Vermont: Court Documents and Hearings

Summary

This educational webinar, hosted by the New England First Amendment Coalition, features instructors Emily Sweeney, Hillary Rich, and Harrison Stock, delving into the intricacies of Vermont's court system. The session offers an in-depth exploration of public access to court proceedings, recording rights in courtrooms, and accessing court records, emphasizing statutes, procedural rules, and exceptions. It also provides guidance on contesting access denials and understanding the nuances of juvenile proceedings, grand jury confidentiality, and the impact of media registration on recording rights. This comprehensive overview aims to educate on navigating Vermont's legal landscape, highlighting the coalition's efforts to promote transparency and public understanding of judicial processes.

Takeaways

• 😊 There is generally a presumption of public access to court proceedings and records in Vermont, with some exceptions
• 😃 Rules around access to court hearings and records in Vermont come from various sources like court procedures, statutes and case law
• 📜 There are several types of court proceedings that are typically closed to the public, like juvenile proceedings
• 🔐 Parties can request the court be closed but face a high bar to justify closure
• 🎥 Media has the right to visually and orally record most public court proceedings with some limitations
• 🗒️ The public can access records from public court proceedings, with exceptions for sensitive records
• 🔒 Parties can request records be sealed but must clearly justify the privacy need
• ❗️If denied access to a court hearing or record, the media and public have options to challenge the denial
• 📢 Special access to non-public court records may be available for certain individuals/groups
• 🏛 The rules for access to court records are separate from the public records act and specific to the court system

Q & A

What are the main sources for rules regarding access to court proceedings in Vermont?

The main sources are the rules of procedures for specific courts, certain statutes, and case law or common law.

What test does the court use to analyze whether a criminal proceeding should be open or closed?

The court looks at whether the place and process have been historically open to the press and public, and whether public access plays a significant positive role in the functioning of the particular process.

What are some exceptions to the general right of public access to hearings?

Some exceptions are grand jury proceedings, juvenile proceedings, proceedings involving certain protections for child victims of sexual offenses, and cases where a party requests the court be closed.

What rules govern attorneys and judges when speaking publicly about ongoing cases?

Attorneys are bound by rules of professional conduct limiting statements that could prejudice a case. Judges are bound by a judicial code of ethics restricting comments that could affect case outcomes.

What are the differences in recording rights between participants, non-participants, and registered media?

Registered media have the broadest recording rights. Participants can record orally but not visually. Non-participants have more restrictions, like turning phones off when the jury is present.

How can the media challenge denied access to a hearing?

The media can file a motion to intervene at the trial court level. If unsuccessful, they can appeal to the Vermont Supreme Court or petition for extraordinary relief.

What is the process for requesting access to a sealed court record?

File a motion under Rule 9C specifying the case and record sought. The court must promptly rule. An appeal may be possible with court permission.

When would you appeal a records denial to a court's presiding judge rather than filing a motion?

Appeal to the presiding judge if denied by a records custodian, not in an ongoing case. This follows public records request procedures.

What information must be provided in a motion to seal a court record?

The motion must identify the specific filing, privacy interests served, legal authority, proposed redactions, confirmation of service on affected parties, etc.

What is the standard of proof required for a court to seal a record over public objection?

The court must find by clear and convincing evidence that good cause and exceptional circumstances exist, and no reasonable alternative to sealing exists.

Outlines

00:00

😃 Overview of public access rules for Vermont state courts

This paragraph provides an introduction to the webinar, which will explain public access rules for hearings and records in Vermont state courts. It introduces the instructor, Emily Sweeney from the Boston Globe, and the presenters from the ACLU of Vermont who will explain the court rules in detail.

05:01

😃 Rules and exceptions for public access to court hearings in Vermont

This paragraph discusses sources of rules regarding public access to court hearings in Vermont, such as court procedures, statutes, and case law. It explains that the right of access is broad but qualified, with some statutory exceptions like grand jury proceedings and juvenile cases.

10:02

😃 Requirements and process for closing courtrooms in Vermont

This paragraph covers the requirements and process for closing a courtroom to the public upon request of a party to a case. It explains there is a high bar to overcome the presumption of openness, including showing a compelling interest and no reasonable alternatives.

15:02

😃 Limits on sharing of information by attorneys and judges in Vermont

This paragraph discusses ethical rules limiting what attorneys and judges may share publicly about ongoing cases in Vermont outside of court proceedings.

