Where’s the key? 

In re Affidavit of Probable Cause2019 VT 43

By Elizabeth Kruska

Interestingly, court records—by and large—are public documents. Suppose you read about a legal case on the interwebs and you think, “Huh. I think I’d like to know more about that case.” You can. You just go to the courthouse, ask to see the file, and in most cases, you get to look at it. You can even make copies. I did that just yesterday.

But access isn’t unfettered, and not everything is public. We’ve got rules about when things are public and when they aren’t.

So here, a petitioner was interested in a legal case involving a potential defendant. According to the opinion, there was a highly publicized incident that led to someone being accused of disorderly conduct. The petitioner, wanting primary source information, went to the court clerk to see the file. The first time he went, he was told there wasn’t a case involving this person. The next time he went, he asked what the procedure was to unseal a record. (This isn’t clear to me, but must be he thought there might be a record but it was sealed?) He appealed to the court to give him access to the record, and the judge denied that. The petitioner appealed this denial to the Vermont Supreme Court.

This is purely a legal issue, so SCOV reviews de novo.

There’s a set of rules called the Vermont Rules of Public Access to Court Records. Generally, the spirit of the rules is to provide open access to court files. But, there are some exceptions, which are also set forth by the rules.

In this case, the petitioner was denied access to the court file he wanted to see because although a criminal case may have been filed, the court did not find probable cause. Rule 6(b)(24) of the public access rules says “if a judicial officer does not find probable cause to believe that an offense has been committed and that defendant has committed it” then the records associated with it are not publicly available.

When the court denied the petitioner’s request to see the file, it noted the case wasn’t sealed, but instead was excluded from disclosure under the rule noted above. Although records are meant to be public, the court does retain authority to deny access if it’s necessary to serve overriding interests.

The petitioner argued that he has a First Amendment right to see the records, as generally records are available to the press. The trial court indicated in its ruling that there wasn’t any sort of showing that this applied to cases like this one where probable cause was not found.

But SCOV reverses and remands for a hearing, and not specifically because of the First Amendment issue, but because there might be another rule that comes in to play.

Rule 7 of the V.R.P.A.C.R. (which is cumbersome to type, by the way), gives judges the ability to provide access to records that would otherwise be closed under Rule 6. The order can only be issued upon a finding of “good cause specific to the case before the judge and exceptional circumstances.”

There isn’t anything in the record to show that there was an analysis done under Rule 7, so SCOV sends the case back to the trial court for there to be such a hearing. SCOV also says the First Amendment issue can be considered at that hearing. SCOV notes there are plenty of good reasons why cases where probable cause was not found are shielded from public access. But, there needs to be a hearing with all the parties present – the petitioner, the State’s Attorney, and the potential defendant, so that the court can hear all the necessary information in making a decision about whether to provide access to this information.