (July 19, 2019).

These Rules “provide a comprehensive policy on public access to Judicial Branch records . . . [and] [t]hey shall be liberally construed in order to implement the policies therein.” Vt. Pub. Acc. Ct. Rec. Rule 1. The general policy in Vermont with respect to public access to court records is that such records “shall be open to any member of the public for inspection or to obtain copies.” Vt. Pub. Acc. Ct. Rec. Rule 4 (emphasis added). Specifically, the Rules provide that “[t]he public shall have access to all case records, in accordance with the provisions of this rule, except as provided in subsection (b) of this section.” Vt. Pub. Acc. Ct. Rec. Rule 6(a) (emphasis added); see also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT at ¶ 22. The Reporter’s Notes indicate that the Rules “do not govern access to court proceedings . . . [but] [i]f the public has access to a proceeding, it has access to a record of the proceeding, unless that record is specifically exempted from disclosure.” Vt. Pub. Acc. Ct. Rec. Rule 1.

Compare

B. Overcoming a presumption of openness

The Vermont Rules for Public Access to Court Records govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1. Subject to certain enumerated exceptions, “all case and administrative records of the Judicial Branch shall be open to any member of the public for inspection or to obtain copies.” Vt. Pub. Acc. Ct. Rec. Rule 4.

In 2019, the Vermont Supreme Court re-affirmed that under the Rules “all case records are public records presumptively subject to public disclosure unless an exception applies.” In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 9 (July 19, 2019). There, the State conceded that none of the exceptions expressly applied, and the Court rejected the State’s attempt to infer a categorical prohibition against disclosure of records relating to inquest proceedings because they are similar to other enumerated exceptions in the Rules regarding search warrants or affidavits of probable cause. Id. at ¶¶ 23-25.

Similarly, Vermont court proceedings are presumptively open to the public, “closure being the exception rather than the rule.” State v. Tallman, 148 Vt. 465, 474, 537 A.2d 422, 427-28 (Vt. 1987). “To rebut the presumption of openness, the party seeking closure must demonstrate ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (citation omitted); see also Herald Ass’n v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (Vt. 1980) (“any pretrial closure order imposed in this jurisdiction must be based on a clear necessity for the protection of the defendant’s fair trial rights and must be limited in scope by its justification”). “Criminal proceedings may be closed to the public without violating First Amendment rights only if (1) closure serves a compelling interest; (2) there is a ‘substantial probability’ that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest.” State v. Densmore, 160 Vt. 131, 138, 624 A.2d 1138, 1142 (Vt. 1993); see also Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986).

Compare

C. Procedural prerequisites to closure

Records

The Vermont Rules for Public Access to Court Records govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005). The Rules provide 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 public otherwise has access or may redact information from a record to which the public has access.” Vt. Pub. Acc. Ct. Rec. Rule 7(a); see also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 30 (July 19, 2019). Rule 7 requires, however, that prior to entering such an order, “[a]ll parties to the case to which the record relates, and such other interested persons as the court directs, have a right to notice and hearing . . . except that the court may issue a temporary order to seal or redact information from a record without notice and hearing until a hearing can be held.” Vt. Pub. Acc. Ct. Rec. Rule 7(a). An order may only be issued, however, “upon a finding of good cause specific to the case before the judge and exceptional circumstances” and, “[i]n considering such an order, the judge shall consider the policies behind this rule.” Id. This process is unavailable, however, “[i]f a statute governs the right of public access and does not authorize judicial discretion in determining to open or seal a record.” Id. Any appeals from determinations under this section are made to the Vermont Supreme Court. Id. at (c).

Proceedings

In Vermont, court proceedings are presumptively open to the public, “closure being the exception rather than the rule.” State v. Tallman, 148 Vt. 465, 474, 537 A.2d 422, 427-28 (Vt. 1987). “To rebut the presumption of openness, the party seeking closure must demonstrate ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (citation omitted); see also Herald Ass’n v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (Vt. 1980) (“any pretrial closure order imposed in this jurisdiction must be based on a clear necessity for the protection of the defendant’s fair trial rights and must be limited in scope by its justification”). “Criminal proceedings may be closed to the public without violating First Amendment rights only if (1) closure serves a compelling interest; (2) there is a ‘substantial probability’ that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest.” State v. Densmore, 160 Vt. 131, 138, 624 A.2d 1138, 1142 (Vt. 1993).

Compare

II. Procedure for asserting right of access to proceedings and records

Compare

A. Media standing to challenge closure

Records

The Vermont Rules for Public Access to Court Records provide the media with standing to challenge a denial of access to court records. Rule 6(h) provides that “[a]ny person aggrieved by a decision made by a case record custodian with respect to a request for access to a physical or electronic case record or a part thereof . . . has a right to appeal that decision to the presiding judge within the time limit specified in 1 V.S.A. § 318(a)(3).” Vt. Pub. Acc. Ct. Rec. Rule 6(h); see also State v. Rooney, 2008 VT 102, ¶ 3, 965 A.2d 481, 483 (Vt. 2008) (analyzing media’s appeal of denial of access to certain audio and video tapes admitted into evidence at a suppression hearing). Moreover, Rule 7, which allows a presiding judge to “seal from public access a record to which the public otherwise has access or may redact information from a record to which the public has access” also provides that “[a]ll parties to the case to which the record relates, and such other interested persons as the court directs, have a right to notice and hearing before such order is issued, except that the court may issue a temporary order to seal or redact information from a record without notice and hearing until a hearing can be held.” Vt. Pub. Acc. Ct. Rec. Rule 7(a).

Proceedings

The Vermont Supreme Court has also recognized the media’s standing to challenge the closure of court proceedings, holding that “direct intervention in a trial court proceeding is an appropriate legal vehicle for ensuring that the news media’s voice is heard in a timely manner.” State v. Tallman, 148 Vt. 465, 468, 537 A.2d 422, 424 (Vt. 1987); see also State v. Schaefer, 157 Vt. 339, 344, 599 A.2d 337, 342 (Vt. 1991) (“We have held that the media may directly intervene in a criminal proceeding for purposes of seeking access to proceedings or papers.”). Moreover, “[o]nce representatives of the media intervene, . . . they have standing to appeal to this Court from orders denying them access to papers or proceedings.” Schaefer, 157 Vt. at 344, 599 A.2d at 342.

Compare

B. Procedure for requesting access in criminal cases

Records

The Vermont Rules for Public Access to Court Records provide that:

A case record to which the public has access may be inspected and copied at any time when the office of the clerk of the court is open for business. The record custodian shall act on a request promptly within the time limits set in 1 V.S.A. § 318. If a copy of the case record is requested, 1 V.S.A. § 316(g) and (h) shall apply, and the record custodian shall charge the fees for copying and, if applicable, staff time in accordance with 1 V.S.A. § 316(b)-(d) and (f).

Vt. Pub. Acc. Ct. Rec. Rule 6(f). The “record custodian” is typically the clerk of the court. See Vt. Pub. Acc. Ct. Rec. Rule 3(f).