20:03

😃 Media access and recording rules for Vermont courts

This paragraph explains the registration system for media access to Vermont courts, the different rules on recording and transmission of images and sounds based on location (in courthouse vs. courtroom) and attendee status, and judges' ability to limit coverage.

25:04

😃 Accessing recordings and reports of Vermont court proceedings

This paragraph notes that court video recordings of public proceedings become public records which can be duplicated. Audio recordings of Vermont Supreme Court oral arguments are also available online.

30:06

😃 Overview of rules and processes for accessing Vermont court records

This final paragraph summarizes the discussion from the presenters about navigating rules and appealing denials to access different types of Vermont court records, using specific procedures based on the reason for and source of the denial.

Keywords

💡courtroom

The video discusses rules and procedures for accessing courtrooms and court proceedings in Vermont. 'Courtroom' refers to the actual room where legal proceedings and trials take place. The video outlines regulations around public and media access to courtrooms for observing and recording hearings.

💡hearings

'Hearings' refer to the legal proceedings that take place in a courtroom. The video focuses extensively on public access rights to different types of court hearings in Vermont, such as exceptions for certain juvenile, grand jury, or confidential proceedings.

💡records

'Records' in this context refers to the official legal documents associated with court cases, such as motions, filings, orders, etc. The video discusses in depth the rules and procedures for public access to view or acquire copies of different types of court records in Vermont.

💡access

A core theme of the video is explaining what level of 'access' the public and media have to courtrooms, hearings, and records in Vermont. This includes access rights as well as limitations and exemptions.

💡public

The 'public' refers to general citizens and public observers, as opposed to parties directly involved in a legal case. Rules for public access to hearings and records are covered extensively.

💡media

The 'media' refers specifically to news media organizations and journalists. The video outlines special access allowances and restrictions for registered media in Vermont courtrooms.

💡limits

While the default is broad public access, the video discusses various 'limits' and exceptions where court proceedings or records may be closed or confidential.

💡appeals

If improperly denied access, the video advises legal 'appeals' processes for the public and media to challenge and potentially overturn restrictions on court access.

💡custodian

A 'custodian' is the role responsible for managing and providing access to court records. The video discusses appealing to custodians and judges if record requests are denied.

💡rules

The video aims to explain the specific 'rules,' statutes, and precedents that govern public and media access for Vermont state courts and records.

Highlights

There is no comprehensive rule or statute that governs public access to court proceedings in Vermont

Vermont court hearings are presumptively open to the public with closure being the exception rather than the rule

In criminal context, court has a test to analyze whether a proceeding should be open or closed

Grand jury proceedings themselves are closed by statutes that limit who can even be in the courtroom

Juvenile proceedings are almost invariably closed - no access to hearings and limits on publicizing information

Attorneys are bound by professional conduct rules limiting extrajudicial statements that could prejudice a case

Registered media have broader rights to visually and orally record court proceedings compared to other attendees

The presumption for access to court records is that the public has access to a record of that proceeding

Even if a record is not publicly accessible, journalists/researchers may still get access under special provisions

Rules detail process to seal records, objections allowed, and requires court to use least restrictive means

Media can intervene at trial court level to challenge limits on access, and appeal an unsatisfactory decision

If denied a record due to a court ruling, file a motion under Rule 9 to access non-public record

If denied by records custodian, appeal to presiding judge within 7 days under Rule 6

Custodians must follow public records act timelines for response and explain procedure for appeals

