There are no cases addressing access under the CPRA to physical evidence in the possession of investigating agencies. Some physical evidence would likely not constitute a writing within the meaning of the CPRA. See Cal. Gov’t Code § 7920.545. Physical evidence or records pertaining to physical evidence relating to criminal investigations are likely subject to the discretionary withholding provisions of Section 7623.600 as investigatory records or investigatory files. Once introduced in a judicial proceeding, however, physical evidence or records of physical evidence become subject to the public’s constitutional and common law rights of access to judicial proceedings generally. Courts, as the guardians of physical evidence during ongoing proceedings, are not likely to allow members of the public to take possession of physical evidence that cannot be copied, though viewing of some physical evidence may be arranged through the court.
In Comm’r of Emergency Svcs v. Freedom of Info. Comm’n, 330 Conn. 372 (2018), held that criminal search and seizure statutes that required the return of seized property pursuant to a warrant in a criminal investigation did not create an exemption under FOIA.
The Act does not generally exempt access to physical evidence in the possession, custody or control of law enforcement, prosecution or regulatory agencies. However, the Act does specifically exempt access to such material that is evidence of a sex offense involving a minor. O.C.G.A. § 50-18-72(a)(32). Further, the Act provides that exhibits tendered to a court as evidence in a criminal or civil trial shall not be open to public inspection without approval of the judge assigned to the case. § 50-18-72(c).
OPRA only applies to “government records,” which are defined as:
any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.
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).
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.”