Proceedings

Unlike access to court records, there is no comprehensive rule or statute governing public access to court proceedings in Vermont. However, the Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings.” State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception). Thus, there is no need to request access to the majority of criminal proceedings. Where, however, court proceedings are closed, the Vermont Supreme Court has recognized the media’s standing to challenge the closure of court proceedings. See Tallman, 148 Vt. at 468, 537 A.2d at 424 (holding that “direct intervention in a trial court proceeding is an appropriate legal vehicle for ensuring that the news media’s voice is heard in a timely manner”); see also State v. Schaefer, 157 Vt. 339, 344, 599 A.2d 337, 342 (Vt. 1991) (“We have held that the media may directly intervene in a criminal proceeding for purposes of seeking access to proceedings or papers.”). Moreover, “[o]nce representatives of the media intervene, . . . they have standing to appeal to this Court from orders denying them access to papers or proceedings.” Schaefer, 157 Vt. at 344, 599 A.2d at 342.

Compare

C. Procedure for requesting access in civil matters

Records

The Vermont Rules for Public Access to Court Records provide that:

Vt. Pub. Acc. Ct. Rec. Rule 6(f). The “record custodian” is typically the clerk of the court. See Vt. Pub. Acc. Ct. Rec. Rule 3(f).

Proceedings

Compare

D. Obtaining review of initial court decisions

Records

The Vermont Rules for Public Access to Court Records provide the media with standing to challenge a denial of access to court records. Rule 6(h) provides that “[a]ny person aggrieved by a decision made by a case record custodian with respect to a request for access to a physical or electronic case record or a part thereof . . . has a right to appeal that decision to the presiding judge.” Vt. Pub. Acc. Ct. Rec. Rule 6(h); see also State v. Rooney, 2008 VT 102, ¶ 3, 965 A.2d 481, 483 (Vt. 2008) (analyzing media’s appeal of denial of access to certain audio and video tapes admitted into evidence at a suppression hearing). If the decision being appealed is to grant access to all or part of a record, the presiding judge may order the decision to be stayed pending a decision on appeal. Vt. Pub. Acc. Ct. Rec. Rule 6(h). After giving notice to the aggrieved party, the “appeal proceeding shall be set for hearing, if any, at the earliest practicable date and shall be decided as soon as possible.” Id. Any appeal of the presiding judge’s decision “may be appealed to the Supreme Court.” Id. Similarly, any appeals of a judge’s decision under Rule 7 to “seal from public access a record to which the public otherwise has access or may redact information from a record to which the public has access” must be made to the Vermont Supreme Court. Vt. Pub. Acc. Ct. Rec. Rule 7(a),(c); see also State v. Rooney, 2008 VT 102, ¶¶ 3-7, 965 A.2d 481, 483-84 (Vt. 2008); In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 33 (July 19, 2019).

Proceedings

The Vermont Supreme Court has recognized the media’s standing to challenge the closure of court proceedings. See Tallman, 148 Vt. at 468, 537 A.2d at 424 (holding that “direct intervention in a trial court proceeding is an appropriate legal vehicle for ensuring that the news media’s voice is heard in a timely manner”); see also State v. Schaefer, 157 Vt. 339, 344, 599 A.2d 337, 342 (Vt. 1991) (“We have held that the media may directly intervene in a criminal proceeding for purposes of seeking access to proceedings or papers.”). Moreover, “[o]nce representatives of the media intervene, . . . they have standing to appeal to this Court from orders denying them access to papers or proceedings.” Schaefer, 157 Vt. at 344, 599 A.2d at 342.

Compare

III. Access to criminal proceedings

Compare

A. In general

Unlike access to court records, there is no comprehensive rule or statute governing public access to court proceedings in Vermont. However, the Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings.” State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception). The Vermont Supreme Court has recognized that criminal trials historically have been open to the public in their entirety, “resulting in a strong presumption in favor of openness.” State v. Favreau, 173 Vt. 636, 638, 800 A.2d 472, 474 (Vt. 2002); see also State v. Nutbrown-Covey, 2017 VT 26, ¶ 20, n.3, 204 Vt. 363, 373 (Vt. 2017) (“the public and the press have a protected First Amendment right of access to most stages of a criminal trial”). The Vermont Supreme Court has applied the two-part test developed by the United States Supreme Court for determining whether the First Amendment right of accessto criminal proceedings attaches to a particular proceeding. State v. LaBounty, 167 Vt. 25, 29, 702 A.2d 82, 85 (Vt. 1997) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986)). Under this test, the qualified right attaches if, first, “the place and process have historically been open to the press and general public,” and second, “public access plays a significant positive role in the functioning of the particular process in question.” LaBounty, 167 Vt. at 29, 702 A.2d at 85.

Compare

B. Pretrial proceedings

The Vermont Supreme Court has recognized that criminal trials historically have been open to the public in their entirety, “resulting in a strong presumption in favor of openness.” State v. Favreau, 173 Vt. 636, 638, 800 A.2d 472, 474 (Vt. 2002). Indeed, the Court “start[s] with the presumption that pretrial proceedings and documents are open to the public, closure being the exception rather than the rule.” State v. Tallman, 148 Vt. 465, 474, 537 A.2d 422, 427-28 (Vt. 1987) (holding that members of the public and news media have a right of access to pretrial suppression hearings under the First Amendment). “To rebut the presumption of openness, the party seeking closure must demonstrate ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (citation omitted); see also Herald Ass’n v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (Vt. 1980) (“any pretrial closure order imposed in this jurisdiction must be based on a clear necessity for the protection of the defendant’s fair trial rights and must be limited in scope by its justification”). “Criminal proceedings may be closed to the public without violating First Amendment rights only if (1) closure serves a compelling interest; (2) there is a ‘substantial probability’ that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest.” State v. Densmore, 160 Vt. 131, 138, 624 A.2d 1138, 1142 (Vt. 1993).

The Vermont Supreme Court has applied the two-part test developed by the United States Supreme Court for determining whether the First Amendment right of access to criminal proceedings attaches to a particular proceeding. State v. LaBounty, 167 Vt. 25, 29, 702 A.2d 82, 85 (Vt. 1997) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986)). Under this test, the qualified right attaches if, first, “the place and process have historically been open to the press and general public,” and second, “public access plays a significant positive role in the functioning of the particular process in question.” LaBounty, 167 Vt. at 29, 702 A.2d at 85.

Compare

C. Criminal trials

The Vermont Rules of Criminal Procedure require that “[a]ll trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom.” V.R.Cr.P. Rule 56(b); see also Sunday v. Stratton Corp., 136 Vt. 293, 306, 390 A.2d 398, 405 (Vt. 1978) (“the general rule is that trials should be public, with chamber proceedings the exception rather than the rule); State v. Mecier, 145 Vt. 173, 185, 488 A.2d 737, 745 (Vt. 1984) (noting that Rule 56 requires that a trial be held in open court).

Compare

D. Post-trial proceedings

Compare

E. Appellate proceedings

Compare

IV. Access to criminal court records

Compare

A. In general

The Vermont Rules for Public Access to Court Records (the “Rules”) govern the rights of access by the public to judicial records, including criminal court records. See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005). These Rules “provide a comprehensive policy on public access to Judicial Branch records . . . [and] [t]hey shall be liberally construed in order to implement the policies therein.” Vt. Pub. Acc. Ct. Rec. Rule 1.