Can appeal records denial by custodian to state Supreme Court within 30 days

Transcripts

I'm Justin Silverman of the New England

First Amendment Coalition thank you for

joining us for this lesson on New

England state courts this lesson is the

second in our series on state court so

if you haven't already please view the

introductory class for your respective

State before moving on to this lesson

all classes can be found in our foi

guide at mefact.org as well as on our

YouTube channel fivefreedoms

in addition to state courts we also

offer lessons on state public record and

open meeting laws as well as the federal

Freedom of Information Act each class

builds off one another and they all

collectively provide a curriculum you

won't find anywhere else

before we begin today's lesson a special

thanks to everyone who is helping us

make these classes happen

BJ New England the Rhode Island

foundation and the New England society

of news editors

appreciate everyone's support

now to introduce you to today's

instructor

Emily Sweeney hey everybody I'm Emily

Sweeney from the Boston Globe and I want

to thank you all for joining us for this

webinar which is brought to you by the

New England First Amendment coalition

now this session is going to take a

deeper dive into the courts in Vermont

and with us is Hillary rich and Harrison

stock and their staff Attorneys at the

Vermont ACLU and they're going to

explain in Greater detail how the courts

work in the Green Mountain State

Harry and Hillary thanks so much for

being here

thanks for having us Emily

thanks great to be back

so and this part we're going to be

discussing specific proceedings and

Records next slide please

so agenda for today I'm going to first

start by discussing the specific rules

for accessing Court hearings and what

the Press is allowed to record Harry is

then going to be discussing with you all

the specific rules for accessing court

records weather records can be sealed

and how to contest dealings and then

we're both going to discuss what you

should do if you're denied access to a

hearing or to a record and there'll be

also time for questions at the end next

slide

so first regarding the sources for

courtroom rules regarding access to

hearings now there's no comprehensive

rule or statute that governs public

access to court proceedings in Vermont

uh instead we pull these rules from a

couple of different sources and one of

those are the rules of procedures for

specific courts you might remember last

time we talked about how there are six

different divisions of Vermont trial

courts and the Vermont Supreme Court and

each of these has their own sets of

rules uh today we're going to be

focusing primarily on the civil and

criminal rules of procedure rules also

come from certain statutes some statutes

make exceptions for specific types of

proceedings it's important to note that

when we're talking about statutes we are

not talking about the Vermont open

meeting law that law actually includes

explicit provision that it does not

apply to judicial adjudication in

Vermont and we're also pulling from the

case law or the common law as sources of

rules this is when courts issue

decisions that are analyzing or enter in

constitutions and statutes and in

Vermont the courts have held that there

is a general right of public access to

hearings next slide please

however that right of access is Broad

but qualified and that means that there

is a right to access after the public

and the press to court hearings but the

right does have some limits another

Vermont court hearings are productively

open to the public with closure being

the exception rather than the rule and

in the criminal context specifically the

court has a certain test to analyze

whether a proceeding should be open or

closed and it looks to the whether the

place and process have been historically

open to the press in public and if

Public Access plays a significant

positive role in the functioning of the

particular process in question next

slide please

so although the right is Broad there are

of course some exceptions some of these

are found in statutes rules and case law

it's looking first at Grand Jury

proceedings although uh jury selection

is broadly open to the public grand jury

proceedings themselves are closed by

statutes that actually limits who can

even be in the courtroom when the grand

jury proceedings are ongoing there is

also a statute that says members of the

grand jury in Vermont have to take an

oath uh promising to keep deliberation

secret of the grand jury and therefore

grandeurs may not be interviewed about

their deliberations

juvenile proceedings also are an

exception to this right of broad access

and in fact the courts have said that

juvenile proceedings are almost

invariably closed and this means that

delinquency and dependency proceedings

are typically closed to the public uh

there's no access to juvenile court

hearings and there are limits on the

ability to even publicize a juvenile's

name or image without the child or

guardian's consent in juvenile

proceedings

there's also a specific Vermont statute

under which a person under 21 who

commits a crime in Vermont can petition

for something called youthful offender

status and in those cases their case is

actually transferred to the family court

which adjudicates the position on that

application and if they accept that case

actually just stays confidential

there are also protections for children

in non-juvenile courts so for example

child victims of certain sexual offenses

May testify on videotape or through

closed circuit systems and even in those

cases there is a general presumption

against closing the court but the court

still does have discretion there are

also a category of exceptions for when a

party requests that the court be closed

and that is sold primarily from case law

and we'll be discussing it in more

detail in the next slide

so now talking about closing the

courtroom Upon A party's request like we

just said there's a broad right to

access and there's actually even the

presumption of access and to overcome

that a party-seek enclosure has to

demonstrate that closer closure is

