State high court finds no right of access to presentence reports

VERMONT–In early August, the state Supreme Court in Montpelier unanimously held that the public’s qualified First Amendment right of access does not attach to presentence investigation reports (PSIs). The court agreed with a newspaper’s argument that PSIs should be public, but said that it was up to the legislature to repeal the state statute rendering them confidential.

The Supreme Court held that the First Amendment right of access to court documents was inapplicable to PSIs because they are not prepared or filed by the parties, they do not become part of the public record of a case and are prepared at the request of and for the benefit of the court.

In 1996, the St. Johnsbury Caledonian-Record moved to intervene in two criminal proceedings in order to gain access to the defendants’ PSIs, which are prepared by the probation department at the request of the sentencing court. PSIs typically contain such information as prior criminal activity by the defendant and information on his characteristics, financial condition, behavior, or any other factors necessary to enable the court to impose an appropriate sentence.

The judges in both cases denied the newspaper’s requests because a Vermont statute states that PSIs are confidential.

On appeal, the Supreme Court noted that as long as PSIs are not public, press coverage of sentencings will necessarily be incomplete, and that the public will learn only part of the reason for a given sentence. The court observed that the lack of information may lead to public confusion and misunderstandings, as when the public knows the facts of the crime and hears the victim-impact statement, but never learns the mitigating factors reported in the PSI.

In a case decided in late August, the court held that a criminal defendant could have limited access to the PSI of another criminal defendant if a showing of materiality could be made. (Vermont v. LaBounty; Media Counsel: Philip White, Montpelier)