Recently, the Vermont Supreme Court made explicit that “[r]equests to courts for public access to case records should be evaluated under the Vermont Rules for Public Access to Court Records,” not the Vermont Public Records Act. In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47¶ 13 (July 19, 2019)

The general policy in Vermont with respect to public access to court records is that such records “shall be open to any member of the public for inspection or to obtain copies.” Vt. Pub. Acc. Ct. Rec. Rule 4 (emphasis added). Specifically, the Rules provide that “[t]he public shall have access to all case records, in accordance with the provisions of this rule, except as provided in subsection (b) of this section.” Vt. Pub. Acc. Ct. Rec. Rule 6(a) (emphasis added); see also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT at ¶ 22.

see also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶¶ 31-32 (July 19, 2019) (recognizing standard applicable to sealing decisions regarding search warrants and extending them to inquest materials). Recently, the Vermont Supreme Court rejected the State’s attempt to infer a categorical prohibition against disclosure of records relating to inquest proceedings because they are similar to other enumerated exceptions in the Rules regarding search warrants or affidavits of probable cause. In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT at ¶¶ 23-25.warrants

In 2019, the Vermont Supreme Court reaffirmed that under the Rules “all case records are public records presumptively subject to public disclosure unless an exception applies.” In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 9 (July 19, 2019). There, the State conceded that none of the exceptions expressly applied and the Court rejected the State’s attempt to infer a categorical prohibition against disclosure of records relating to inquest proceedings because they are similar to other enumerated exceptions in the Rules regarding search warrants or affidavits of probable cause. Id. at ¶¶ 23-25.

The Reporter’s Notes indicate that the Rules “do not govern access to court proceedings, a subject not now covered by a comprehensive rule or statute” . . . but “[i]f the public has access to a proceeding, it has access to a record of the proceeding, unless that record is specifically exempted from disclosure.” Vt. Pub. Acc. Ct. Rec. Rule 1.

Compare

B. Arrest records

The Vermont Public Records Act provides that “records reflecting the initial arrest of a person, including any ticket, citation, or complaint issued for a traffic violation, as that term is defined in 23 V.S.A. § 2302; and records reflecting the charge of a person shall be public.” 1 V.S.A. § 317(c)(5).

Compare

C. Dockets

Criminal dockets are publicly available in Vermont. Access is not available online, however, so you need to contact the appropriate unit and division of the Vermont Superior Court to review criminal dockets. See 12 V.S.A. § 5 (“The Court shall not permit public access via the Internet to criminal or family case records.”). Contact information for the units and divisions of the Vermont Superior Court are available at: http://www.vermontjudiciary.org/court-locations.

Compare

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords of the issuance of a search warrant, until the date of the return of the warrant, unless sealed by order of the court,” as well as "[r]ecords of the denial of a search warrant by a judicial officer, unless opened by order of the court.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(15)-(16). The record of the issuance of a search warrant will become accessible on the execution of the warrant unless sealed pursuant to § 7(a) of the Vermont Rules for Public Access to Court Records. In determining whether to seal warrant issuance records, the court must apply the standards contained in In re Sealed Documents, 172 Vt. 152, 161-63, 772 A.2d 518, 526-28 (Vt. 2001). See also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶¶ 31-32 (July 19, 2019) (recognizing standard applicable to sealing decisions regarding search warrants and extending them to inquest materials).

Recently, the Vermont Supreme Court rejected the State’s attempt to infer a categorical prohibition against disclosure of records relating to inquest proceedings because they are similar to other enumerated exceptions in the Rules regarding search warrants or affidavits of probable cause. Id. at ¶¶ 23-25.

Under the Vermont Public Records Act, records dealing with the detection and investigation of crime are exempt from disclosure, but only to the extent that the production of such records:

(i) could reasonably be expected to interfere with enforcement proceedings;

(ii) would deprive a person of a right to a fair trial or an impartial adjudication;

(iii) could reasonably be expected to constitute an unwarranted invasion of personal privacy;

(iv) could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;

(v) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecution if such disclosure could reasonably be expected to risk circumvention of the law;

(vi) could reasonably be expected to endanger the life or physical safety of any individual.

1 V.S.A. § 317(c)(5).

Compare

E. Discovery materials

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords produced or created in connection with discovery in a case in court, including a deposition, unless used by a party (i) at trial or (ii) in connection with a request for action by the court.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(9); see also Herald Ass’n v. Judicial Conduct Bd., 149 Vt. 233, 239, 544 A.2d 596, 600 (Vt. 1988) (denying access to discovery material in the possession of, but not filed with, the Judicial Conduct Board).

The Vermont Supreme Court recently held that a court’s decision granting a motion to quash a subpoena issued in the context of a criminal inquest is a judicial case record that is presumptively subject to public disclosure under the Vermont Rules for Access to Court Records. In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 9 (July 19, 2019).

Pursuant to V.R.C.P. 5(d), most discovery requests and responses are not filed unless they will be used in a proceeding and, in practice, most discovery records are not introduced into evidence in the case. “Because these records are not considered by the court in resolving contested issues in the case, and are now considered to be private rather than public, they are not subject to the general rule on disclosure of court records. However, any discovery that is used in the case will be open under this section.” Reporter’s Notes, Vt. Pub. Acc. Ct. Rec. Rule 6.

Compare

F. Pretrial motions and records

The Vermont Supreme Court “start[s] with the presumption that pretrial proceedings and documents are open to the public, closure being the exception rather than the rule.” State v. Tallman, 148 Vt. 465, 474, 537 A.2d 422, 427-28 (Vt. 1987) (holding that members of the public and news media have a right of access to affidavits of probable cause). “To rebut the presumption of openness, the party seeking closure must demonstrate ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (citation omitted); see also Herald Ass’n v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (Vt. 1980) (“any pretrial closure order imposed in this jurisdiction must be based on a clear necessity for the protection of the defendant’s fair trial rights and must be limited in scope by its justification”).

Vermont Rule of Criminal Procedure 53.1 provides that “[v]ideo recordings of public proceedings are public records, unless otherwise protected from disclosure by law or by order of the court. Duplicated copies may be ordered at the conclusion of a trial, or at any time by a party.” V.R.Cr.P. Rule 53.1(f). However, the Rules contain exceptions to the general right of public access for “[a]ny transcript, court reporter’s notes, or audio or videotape of a proceeding to which the public does not have access” or “[a]ny evidence introduced in a proceeding to which the public does not have access.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(30)-(31).

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[a]n evaluation by a mental health professional to determine the competency to stand trial and/or sanity of a criminal defendant, if not admitted into evidence.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(19). Moreover, the Rules contain an exception to the general right of public access for “[r]ecords filed in court in connection with the initiation of a criminal proceeding, if the judicial officer does not find probable cause to believe that an offense has been committed and that defendant has committed it, pursuant to Rule 4(b) or 5(c) of the Vermont Rules of Criminal Procedure.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(24).

Compare

G. Trial records

The Vermont Rules for Public Access to Court Records (the “Rules”) — govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005).

Recently, the Vermont Supreme Court made explicit that “[r]equests to courts for public access to case records should be evaluated under the Vermont Rules for Public Access to Court Records”, not the Vermont Public Records Act. In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47¶ 13 (July 19, 2019).