essential to preserve higher values and

narrowly tailored to serve that interest

any pre-trial closure order must have a

clear necessity for the protection of

the defendant's right to a fair trial

and be limited in scope and in criminal

proceedings specifically uh closure is

constitutional only when it serves a

compelling interest there's a

substantial probability that without

closure that interest would be harmed

and there's no alternative to protect

that interest

next slide please

so even if uh you have now overcome that

first hurdle which should be a low one

and have access to the courts there are

also the limits on what attorneys and

judges might be willing to share with

you outside of just the hearing itself

attorneys are bound by their own rules

of professional conduct and one of those

rules uh states that an attorney shall

not make extrajudicial statements that

they know or reasonably should know will

be disseminated and have a substantial

likelihood a materially prejudicing a

case now there are um options for what

an attorney can share with you uh things

like the claims the defenses General

identity of the parties typically

scheduling requests for public

assistance and if an attorney's client

has been prejudiced by other statements

made they can make sometimes statements

mitigating that prejudice that their

client has experienced uh judges are

also Bound by a code of ethics called

the Vermont code of judicial conduct now

there's not a Prohibition on

interviewing judges but there is a rule

that a judge shall not while a case is

ongoing make any public comment that

might be reasonably expected to affect

the case outcome impair fairness or

substantially interfere with the case

however a judge can make public

statements in just the course of their

official duties or explaining Republic

information the procedure of the Court

next slide please

also want to talk to you all about

rights regarding reporting in the

courtroom so you've accessed the hearing

and now you would like to record what's

going on and the court divides attendees

into different categories or buckets and

different rights are attached depending

on who you are in the courtroom and

there's different rights for

participants non-participants and the

registered media

so if you're interested in becoming a

registered media you would typically

apply registration certificate with the

court administrator there's a specific

court order

um that says how to do this it's a

pretty straight forward form you can

apply for permanent registration or for

one-time registration or if you don't

have a permanent or one-time

registration you can apply to act

temporarily this should not be a

difficult form to complete but you

shouldn't receive a lot of procedural

hurdles but just as a caveat the court

has no obligation to hold up proceedings

while you're getting your ducks in a row

so you'd want to get that registration

certificate in advance of actually the

hearing that you want to attend

next slide please

so not only are there limits depending

on who you are but there's also limits

depending on where you are so looking

first at rights about recording when

you're in the court house more broadly

so this is uh pulled from uh Vermont

rules of civil procedure 79.2 and any

person may possess and use a device in

public areas non-disruptively but

participants and non-participants cannot

record or transmit images or sounds of

an individual outside of a courtroom

without their consent registered media

however have much broader recording

rights they can generally orally and

Visually record although there are

limits on what they can do with

sequestered Witnesses confidential

proceedings the jury except when they're

seated and it's necessary and they may

visually record but not orally record uh

bench conferences conferences between

co-counsel and activity during recess so

for example if the judge calls the

attorneys up to the bench a member of

the registered media can record that

discussion with um just visually but

they can't audio record that

confidential dialogue between the judge

and the attorneys

next slide please

recording in the courtroom the rules are

a little bit different primarily for

participants and non-participants now no

one can use a device to orally

communicate or use a device with a

distracting sound so you can't take a

loud phone call when you're in the court

room which is pretty obvious

participants can orally record but can't

visually record or transmit there are a

few exceptions non-participants when the

jury is present has to have their phones

off or silent and cannot use them but

the registered media if they have that

certificate has much broader rights

similar to what we discussed in the next

slide there are certain exceptions with

like the type of interaction that

they're recording but they are permitted

to orally and Visually record subject to

the exceptions we discussed there is

also a limit regarding the location of

the recording

um attorneys uh I'm sorry the judge and

the court administrator typically

consult with representatives of the

media to determine an area under which

you can record

um how ever if there is an issue with

multiple members as the media who all

want to record at once the court may

require them to agree amongst themselves

on an enragement for pooled coverage

go to the next slide please

the judge themselves they'll have it may

make some limitations on recording or

may be interested in doing so and if the

court is considering whether to prohibit

terminate limit

um recording they first have to provide

notice and they have to weigh several

factors including um whether the impact

of recording will have on the rights of

parties to a fair trial uh the nature of

the testimony and the public value the

likelihood of harm to people involved in

the case the characteristics of people

involved in the case and whether the

jury is sequestered or other good cause

next slide please

now even if you haven't actually been

recording in the moment it's possible

that you can acquire reportings after

the fact so each docket entry should

indicate whether the proceeding was

video recorded you know by the court

