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In re Affidavit of Probable Cause

Supreme Court of Vermont

June 28, 2019

In re Affidavit of Probable Cause Jacob Oblak, Appellant

          On Appeal from Superior Court, Chittenden Unit, Civil Division Kevin W. Griffin, J.

          Jacob Oblak, Pro Se, Essex Junction, Plaintiff-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          SKOGLUND, J.

         ¶ 1. In this matter, Jacob Oblak petitioned the superior court for access to an affidavit of probable cause filed in a criminal case and was denied. He appeals to this Court and argues that Vermont Rule of Public Access to Court Records 6(b)(24), which excludes from public access records filed in a criminal proceeding when no probable cause has been found, was not intended "to transform traditionally public documents [including affidavits of probable cause] into secret ones." He further argues that the lower court's interpretation of Rule 6(b)(24) violates the First Amendment. Because we find that the lower court should have considered his petition in light of the "Exceptions" provisions of Rule 7, we reverse and remand. V.R.P.A.C.R. 7(a)(3).

         ¶ 2. Petitioner sought access to the affidavit of probable cause filed in connection with a criminal charge of disorderly conduct against W.R. and the court's decision wherein it found no probable cause in that matter. According to the petitioner, the incident that formed the basis for the allegation against W.R. had garnered much public and press attention. For his own purposes, petitioner sought the documents from the criminal-division clerk twice. The first time he requested the documents, the clerk explained that the court had no record of any case involving W.R. Petitioner returned the next day and spoke with a different clerk. Petitioner asked what procedure was available to petition the court to unseal a sealed record and was told that no remedy was available to him and that the court had no record to unseal concerning W.R. Pursuant to Rule 6(h), petitioner appealed the denial of access to the records to the civil division, which the civil division denied. Petitioner timely appealed said denial to this Court.

         ¶ 3. In this matter, there are no factual issues in dispute and the petition raises a pure question of law as to the public's right of access to court records. We review questions of law de novo, which is nondeferential and plenary. Rhoades Salvage/ABC Metals v. Town of Milton Selectboard, 2010 VT 82, ¶ 6, 188 Vt. 629, 9 A.3d 685 (mem.) (citing Searles v. Agency of Transp., 171 Vt. 562, 562, 762 A.2d 812, 813 (2000) (mem.) ("The relevant facts, set forth above, are not in dispute; therefore, the issue is one of law, and our review is nondeferential and plenary.")).

         ¶ 4. The fulcrum of this matter is the Vermont Rules of Public Access to Court Records (PACR).[*] In 2001, this Court enacted the rules to "govern access by the public to the records of all courts and administrative offices of the Judicial Branch of the State of Vermont," and announced that "[t]hey shall be liberally construed in order to implement the polices therein." V.R.P.A.C.R. 1. Rule 4 explains 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." Rule 6, titled "Case Records," reiterates the policy that "[t]he public shall have access to all case records" per the rules' provisions, but then outlines thirty-five exclusions to this general policy. Rule 6(b)(24), the exclusion at issue in this appeal, excludes from public access:

Records 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.

         ¶ 5. When discussing the Rule 6(b)(24) exclusion, the Reporter's Notes state "[n]o statute or rule restricts public access to such records." Rather, "[t]his exception [was] based on the [drafting] Committee's determination that records filed in court in connection with the initiation of a criminal case should not be open to the public until and unless a judicial officer finds that 'there is probable cause to believe that an offense has been committed and that the defendant has committed it.'" Reporter's Notes, V.R.P.A.C.R. 6 (quoting V.R.Cr.P. 4(b)). This Court adopted the rules as proposed by the Committee.

         ¶ 6. As a preliminary matter in its order denying petitioner access to the requested documents, the court noted that the affidavit and court decision requested were not sealed, but instead were specifically restricted from public access under Rule 6(b)(24). Quoting from In re Sealed Documents, 172 Vt. 152, 160, 772 A.2d 518, 526 (2001), the court reiterated "[t]he 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" to support its conclusion that denial of access to the requested records was appropriate in accordance with the rule.

         ¶ 7. The court then turned to petitioner's First Amendment argument. The court explained that when addressing the openness of court proceedings based on the First Amendment in the first instance, the United States Supreme Court has looked to history to determine whether a public right of access exists. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) ("From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice."). The court also referenced Greenwood v. Wolchick, wherein we wrote:

In analyzing a claim of a First Amendment right of access to a criminal proceeding other than a trial, the United States Supreme Court noted that our decisions have emphasized two complementary considerations[:] whether the place and process has historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question.

149 Vt. 441, 443, 544 A.2d 1156, 1158 (1988) (quotation and alterations omitted). The court then held that petitioner failed to show that records of criminal proceedings where no probable cause was found have historically ...


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