These Rules “provide a comprehensive policy on public access to Judicial Branch records . . . [and] [t]hey shall be liberally construed in order to implement the policies therein.” Vt. Pub. Acc. Ct. Rec. Rule 1. The general policy in Vermont with respect to public access to court records is that such records “shall be open to any member of the public for inspection or to obtain copies.” Vt. Pub. Acc. Ct. Rec. Rule 4 (emphasis added). Specifically, the Rules provide that “[t]he public shall have access to all case records, in accordance with the provisions of this rule, except as provided in subsection (b) of this section.” Vt. Pub. Acc. Ct. Rec. Rule 6(a) (emphasis added); see also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT at ¶ 22. “This is because’ [openness] . . . enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.’” State v. Tallman, 148 Vt. 465, 474, 537 A.2d 422, 427-28 (Vt. 1987) (quoting Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508 (1984)).

Vermont Rule of Criminal Procedure 53.1 provides that “[v]ideo recordings of public proceedings are public records, unless otherwise protected from disclosure by law or by order of the court. Duplicated copies may be ordered at the conclusion of a trial, or at any time by a party.” V.R.Cr.P. Rule 53.1(f). However, the Vermont Rules for Public Access to Court Records contain exceptions to the general right of public access for “[a]ny transcript, court reporter’s notes, or audio or videotape of a proceeding to which the public does not have access” or “[a]ny evidence introduced in a proceeding to which the public does not have access.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(30)-(31).

Compare

H. Post-trial records

The Vermont Supreme Court has held that “a presumption of openness prevails and that documents submitted by the parties in sentencing hearings are subject to a qualified right of inspection by the public.” State v. Densmore, 160 Vt. 131, 136, 624 A.2d 1138, 1141 (Vt. 1993) (noting that “[p]ublic access to sentencing hearings, and to documents filed in connection therewith, plays an important role in the sentencing process”). This right is not absolute, however, and access may be denied if a three-part test is satisfied: “if (1) closure serves a compelling interest; (2) there is a ‘substantial probability’ that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest.” Id. at 138, 624 A.2d at 1142.

Moreover, the Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[a] presentence investigation report as provided in Chapter 5 of Title 28 and Rule 32(c) of the Vermont Rules of Criminal Procedure.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(6); see also 28 V.S.A. § 204(d)-(f); State v. LaBounty, 702 A.2d 82, 86, 167 Vt. 25, 31-32 (Vt. 1997) (holding no First Amendment right of access attaches to pre-sentence investigation reports prepared for use in state sentencing hearings). There are no other exceptions in the Vermont Rules for Public Access to Court Records regarding post-trial records, thus other post-trial records are presumptively open to the public.

Vermont Rule of Criminal Procedure 53.1 also provides that “[v]ideo recordings of public proceedings are public records, unless otherwise protected from disclosure by law or by order of the court. Duplicated copies may be ordered at the conclusion of a trial, or at any time by a party.” V.R.Cr.P. Rule 53.1(f).

Compare

I. Appellate records

Not only are the proceedings of the Vermont Supreme Court presumed to be public, the Vermont Rules of Appellate Procedure provide that “[t]he news media may record proceedings of the Supreme Court, unless the Chief Justice directs otherwise.” V.R.A.P. Rule 35. Note, however, that if records are deemed to not be publicly accessible under Vt. Pub. Acc. Ct. Rec. Rule 6, they “remain inaccessible if the case is appealed to another court.” Vt. Pub. Acc. Ct. Rec. Rule 6(i).

Audio recordings of oral arguments from the past two years are available at: https://www.vermontjudiciary.org/supreme-court/audio-recordings-oral-arguments.

Compare

J. Other criminal court records issues

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords of criminal proceedings involving participants in an adult diversion program sealed pursuant to 3 V.S.A. § 164(e).” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(27). The adult diversion program was created “[t]o assist adults who have been charged with a first or a second misdemeanor or a first nonviolent felony” and to “assist adults with substance abuse or mental health treatment needs regardless of the person’s prior criminal history record.” 3 V.S.A. § 164(b).

Compare

V. Access to civil proceedings

Compare

A. In general

Compare

B. Pre-trial proceedings

Compare

C. Trials

Compare

D. Post-trial proceedings

Compare

E. Appellate proceedings

Compare

VI. Access to civil records

Compare

A. In general

Recently, the Vermont Supreme Court made explicit that “[r]equests to courts for public access to case records should be evaluated under the Vermont Rules for Public Access to Court Records”, not the Vermont Public Records Act. In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47¶ 13 (July 19, 2019).

In 2019, the Vermont Supreme Court re-affirmed that under the Rules “all case records are public records presumptively subject to public disclosure unless an exception applies.” In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 9 (July 19, 2019). There, the State conceded that none of the exceptions expressly applied and the Court rejected the State’s attempt to infer a categorical prohibition against disclosure of records relating to inquest proceedings because they are similar to other enumerated exceptions in the Rules regarding search warrants or affidavits of probable cause. Id. at ¶¶ 23-25.

Compare

B. Dockets

Civil dockets are publicly available in Vermont. Vermont Courts Online provides docket chronologies for civil and small claims cases in the civil division of all units of the Vermont Superior Court. See VT Courts Online, https://secure.vermont.gov/vtcdas/user. Vermont Courts Online does not allow online access to family division cases, see 12 V.S.A. § 5, nor does it currently allow for retrieval of the pleadings and orders listed on any dockets.

Compare

C. Discovery materials

Compare

D. Pre-trial motions and records

Unless a document is filed under seal or relates to discovery, pretrial motions and records are available to the public in civil cases in Vermont. Vermont Courts Online does not allow currently allow for retrieval of the pleadings and orders listed on any dockets, however, so you need to contact the appropriate unit and division of the Vermont Superior Court to obtain copies of any pretrial motions or records. Contact information for the units and divisions of the Vermont Superior Court are available at: http://www.vermontjudiciary.org/court-locations.

Vermont Rule of Civil Procedure 79.3 provides that “[v]ideo recordings of public proceedings are public records, unless otherwise protected from disclosure by law or by order of the court. Duplicated copies may be ordered at the conclusion of a trial, or at any time by a party.” V.R.C.P. Rule 79.3(f).

Compare

E. Trial records

Unless a document is filed under seal or relates to discovery, trial records are available to the public in civil cases in Vermont. Vermont Courts Online does not allow currently allow for retrieval of the pleadings and orders listed on any dockets, however, so you need to contact the appropriate unit and division of the Vermont Superior Court to obtain copies of any trial motions or records. Contact information for the units and divisions of the Vermont Superior Court are available at: http://www.vermontjudiciary.org/court-locations.

Vermont Rule of Civil Procedure 79.3 also provides that “[v]ideo recordings of public proceedings are public records, unless otherwise protected from disclosure by law or by order of the court. Duplicated copies may be ordered at the conclusion of a trial, or at any time by a party.” V.R.C.P. Rule 79.3(f). However, the Vermont Rules for Public Access to Court Records contain exceptions to the general right of public access for “[a]ny transcript, court reporter’s notes, or audio or videotape of a proceeding to which the public does not have access” or “[a]ny evidence introduced in a proceeding to which the public does not have access.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(30)-(31).