itself those video recordings if they

were of a public proceeding become

public records and duplicated copies may

be ordered at the end of the trial or at

any time by a party next slide please

and for the Vermont Supreme Court

specifically they have their own rule

that the news media May record their

proceedings unless the Chief Justice

directs otherwise and audio recordings

are available from the past two years of

oral arguments at the website on the

slide

and I'm going to hand it over to Harry

to discuss records specifically

so you've just heard about accessing

particular proceedings now we're going

to talk about how do you access

particular court records our last

presentation you may remember that we

talked generally about where to go and

how to think about different types of

Court records where they might be

located what we're going to do today is

we're going to do a little bit of a

deeper dive into particular types of

records and ways of thinking about if

you're seeking a particular record or

you've been denied a particular record

how to think about whether or not that

denial is correct or whether or not this

is the type of record you might be able

to get access to and as we go about

doing that I really just want to remind

everyone kind of two background rules

the first is that for any question about

court records the ultimate Authority on

this is not the Vermont public records

act but it's the Vermont rules for

access to court records which is a

separate set of rules created by the

Judiciary which govern access to court

records and so if you ever have a

question about how to get particular

types of Court records or whether or not

a denial is proper you shouldn't look to

the public records act despite the

record the public records act played in

plain language you should look to the

Vermont rules for access to court

records the second background rule that

I want to remind everyone of is uh a

great one because of Hillary's wonderful

copy has a presentation just now which

is that the

presumption for access to court records

is that the public access to a court

record

s whether or not there was public access

to that type of Court proceeding so the

rules themselves provide that the public

has access to a proceeding and has

access to a record that proceeding so in

general the rules for accessing records

track the rules for accessing particular

types of proceedings

as you're going about thinking about

whether or not you can get a particular

record or whether or not a record is

properly withheld in general you always

want to engage in a two-step process

the first is to ask under the general

presumptions and rules is what I'm

seeking the kind of record

that the public presumptively under

access to that is is this the kind of

record that anyone can ask for without

giving a reason without showing that

they're they have a particular right of

access

the second question is regardless of

what the answer to that first question

was is there an exemption or an

exception to the general rules that

applies to this specific document and so

we're going to look at General

background rules and then specific rules

as I talked about

the types of records that you presently

have access to crack the types of

proceedings you presumptively have

access to so what kinds of Records what

kinds of cases are presumptively public

and generate presumptively public

records we talked about this a little

bit in our last presentation this is

General civil and criminal proceedings

contested probate matters matters

originating the environmental division

and matters to do with the judicial

Bureau now despite these General

proceedings which generate public

records there are many carve outs and

the place to find the full list of carve

outs is in rule Six B and so if you ever

have a particular question about whether

a particular kind of record is one that

even if it's generated in say a civil

proceeding to which you perceptively

have access whether this is the kind of

document that you maybe don't have

access to even within that presumptively

Public Access proceeding

you want to go to 6B and what 6B tells

you is that there are a number of types

of record that even Within These

presumptively public proceedings are

generally withheld from public access

these include

predictably sensitive types of documents

so DNA analysis search warrants risk

assessments competency evaluations juror

questionnaires and involve particular

matters about juvenile proceedings

um in general these are records which

you might assume have particularly

heightened privacy interests

um and they are records that even if

they're reduced within a proceeding

that's public because they fall within

this because of the type of record they

are they generally fall within uh an

exception to Public Access now you may

say okay the record that I want was

generated in a public proceeding and it

doesn't fall within anything that's

listed in 6B so can I still get the

record or it was it wrong that they

withheld it

to answer that question we have to look

to the more specific rules and there are

as I mentioned very specific rules

um that even if this is the kind of

document to which in you generally have

access to

the particular proceedings or the

particular nature of the document May

mean that this specific example of it is

one that you can't have access to and

the place to look for all of those rules

are in the appendix to rule six

appendix to rule six contains a number

of specific exemptions and

a we would take up the full time if we

were to go through all of them here

here's a number of just kind of examples

of what they look like and as you can

see they are far more specific uh and

tailored than the types of Records which

are carved out in full in rule 6p so as

I mentioned this is contained in

something called the appendix to rule

six in the Vermont rules for public

access to court records and if you're

looking for a particular record it's

always good to check that appendix to

see is there any specific statute

specific rule that applies just to this

type of record

now the good news is that the reverse is

also true

so

