In re VSP-TK / 1-16-18 Shooting (Gray Television, Inc., Appellant)
Appeal from Superior Court, Washington Unit, Criminal
Division Howard E. Van Benthuysen, J.
B. Hemley and Erin M. Moore of Gravel & Shea PC,
Burlington, and Chad R. Bowman of Ballard Spahr LLP,
Washington, DC, for Appellant.
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
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
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
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.
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.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