Compare

F. Settlement records

Although many settlement agreements are not filed with the court and thus, do not become part of the court’s records, if settlement agreements require court approval or are entered into by a public entity, they will become publicly available. For example, class action settlement agreements must receive court approval, see V.R.C.P. Rule 23(e), as do settlement agreements involving the distribution of wrongful-death proceeds. See 14 V.S.A. § 1492; see also In re Estate of Simonds, No. 51-1-13, 2013 Vt. Super. LEXIS 1, *3-4 (Vt. Super. Ct. January 23, 2013) (holding that a private confidentiality agreement between parties is not in itself sufficient to overcome the presumption that a petition for approval of wrongful-death settlement presented to the court is publicly available). Similar case law holds that public entities cannot override the Vermont Public Records Act through a contract or settlement agreement. See e.g., Katz v. S. Burlington Sch. Dist., 2009 VT 6, ¶ 7, n.2, 970 A.2d 1226, 1228 (Vt. 2009) (noting that case law supports the view that a school district’s separation agreement and general release with its former superintendent is a public record subject to disclosure); Hoffman v. S. Burlington Sch. Dist., No. 1069-11-15, 2015 Vt. Super. LEXIS 96, *6 (Vt. Super. Ct. Dec. 10, 2015) (“a contract or settlement agreement cannot override the Public Records Act").

Compare

G. Post-trial records

See “In general” section.

Compare

H. Appellate records

Compare

I. Other civil court records issues

Compare

VII. Jury and grand jury access

Compare

A. Access to voir dire

The Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings.” State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception); Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 505 (recognizing a First Amendment presumption of access to voir dire). Thus, voir dire proceedings are open to the public.

Compare

B. Juror identities, questionnaires and other records

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords with respect to jurors or prospective jurors as provided in the Rules Governing Qualification, List, Selection and Summoning of All Jurors.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(29). The Rules Governing Qualification, List, Selection and Summoning of All Jurors prohibit public access to a juror’s “address, date of birth, social security number, telephone number and mileage to the courthouse on any court record . . . unless the record is opened by the court for good cause shown.” Vt. Jury Select. Rule 10.

All information other than an individual’s address and date of birth contained in the “Questionnaire as to Qualification for Jury Service” received pursuant to this rule is public, including the name of the individual and town of residence. Public access to the supplemental information supplied to determine whether the individual meets mental and physical demands is prohibited. All information contained in a jury questionnaire is, however, available to the parties. Vt. Jury Select. Rule 4(c); see also V.R.Cr.P. 24(a)(2) (providing that a physical (not electronic) record of the information provided by jurors in response to a written voir dire questionnaire “shall be open to public inspection after the name and address of the person responding have been redacted.”)

Compare

C. Grand jury proceedings and records

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords of a grand jury and any indictment of a grand jury, as provided in Rule 6 of the Vermont Rules of Criminal Procedure.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(3).

Under the Vermont Rules of Criminal Procedure, grand jury proceedings and court records in connection with these proceedings are closed to the public. See V.R.Cr.P. Rule 6(d)-(e). Specifically, V.R.Cr.P. Rule 6(d) provides that, while the grand jury is in session, only the following people may be present: “[t]he prosecuting attorney, the witness being questioned, a court security officer if the particular case circumstances should so require, interpreters when needed, and a court reporter or an operator of a recording device.” V.R.Cr.P. Rule 6(d)(1). Moreover, Rule 6(d) provides that “[n]o person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting.” Id. at (d)(2). Finally, V.R.Cr.P. Rule 6 provides that “[r]ecords, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.” Id. at (e)(6).

Compare

D. Interviewing jurors

Under the Vermont Rules of Criminal Procedure, grand jury proceedings are closed from the public and grand jurors “must not disclose a matter occurring before the grand jury.” V.R.Cr.P. Rule 6(e)(2)(B). Moreover, members of a grand jury in Vermont take a statutorily-prescribed oath to keep deliberations of the grand jury secret. 12 V.S.A. § 5802. Thus, grand jurors may not be interviewed.

There is no prohibition against petit jurors giving interviews after the trial has concluded.

Compare

VIII. Proceedings involving minors

Compare

A. Delinquency

In Vermont, all juvenile court proceedings, including delinquency proceedings, are confidential. See 33 V.S.A. § 5110(a); see also In re J. S., 140 Vt. 458, 464, 438 A.2d 1125, 1127 (Vt. 1981) (“Far from a tradition of openness, juvenile proceedings are almost invariably closed.”). The public does not have access to juvenile court files or juvenile court hearings. See 33 V.S.A. § 5110(b); 33 V.S.A. § 5117(a); Vt. Pub. Acc. Ct. Rec. Rule 6(4) (providing an exception under the Vermont Rules for Public Access to Court Records for “records of the family court in juvenile proceedings”). The Vermont Supreme Court has held that “juvenile proceedings are not criminal prosecutions, a fact which makes at least some of the First Amendment purposes served by open criminal trials inapplicable.” In re J. S., 140 Vt. at 464, 438 A.2d at 1127 (finding need for confidentiality in juvenile proceedings overrides any First Amendment goals which public access might serve).

Compare

B. Dependency

In Vermont, all juvenile court proceedings are confidential. See 33 V.S.A. § 5110(a); see also In re J. S., 140 Vt. 458, 464, 438 A.2d 1125, 1127 (Vt. 1981) (“Far from a tradition of openness, juvenile proceedings are almost invariably closed.”). Juvenile court proceedings include both delinquency proceedings and dependency proceedings (known as “Child in need of supervision (CHINS)” proceedings). See 33 V.S.A. § 5102(3). Thus, the public does not have access to juvenile court files or juvenile court hearings. See 33 V.S.A. § 5110(b); 33 V.S.A. § 5117(a); Vt. Pub. Acc. Ct. Rec. Rule 6(4) (providing an exception under the Vermont Rules for Public Access to Court Records for “records of the family court in juvenile proceedings”).

In Vermont, guardianships are handled in probate court, rather than family court. “When a hearing involves the appointment of a guardian for a minor, the court, on motion of a party or its own motion, may exclude any person other than the parties, their counsel, or witnesses and other persons accompanying a party to assist that party.” V.R.P.P. Rule 77.

Compare

C. Other proceedings involving minors

On July 1, 2018, a statute took effect in Vermont whereby anyone 21 or younger charged with a crime in Vermont can, upon petition, be eligible for youthful offender status. 33 V.S.A. § 5281. Before July 1, 2018, those who had a criminal case and sought youthful offender status had to plead guilty and the case would remain public until a judge determined whether the defendant was appropriate for youthful offender status. 33 V.S.A. § 5281 [repealed effective July 1, 2018].

As of July 2018, the moment a defense attorney files a motion seeking youthful offender status, the records are transferred to the family court and the case becomes confidential until the family court judge makes a determination as to the petition. 33 V.S.A. §§ 5281, 5110. Section 5110 governs these proceedings and states that “[t]here shall be no publicity given by any person to any proceedings under the authority of the juvenile judicial proceedings chapters except with the consent of the child, the child’s guardian ad litem, and the child’s parent, guardian, or custodian.” If the family court accepts the case for youthful offender treatment, the case proceeds to a confidential merits hearing or admission. 33 V.S.A. § 5281(d). If the family court rejects the case for youthful offender treatment, the case is transferred back to the criminal division. 33 V.S.A. § 5281(c).