even if a record is not the kind of

record to which the public presumptively

have access

you still may be able to get the record

and that's because there are additional

rules which say even if not everyone can

get access to this record that is you

can't go up to the court terminal or you

can't go up to a custodian and say

without giving a reason

without telling you who I am I have

access to this record

there are still particularly situated

individuals or institutions that can get

access to these records and I know that

a lot of folks on the call are

journalists or investigators or

researchers and so the reason I want to

highlight this is because even if a even

if a record is not publicly accessible

that doesn't mean that no one can get it

and there are still legal means of

potentially getting access to that

information where should you look for

this you should look for this in the

appendix to rule five for special access

provisions and again here are a couple

examples

um often there are examples of

particular types of disclosures for

research purposes or individuals who

maybe submitted the information

themselves but if even if a record is

not publicly accessible if

you can contact or uh

speak to someone who falls under one of

these special access provisions and they

are willing to share the record that's

another way that you can potentially get

access to some of this information and

some of this information that might find

its way into the public domain

all right I also want to talk really

quickly just about stealing records so

ceiling records are uh a way that

records be may start out as

presumptively publicly accessible but in

the course of a case may turn out to be

withheld from public view or public

inspection these are governed by rule

nine and the way that it works is a

party can request ceiling or the court

can look at a record or a case document

and say you know on the Court's own

motion I think that this information is

too sensitive to be made public

any

ceiling request has to articulate a very

specific set of Demands that are listed

here this is in rule 983 they have to

identify the particular filing

particular record and the portion that

they want to see they want to withhold

from Public Access like to identify the

particular privacy interests that are

going to be served by withholding This

Record

they to State any Authority that

supports an order for ceiling or

redaction so they have to show that it's

not just they have a particular interest

in this information but there's actually

some Authority for with holding this

type of information from the public and

they have to attach redacted and

unredacted copies of the records to show

the court what redaction might look like

and crucially they have to confirm that

service has been made on all parties or

any other individual or entity uh who's

the subject of the information you can

paint in that and the reason for this is

because we want to know we want to make

sure that as many people as possible

know if a record is going to become

sealed

if a record is going to become sealed

either because of a party's request or

on a Court's own motion any person

including a non-party to the case can

request a hearing on that ceiling any

hearing on the motion has to be open to

the public except that the person can

request that the court conduct some of

the sensitive review of the documents in

camera which just means essentially

behind closed doors if it needs to look

at the information to determine whether

or not this is the type of information

that should be withheld but the moving

party that is either the court or the

person requested ceiling as the burden

by clear and convincing evidence to show

that this information should not be

publicly released the court has to

actually find go ahead and enter a

finding by clear and convincing evidence

that good cause and exceptional

circumstances exist

and if anyone publicly objects to that

stealing the court has to essentially do

another step and that's to say not just

that there's parent convincing evidence

on the record or in writing but say no

reasonable alternative to the ceiling or

redaction exists and the manner of the

redactions or the manner of the ceiling

is the least restrictive means possible

so it's essentially a minimization

principle

um there are lower burdens if both the

parties say you know what court we agree

that this information is sensitive

enough that we want to seal it and

nobody objects but the good news is that

even if if you weren't present for that

uh

stipulated decision there are still

opportunities to go back after the fact

and unseal those records

right so Hillary and I have talked up to

this point about the rules about how

things are supposed to work

what are ways that you can seek relief

if you think that these rules aren't

being followed in some way if you think

that you should have access to a record

that either a custodian or a court has

told you you can't get access to or you

want to attend a proceeding that you

think should be public but for one

reason or another it's closed we're

going to start with how to access the

actual proceedings themselves and I'm

going to briefly turn it back over to

Hillary

thanks Harry go to the next slide

so first talking about how do I

challenge a limit on access to attending

a hearing now as we discussed there is

an extremely high bar for the courts to

actually close the court and prior

restraint or so-called gag orders which

are limits on what can be published

about a proceeding are presumptively

unconstitutional and another high bar to

clear in order to be issued uh but if

the court has been closed or accessed

somehow denied to the public the media

especially does have standing or the

judicial right you know to take action

to challenge a limit to that kind of

access they can by what's called a

motion to intervene or directly

intervene at the trial court level and

the Vermont Supreme Court has held that

once the media intervenes at the trial

court level they then are able if they

get an unsatisfactory decision to appeal

to the Supreme Court of Vermont and

there's also an option to petition for

Extraordinary relief with the Supreme

