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In re VSP-TK / 1-16-18 Shooting (Gray Television, Inc.)

Supreme Court of Vermont

July 19, 2019

In re VSP-TK / 1-16-18 Shooting (Gray Television, Inc., Appellant)

          On Appeal from Superior Court, Washington Unit, Criminal Division Howard E. Van Benthuysen, J.

          Robert B. Hemley and Erin M. Moore of Gravel & Shea PC, Burlington, and Chad R. Bowman of Ballard Spahr LLP, Washington, DC, for Appellant.

          Rory T. Thibault, Washington County State's Attorney, Barre, for Appellee State.

          PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Dooley, J. (Ret.), Specially Assigned

          ROBINSON, J.

         ¶ 1. The pivotal question in this case is whether a trial-court order granting a motion to quash a subpoena issued in the context of an inquest is categorically exempt from public disclosure. We hold that the order is a public record presumptively subject to disclosure under the Rules for Public Access to Court Records, and conclude that there is no basis for sealing the record in this case. Accordingly, we reverse the trial court's denial of appellant Gray Television, Inc.'s motion to unseal the order.

         ¶ 2. This case arose out of an inquest convened under 13 V.S.A. § 5131 to investigate an incident in which police fatally shot a suspected bank robber after a standoff near Montpelier High School. The day after the shooting, the State applied to the Washington Superior Court, Criminal Division, to open an inquest. The same day, the State served a subpoena on WCAX-TV, a station of appellant Gray Television, Inc., requiring that the station produce all of its unedited video recordings of the incident.

         ¶ 3. Appellant moved to quash the subpoena, citing 12 V.S.A. § 1615, a statute enacted in 2017 that protects journalists from compelled disclosure of information. 12 V.S.A. § 1615(b)(1)-(2). At the beginning of the court's hearing on the motion, the State requested that the proceedings be closed, arguing that inquests are secret, investigatory proceedings. The trial court agreed and excluded the public from the evidentiary portion of the hearing on the State's motion. On February 16, 2018, following the hearing, the court issued a written decision granting the motion to quash. This was the first court decision interpreting § 1615 since its enactment. On its own initiative, and in light of its ruling excluding the public from the evidentiary portion of the hearing on the State's motion, the court noted, "[i]nasmuch as this is an ongoing inquest this decision shall remain under seal, as shall the entire inquest file, and shall not be available to the public unless and until the inquest has concluded with indictments or informations."

         ¶ 4. The State completed the investigation and in April 2018 publicly announced that it would not bring any charges. Appellant subsequently moved to unseal the court's February 16 decision. The State opposed unsealing it. The trial court denied the motion. It recognized that no statute explicitly makes all inquest proceedings confidential, but concluded that under our case law, inquests, including transcripts, evidence, and court orders, are confidential and secret. Applying Vermont's Public Records Act (PRA), the court concluded that the order was exempt from disclosure pursuant to 1 V.S.A. § 317(c)(1), which exempts from disclosure records designated by law as confidential. Accordingly, it denied appellant's motion to unseal the order.

         ¶ 5. Appellant contends that the trial court improperly relied on the PRA, 1 V.S.A. §§ 315-20, rather than the Vermont Rules for Public Access to Court Records (PACR Rules). It argues that the PACR Rules provide that "[t]he public shall have access to all case records" except for records falling within a specified list of exceptions, none of which apply here. V.R.P.A.C.R. 6(a)-(b). Accordingly, pursuant to the PACR rules, the order is presumptively subject to public disclosure. It further argues there is no basis under PACR Rule 7, which governs the sealing of otherwise public court records, to seal the opinion. Appellant alternatively argues that the public's right of access to the trial court's order on the motion to quash is constitutionally protected.

         ¶ 6. The State argues that the trial court correctly determined the order was not subject to disclosure under the PRA, and that while court records are presumptively open to the public under the PACR Rules, this order should remain sealed because although "[i]nquest proceedings are not expressly addressed" in the list of exceptions from disclosure under the PACR Rules, a number of the exceptions should be read to apply to it.

         ¶ 7. The trial court's ruling sealing its order was based on its legal determination that all records associated with inquest proceedings, including the court's order on a motion to quash a subpoena, are categorically confidential and exempt from public disclosure. We review this legal determination without deference. Estate of Lott v. O'Neill, 2017 VT 11, ¶ 5, 204 Vt. 182, 165 A.3d 1099.