Compare

D. Prohibitions on photographing or identifying juveniles

A Vermont statute provides that “[t]here shall be no publicity given by any person to any proceedings under the authority of the juvenile judicial proceedings chapters except with the consent of the child, the child’s guardian ad litem, and the child’s parent, guardian, or custodian.” 33 V.S.A. § 5110(c). A person who violates that provision may be subject to contempt proceedings. Id. This includes a prohibition against publishing a minor’s name since “[p]ublication of the youth’s name could impair the rehabilitative goals of the juvenile justice system . . . . [and] may handicap his prospects for adjustment into society, for acceptance by the public, or it may cause him to lose employment opportunities.” In re J. S., 140 Vt. 458, 468, 438 A.2d 1125, 1129 (Vt. 1981) (holding that neither the Vermont nor the United States Constitution provides a right of public access which overrides the compelling interests served by Vermont’s juvenile confidentiality shield statutes).

Compare

E. Minor testimony in non-juvenile courts

The Vermont Rules of Evidence allow for videotaped or closed-circuit testimony by children age 12 or younger who are the alleged victims of specific sexual offenses. See V.R.E. Rule 807 (allowing such testimony only upon a finding that testimony in court would present a substantial risk of trauma to the child, and that such trauma would substantially impair the ability of the child to testify). The preference is, therefore, to allow for minor testimony under Rule 807, rather than closing a non-juvenile courtroom to the public.

“While exclusion is to be avoided under usual circumstances in light of the defendant’s right to a public trial, the court has discretion to weigh competing factors and tailor a limited exclusionary ruling to meet the exigencies of the moment.” State v. Rusin, 153 Vt. 36, 40-41, 568 A.2d 403, 406 (Vt. 1989). In cases involving young victims of sexual assault, for example, the Vermont Supreme Court has recognized that “[t]he exclusion of certain spectators is to be judged in light of the public trial guarantee, by the usual standard of discretion afforded the trial court under V.R.E. 611(a)(3) which requires the ‘court [to] exercise reasonable control over the mode . . . of interrogating witnesses . . . so as to . . . protect witnesses from harassment or undue embarrassment.’” Id. (citation omitted) (affirming trial court’s order excluding certain spectators who knew the child witness during her testimony). The Court cautioned, however, “that exclusionary orders should be a rare exception and undertaken only as a last resort.” Id.

Compare

IX. Special proceedings

Compare

A. Tribal Courts in the jurisdiction

Although Vermont recognizes Native American Indian tribes, “Vermont Native American Indian bands and tribes and individual members of those bands and tribes remain subject to all the laws of the State.” 1 V.S.A. § 853(g). Accordingly, there are no recognized tribal courts in Vermont.

Compare

B. Probate

The Vermont Rules of Probate Procedure provide that “hearings upon the merits of a contested matter shall be open” unless the hearing involves the appointment of a guardian for a minor, in which case the court may exclude any person other than the parties, their counsel or witnesses and other persons accompanying a party to assist that party. V.R.P.P. Rule 77(b). Rule 77 also provides that “[a]ll records of the court are open to public inspection except the following:

(1) A will deposited in the office of the register for safe-keeping pursuant to law;

(2) The index of wills deposited for safe-keeping;

(3) Papers pertaining to an adoption, including the docket entries made by the register and the index cards for adoption cases;

(4) A written relinquishment or surrender of a minor child and papers pertaining thereto;

(5) All mental health evaluations submitted by a mental health professional pursuant to 14 V.S.A. §§ 3067, 3068.

Id. at (e).

Similarly, the Vermont Rules for Public Access to Court Records contain exceptions to the general right of public access for several categories of probate court records:

“Records on file with the probate court in connection with an adoption proceeding, unless disclosure is authorized pursuant to Article 6 of Title 15A.” Pub. Acc. Ct. Rec. Rule 6(b)(1);
“Records on file with the probate court in connection with a guardianship proceeding governed by 14 V.S.A. § 3068, if the court finds that the respondent is not mentally disabled.” Pub. Acc. Ct. Rec. Rule 6(b)(22);
“An evaluation submitted by a mental health professional to the probate court under 14 V.S.A. § 3067, in connection with a guardianship proceeding governed by that section.” Pub. Acc. Ct. Rec. Rule 6(b)(23);
“A will deposited with the probate court for safekeeping, and indices thereof, as provided by 14 V.S.A. § 2 and Rule 77(e) of the Vermont Rules of Probate Procedure.” Pub. Acc. Ct. Rec. Rule 6(b)(25).

Compare

C. Competency and commitment proceedings

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords of the court in mental health and mental retardation proceedings under Part 8 of Title 18, not including an order of the court, except where the court determines that disclosure is necessary for the conduct of proceedings before it or that failure to make disclosure would be contrary to the public interest.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(5). The Reporter’s Notes explains that “Section 6(b)(5) is an exception for records of the family court in involuntary commitment proceedings. Id.

Under 18 V.S.A. § 7103(a) all records and clinical information, other than an order of the court, in involuntary commitment proceedings are confidential, except: (1) as the individual identified or his legal guardian, if any (or, if he be a minor, his parent or legal guardian) shall consent in writing; or (2) as disclosure may be necessary to carry out any of the provisions of this part; or (3) as a court may direct upon its determination that disclosure is necessary for the conduct of proceedings before it and that failure to make disclosure would be contrary to the public interest.

Compare

D. Attorney and judicial discipline

The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for attorney disciplinary proceedings, specifically, “[r]ecords filed or created in the professional responsibility program, except as provided in Rule 12(A), (B), of Administrative Order No. 9, Rules Governing Establishment and Operation of the Professional Responsibility Program.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(21). Under Rule 12 of Administrative Order 9, Rules Governing Establishment and Operation of the Professional Responsibility Program, all records generated in connection with a complaint are confidential unless they are submitted to a hearing panel after the filing of formal charges or unless confidentiality is waived by both the complainant and the respondent attorney. See Rule 12(A)-(B) of Administrative Order 9, Rules Governing Establishment and Operation of the Professional Responsibility Program, available at:https://www.vermontjudiciary.org/about-vermont-judiciary/boards-and-commitees/professional-responsibility

After the filing of formal charges, all attorney disciplinary proceedings and all records submitted to a hearing panel after the filing of formal charges are public unless a party or disciplinary counsel obtains a protective order for specific records or testimony. Id. at (B). Proceedings for transfer to (or from) disability inactive status are confidential – however, the associated orders are public. Id. at (C). Proceedings seeking the interim suspension of a lawyer’s license are public, as are all orders suspending a license on an interim basis. Id. at (D). The decisions of hearing panels are publicly available, although the decisions do not “identify the parties or witnesses unless the matter is one in which a disposition of reprimand, suspension or disbarment is imposed.” Rule 13(E). Notices of public discipline, transfers to (or from) interim suspension status or disability inactive status are required to be “published in the legal journal and in a newspaper of general circulation in each area in which the lawyer actively practiced law.” Rule 13(B).