Court it directly under Vermont rules of

Appellate Procedure 21 which covers

extraordinary relief in more detail and

the Supreme Court of Vermont explicitly

has stated that orders limiting access

should be narrowly tailored to cover

only improper disclosure that would

occur in the absence of the order and in

the past these kinds of media

interventions or asserting rights have

been successful in one case a gag order

was rescinded when media petitioned the

court the trial court had held that a

newspaper couldn't print information

that it already had in its possession

and the court ultimately reversed and

held that these orders have to be

narrowly tailored

um and it was not done so in this case

so there is the possibility even you

know in these worst case scenarios when

these kinds of orders are issued there's

the potential to have that kind of

decision reversed back to Harry

all right what happens if you are

seeking access to a record that you've

been denied and you think you should

have access to it

there are actually two ways to go about

getting access to restricted record and

the route that you're you want to take

depends a little bit on why the record

has been withheld and who withheld it so

the first question you want to ask is

this is this the kind of record that a

judge has previously ruled that for

whatever reason

shouldn't be public and so has there

been a ruling essentially in the course

of the case that means that this record

is is not public

if that's the case you want to file a

motion with the court in that case under

rule 9C

so what rule 9 says is that any person

including a non-party so this is someone

who's like an intervener like the folks

that Hillary just talked about can move

to access a record not publicly

accessible you just file a motion and

the motion has to specify the case you

have to say I I want this record in this

particular proceeding uh and you have to

say

essentially why you think you're

entitled to access and the Court's going

to go ahead and make a ruling on that as

soon as it possibly can there's a

special provision in rule 9 that says

the court has to essentially treat these

requests uh with special speed and has

to turn to them as soon as it can

if the court revisits this and says you

know what I'm going to stand by my

prioritization and we're going to keep

it we're going to keep it sealed uh you

have to request permission from the

court to appeal that to the Supreme

Court of Vermont the reason that you

have to request permission is because

usually the Supreme Court only hears uh

appeals at the end of cases when you

have a ruling that is going on in the

middle of an ongoing case like this

would be you usually need special

permission to take it up on

interlocutory appeal but you do have to

get permission from the trial court to

take that to the Supreme Court

once it's at the Supreme sorry uh if

it's actually sealed at the Supreme

Court level that is the Supreme Court is

the one that has decided that this case

should not be public you file a motion

under the Vermont rule of Appellate

Procedure 27 which basically just says

you file this like a motion like any

party in a case would that would be a

motion for

extended Pages a motion to extend time

um and so you should consult Vermont

rule of Appellate Procedure or the form

and the format of asking the Vermont

Supreme Court to unseal a record that

it's already deemed should not be

accessible to the public

it's important to note that this this

route a motion in a case under 9C is

only appropriate where there's some

discretion that is where the court

essentially has a decision to make about

whether or not a record should be

withheld in a case in which you have

either statute or a clear rule that says

all of these records regardless of the

Privacy interests regardless of the

proceeding are just categorically exempt

this isn't the right proceeding uh in

that case you essentially want to fight

with a custodian about whether or not

this is the kind of record that falls

within one of those rules that's what

I'm going to talk about next

so in a case in which you have sought

records not in the course of an ongoing

proceeding essentially from the court

feeling it but you've gone to a clerk's

office you've gone to a public access

terminal and you've requested particular

records and they've been denied this is

a separate procedure and this is an

appeal under rule 6h and because this

isn't in the context of an ongoing case

in which a judge is making a decision

about the records it looks a lot more

like a public records request uh and so

if the records custodian denies you the

record either in whole or Dax part of it

they essentially have to follow the same

time limits as the public records act

which is typically three business days

for a response or if there are

extraordinary circumstances they can

invoke an extension up to 10 days

if you're denied

a part of that record

you have

seven days to appeal that to the

presiding judge of the court in which

the case was filed we talked about this

a little bit during our last

presentation that's a really important

uh distinction because often you can

access public records from multiple

court houses or even online but if you

want to appeal the denial of a record

you have to go to the presiding judge of

the court in which the case was filed so

it's really important to note sort of

where the record originated uh if the

custodian the clerk's office for example

denies part of your request they're

required to tell you about the procedure

for appealing essentially how to do it

in your time limits

um if you take that to

the presiding judge of the court in

which the case is filed and you're still

dissatisfied with that judge's decision

about the record then you have 30 days

to appeal it to the Supreme Court of

Vermont we talked about this a little

bit last week or not last week but in

the last session I'm just reiterating it

here because it's exactly the same Harry

and Hillary thank you so much for giving

us this great overview

of the courts in Vermont and um and

thanks everybody for tuning in as well

thanks very much happy to be here