         ¶ 8. We note at the outset that given the way this case unfolded, two related but distinct concepts-the presumptive public or nonpublic nature of certain case records on the one hand, and the court's authority to seal otherwise publicly accessible records in a particular case, on the other-became intertwined. If the applicable law categorically precludes disclosure of the court's order, then no specific sealing order would be required to effectuate this requirement. Likewise, even if the applicable law authorized disclosure of the order, the court might have had discretion to seal it. See In re Sealed Documents, 172 Vt. 152, 159-63, 772 A.2d 518, 525-28 (2001) (discussing circumstances in which court records subject to public disclosure may nevertheless be sealed); see also V.R.P.A.C.R. 7(a) (describing circumstances in which court may seal records that are otherwise subject to public disclosure). The trial court's ruling sealing the order in this case flowed from its conclusion that the order is categorically shielded from public disclosure under the applicable public-access law because it was issued in the context of an inquest proceeding; the court did not purport to determine that sealing is called for due to case-specific factors.

         ¶ 9. With that understanding, we conclude that issues concerning public access to judicial case records should be decided pursuant to the PACR Rules, rather than the PRA, and that the court order at issue is a judicial case record. Under the PACR Rules, all case records are public records presumptively subject to public disclosure unless an exception applies, and no categorical exception from disclosure applies to the February 16 order. In addition, no basis exists in this case to seal or redact the order at issue pursuant to the court's authority to seal or redact otherwise publicly accessible records.[1]

         I. PACR versus PRA

         ¶ 10. As an initial matter, we hold that the proper framework for evaluating whether the court's order is categorically excluded from public disclosure is found in the Vermont Rules for Public Access to Court Records, as opposed to the Vermont Public Records Act.

         ¶ 11. As the U.S. Supreme Court has recognized, "[e]very court has supervisory power over its own records and files." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978). In exercise of this authority, this Court adopted Rules for Public Access to Court Records in 2001.[2]The rules were written to be comprehensive, reflecting all then-existing statutory and procedural rule provisions on public access to court records, and adding additional provisions. See V.R.P.A.C.R. 1; Reporter's Notes, V.R.P.A.C.R. 1. In recognition of the fact that some access statutes may have been missed in drafting the rules, and new access statutes may be adopted in the future, the PACR Rules adopted by reference any other statutory access restrictions, at least with respect to case records. See V.R.P.A.C.R. 6(b)(35); Reporter's Notes, V.R.P.A.C.R. 1. The PACR Rules are thus distinct from the PRA enacted by the Legislature and signed by the Governor, although by design the Rules generally mimic or incorporate where relevant the statutory protections of the PRA and other statutes.

         ¶ 12. We have previously questioned whether the PRA applies in its own right to court case records. See, e.g., Herald Ass'n v. Judicial Conduct Bd., 149 Vt. 233, 240 n.7, 544 A.2d 596, 601 n.7 (1988) (noting that "[i]t is doubtful that the public records law applies at all to judicial records in view of the specific statutes in the trial courts and the power of the judicial branch over its records"). And in a 2012 case, we applied the PACR Rules to a request to seal search warrants and related materials. In re Essex Search Warrants, 2012 VT 92, 192 Vt. 559, 60 A.3d 707. We noted that following the Court's adoption of the PACR Rules, those rules governed public access to court records. Id. ¶ 20 n.8. In her concurrence, Justice Skoglund noted that the Court likely applied the PACR Rules "because of a general understanding that Vermont's Access to Public Records Act does not govern judicial materials." Id. ¶ 37 (Skoglund, J., concurring).

         ¶ 13. We now make more explicit what we have long assumed, and noted briefly in Essex Search Warrants: Requests to courts for public access to case records should be evaluated under the Vermont Rules for Public Access to Court Records. This holding is consistent with our longstanding caselaw, and the provisions of the PRA.

         ¶ 14. As far back as 1987, this Court has applied law other than the PRA in evaluating questions concerning access to court records. Before the Judiciary adopted the PACR Rules, statutes distinct from the PRA regulated public access to judicial case records. See 4 V.S.A. § 652, repealed by 2013, No. 67, § 15 (relating to records of superior court); 4 V.S.A. § 693, repealed by 2009, No. 154 (Adj. Sess.), § 68 (relating to records of former district court). In 1987, in evaluating a request to the court to seal an affidavit of probable cause post-arraignment, a plurality writing for the Court distinguished between agency records subject to the PRA and court records governed by one of the more specific statutes. State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 426 (1987). We explained that before the affidavit of probable cause is filed with the court, it is an agency record subject to the PRA. Id. Once it is reviewed by a court, public access to the record is governed by the applicable statute-in ...

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