As for judicial disciplinary proceedings, “Vermont is one of a minority of states that permit public disclosure of judicial conduct proceedings after formal charges are brought against a judge but before any further action is taken.” Herald Ass’n v. Judicial Conduct Bd., 149 Vt. 233, 241, 544 A.2d 596, 601 (Vt. 1988). Accordingly, the Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords filed or created in connection with a proceeding before the Judicial Conduct Board prior to the filing of a formal charge, as provided by Rule 6(7) of the Rules of Supreme Court for Disciplinary Control of Judges.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(20), available at: https://www.vermontjudiciary.org/about-vermont-judiciary/boards-and-committees/judicial-conduct. Under Rule 6(7) of the Rules of Supreme Court for Disciplinary Control of Judges, records of complaints to the Judicial Conduct Board and records relating to the complaint and investigation, including all papers, files, transcripts and communications in proceedings before the Board are confidential unless a formal charge is filed. If a formal charge is filed against the judge, “the Formal Complaint, all subsequent pleadings, exhibits and rulings of the Board, and any hearing related to the Formal Complaint, shall be public.” Id.

In Herald Ass’n v. Judicial Conduct Bd., the Court denied a Vermont newspaper access to certain discovery material in a judicial conduct case pending before the Judicial Conduct Board. Referring to the confidentiality provisions in Rule 6 the Court stated: “[i]n common with all other states, we hold confidential complaints, and investigations of such complaints, unless they result in formal charges. Denial of public access to this stage protects judges from the injury which might result from publication of unexamined and unwarranted complaints.” Herald Ass’n, 149 Vt. at 241, 544 A.2d at 601 (quotation omitted).

Compare

E. Immigration proceedings

Compare

F. Other proceedings

Compare

X. Restrictions on participants in litigation

Compare

A. Media standing to challenge third-party gag orders

The Vermont Supreme Court has held that “the media may directly intervene in a criminal proceeding for purposes of seeking access to proceedings or papers.” State v. Schaefer, 599 A.2d 337, 342, 157 Vt. 339, 344 (Vt. 1991) (citing State v. Tallman, 148 Vt. 465, 468, 537 A.2d 422, 424 (Vt. 1987)). Furthermore, the Vermont Supreme Court has recognized that “[o]nce representatives of the media intervene . . . they have standing to appeal to this Court from orders denying them access to papers or proceedings.” Schaefer, 599 A.2d at 342, 157 Vt. at 344.

Compare

B. Gag orders on the press

The U.S. Supreme Court repeatedly has made clear that the courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 559 (1976) that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Such a gag order is “one of the most extraordinary remedies known to our jurisprudence.” Id. at 562; see also State v. Schaefer, 157 Vt. 339, 354, n.1, 599 A.2d 337, 346 (Vt. 1991) (Allen, C.J., concurring). In rescinding the only prior restraint order in Vermont history, a Superior Court in Vermont v. Morgan, No. S3-79Rc (Vt. Super. Ct., Jan. 17, 1980), recognized that under Nebraska Press Association v. Stuart, a newspaper could not be forbidden to print information already in its possession except under the most extreme and compelling circumstances. The case arose in the context of a related criminal prosecution.

Compare

C. Gag orders on participants

The Vermont Supreme Court has recognized that lower courts can "impose a ‘gag order’ limiting public disclosure of the names of the informants by plaintiffs or plaintiffs’ counsel.” Douglas v. Windham Superior Court, 157 Vt. 34, 46, 597 A.2d 774, 781 (Vt. 1991). However, the Vermont Supreme Court also held that an order prohibiting lawyers and law enforcement officers from commenting on the merits of the case or from making statements “as to any evidence which has been secured in connection with this matter or any other matters that are not of record in the court” was overly broad and unjustified without a finding that the persons involved would make improper disclosures in the absence of the order. State v. Schaefer, 157 Vt. 339, 353-54, 599 A.2d 337, 346 (Vt. 1991) (noting attorneys are restricted by ethical rules from making extrajudicial statements and the order’s intrusion into the rights of the parties and their counsel). In reversing the gag order, the Court also held that such orders “must be narrowly tailored to cover only the improper disclosure that would occur in the absence of the order.” Id.

The Vermont Rules of Professional Conduct prohibit lawyers who are participating or have participated in the investigation or litigation of a matter (or their associates) from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Vt. Prof. Cond. Rule 3.6(a). Notwithstanding this prohibition, lawyers may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of harm to an individual or to the public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) the identity, residence, age, and occupation of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

Vt. Prof. Cond. Rule 3.6(b). Moreover, “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.” Vt. Prof. Cond. Rule 3.6(c).

Compare

D. Interviewing judges

There is no general prohibition on interviewing judges. See, e.g., State v. Bacon, 163 Vt. 279, 308, 314, 658 A.2d 54 (Vt. 1995) (noting that interview of trial judge was published in a newspaper while the case was ongoing). The Vermont Code of Judicial Conduct does, however, provide that “[a] judge shall not,whileaproceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.” Vt. A.O. 10 Canon 3(B)(9). This does not, however, “prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.” Id. At least one Vermont judge has been disciplined for statements that he made in a newspaper interview because “the judge’s statements violated the judicial canon requiring public confidence in the integrity and impartiality of the judiciary.” In re Mandeville, 144 Vt. 608, 609, 481 A.2d 1048, 1049 (Vt. 1984).

Compare

XI. Other issues

Compare

A. Interests often cited in opposing a presumption of access

“To rebut the presumption of openness, the party seeking closure must demonstrate ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (citation omitted); see also Herald Ass’n v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (Vt. 1980) (“any pretrial closure order imposed in this jurisdiction must be based on a clear necessity for the protection of the defendant’s fair trial rights and must be limited in scope by its justification”).

“The common law has long recognized that courts are possessed of an inherent authority to deny access to otherwise public court records when necessary to serve overriding public or private interests.” In re Sealed Documents, 172 Vt. 152, 160, 772 A.2d 518, 526 (Vt. 2001). Before exercising this authority, however, a party must overcome the presumption of public access by showing that “a substantial threat exists to the interests of effective law enforcement, or individual privacy and safety.” Id. at 161, 772 A.2d at 527 (citation omitted); see also In re Estate of Trombley, No. 737-10-11, 2011 Vt. Super. LEXIS 93, at *4 (Vt. Super. Ct. Nov. 7, 2011). “While exclusion is to be avoided under usual circumstances in light of the defendant’s right to a public trial, the court has discretion to weigh competing factors and tailor a limited exclusionary ruling to meet the exigencies of the moment.” State v. Rusin, 153 Vt. 36, 40-41, 568 A.2d 403, 406 (Vt. 1989).

In cases involving young victims of sexual assault, for example, the Vermont Supreme Court has recognized that “[t]he exclusion of certain spectators is to be judged in light of the public trial guarantee, by the usual standard of discretion afforded the trial court under V.R.E. 611(a)(3) which requires the “court [to] exercise reasonable control over the mode . . . of interrogating witnesses . . . so as to . . . protect witnesses from harassment or undue embarrassment.” Id. (citation omitted) (affirming trial court’s order excluding certain spectators who knew the child witness during her testimony). The Court cautioned, however, “that exclusionary orders should be a rare exception and undertaken only as a last resort.” Id.

Compare

B. Cameras and other technology in the courtroom

In 1988, the Vermont courts enacted rules which focused primarily on the recording of court proceedings by news media using the video and still cameras and audio equipment common at that time for broadcasting or publication. See V.R.C.P. Rule 79.2 (civil proceedings); V.R.Cr.P. Rule 53 (criminal proceedings); V.R.P.P. Rule 79.2 (probate proceedings); V.R.A.P. Rule 35 (Vermont Supreme Court proceedings); see also V.R.F.P. 4.0(a)(2) and V.R.E.C.P. 3 (applying Vermont Rules of Civil Procedure, includingV.R.C.P. 79.2 to public proceedings in family and environmental proceedings). Subject to certain exceptions, these rules authorize the media “to record proceedings of the court, in the courtroom and areas immediately adjacent thereto which are generally open to the public” except when the judge assigned to the proceeding in question, on the judge’s own motion or on a motion of a party or request of a witness, directs otherwise prior to or during the proceeding in question. V.R.C.P. Rule 79.2; V.R.Cr.P. Rule 53; V.R.P.P. Rule 79.2; see also V.R.A.P. Rule 35 (“The news media may record proceedings of the Supreme Court, unless the Chief Justice directs otherwise.”). Proceedings are defined broadly to include any event which occurs in open court in an action or court case to which the Vermont Rules of Civil, Criminal or Probate Procedure apply. V.R.C.P. Rule 79.2; V.R.Cr.P. Rule 53; V.R.P.P. Rule 79.2.

Under the current rules, “recording” is defined as “the recording of sounds or images by microphone, tape recorder, camera or other audio or visual recording equipment for live transmission or for later transmission, broadcasting or other use, by a member of the news media, or any other person other than the person creating the official court record.” V.R.C.P. Rule 79.2; V.R.Cr.P. Rule 53; V.R.P.P. Rule 79.2; see also V.R.A.P. Rule 35 (containing substantially similar language). The rules exclude audio recording of bench conferences or conferences between members of the court, between co-counsel or between counsel and his or her client. Id. Moreover, the rules exclude recording in the courtroom during a recess, bench conferences, or proceedings in chambers, unless permitted by the presiding judge. Id.

In May 2019, however, the Vermont Supreme Court promulgated an order abrogating and replacing Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 53 of the Vermont Rules of Criminal Procedure, Rule 79.2 of the Vermont Rules of Probate Procedure and Vermont Supreme Court Administrative Directive No. 28. See http://www.vermontjudiciary.org/attorneys/rules/promulgated. The new rule 79.2, effective September 3, 2019, replaces the previous rules with a statement making the civil rule applicable to proceedings in the criminal and probate divisions. No change has been effected for V.R.F.P. 4.0(a)(2) or V.R.E.C.P. 3, so V.R.C.P. 79.2 will continue to apply to public proceedings in the family and environmental divisions.

These revised rules were developed by a special committee which included representatives of the media. The new rules “reflect[] extensive advances in technology that place the ability to record and transmit images and sound in the hands of any person in a courthouse or courtroom with a smartphone or other portable electronic device in his or her possession.” Reporter’s Note, Order Abrogating and Replacing Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 53 of the Vermont Rules of Criminal Procedure and Rule 79.2 of the Vermont Rules of Probate Procedure and Abrogating Vermont Supreme Court Administrative Directive No. 28.

The new rule governs both possession and use of recording and transmitting devices. Rule 79.2(c) broadly provides that a device may be used non-disruptively anywhere in a courthouse. Rule 79.2(d) contains limits on use applicable to anyone possessing or using a device in a courtroom. The new rule, supplemented by Administrative Order No. 46, lays out a scheme for registration of media and their representatives entitling them to use devices to record and transmit courtroom proceedings. The new rule provides that participants may use devices in the courtroom with some restrictions. The new rule also allows nonparticipants to possess devices in the courtroom, but to use them only in limited circumstances. Devices must be turned off or in silent mode, except during non-evidentiary hearings when the jury or jury pool is not present. The rule also contains provisions applicable to jurors. Rule 79.2(e) sets limits designed both to protect the decorum and the necessary confidentiality of certain proceedings. The new rule allows limits on use, but contains a presumption in favor of media access. Rule 79.2(f) states that the court may waive any of the limitations imposed by the rule on request for good cause and subject to any necessary or appropriate restrictions. The rule abrogates current Administrative Directive No. 28, which concerns use of electronic devices in a courtroom.

Compare

C. Tips for covering courts in the jurisdiction

The Vermont Judiciary consists of an appellate court, which is the Supreme Court, and a trial court, known as the Vermont Superior Court. There are 14 units of the Superior Court, one corresponding to each county. The Superior Court has five divisions: civil, criminal, environmental, family, and probate. The Superior Court also has a Judicial Bureau, which has statewide jurisdiction over civil violations.

Additional information for various divisions of the Vermont court system is available at: https://www.vermontjudiciary.org/court-divisions.

Details regarding upcoming court hearings are available at: https://www.vermontjudiciary.org/court-hearings.

The Vermont Supreme Court issues opinions on Fridays, typically by 11 am EST. Published opinions and entry orders are available at: https://www.vermontjudiciary.org/supreme-court/published-opinions-and-entry-orders. Audio recordings of oral arguments from the past two years are available at: https://www.vermontjudiciary.org/supreme-court/audio-recordings-oral-arguments.

Civil and criminal dockets are publicly available in Vermont. However, online access is only available for civil dockets (excluding family division cases). See https://secure.vermont.gov/vtcdas/user

To obtain pleadings and orders listed on criminal or civil dockets or trial transcripts, you need to contact the appropriate unit and division of the Vermont Superior Court. Contact information for the units and divisions of the Vermont Superior Court are available at: http://www.vermontjudiciary.org/court-locations.

Compare

Author

Open Courts Compendium

I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

B. Overcoming a presumption of openness

C. Procedural prerequisites to closure

II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

B. Procedure for requesting access in criminal cases

C. Procedure for requesting access in civil matters

D. Obtaining review of initial court decisions

III. Access to criminal proceedings

A. In general

B. Pretrial proceedings

C. Criminal trials

D. Post-trial proceedings

E. Appellate proceedings

IV. Access to criminal court records

A. In general

B. Arrest records

C. Dockets

D. Warrants, wiretaps and related materials

E. Discovery materials

F. Pretrial motions and records

G. Trial records

H. Post-trial records

I. Appellate records

J. Other criminal court records issues

V. Access to civil proceedings

A. In general

B. Pre-trial proceedings

C. Trials

D. Post-trial proceedings

E. Appellate proceedings

VI. Access to civil records

A. In general

B. Dockets

C. Discovery materials

D. Pre-trial motions and records

E. Trial records

F. Settlement records

G. Post-trial records

H. Appellate records

I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

B. Juror identities, questionnaires and other records

C. Grand jury proceedings and records

D. Interviewing jurors

VIII. Proceedings involving minors

A. Delinquency

B. Dependency

C. Other proceedings involving minors

D. Prohibitions on photographing or identifying juveniles

E. Minor testimony in non-juvenile courts

IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

D. Attorney and judicial discipline

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

C. Gag orders on participants

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

B. Cameras and other technology in the courtroom

C. Tips for covering courts in the jurisdiction