Vt. Pub. Access Ct. R. 6
Vt. Pub. Access Ct. R. 6
Reporter's Notes-2020 Amendment
Rule 6(b)(5) is amended to provide clarification of the existing rule in the context of the enactment of amendments to the statutes governing expungement and sealing of criminal-history record information in cases where a judicial officer has found no probable cause for some, but not all, of the charges brought in a single information by the prosecuting attorney. Per 2019, No. 32, 13 V.S.A. § 7603(a)(1)(A) now provides that unless either party objects in the interests of justice, the court shall issue an order sealing the criminal history record related to the citation or arrest of a person within 60 days after the final disposition of the case if the court does not make a determination of probable cause at the time of arraignment. This amendment is consistent with Vermont Rule for Public Access to Court Records 6(b)(5) and its long-standing predecessor Rule 6(b)(24). However, 13 V.S.A. § 7606(c)(1) and (2) now provide that the court shall remove an expunged offense from any accessible database that it maintains, but that until all charges on a docket are expunged, the case file shall remain publicly accessible.
The present amendment clarifies that until all charges on a docket are expunged, the case file shall remain publicly accessible. Note that as to sealing and expungement and the timing thereof, pursuant to 13 V.S.A. § 7603(a)(2) and (g), the parties may now stipulate to sealing or expungement of a criminal-history record that is otherwise subject to the provisions of Rule 6(b)(5) at any time.
Reporter's Notes-2021 Amendment
Rule 6(b)(19) is promulgated to provide clarification as to the confidentiality of the content of responses by potential jurors to questionnaires completed in determining qualification for service, and the means by which access to this confidential information may be secured. The addition of this exception to the rules for public access accompanies the contemporaneous amendment of a number of other procedural rules, including Rules 4 and 10 of the Rules Governing Qualifications, List, Selection and Summoning of All Jurors (which provide for questionnaires to potential jurors in determination of qualification and eligibility for service and circumstances of access to content), as well as V.R.C.P. 47(a) and V.R.Cr.P. 24(a), which primarily govern access to juror questionnaire information by parties and their attorneys for purposes of jury selection.
The present amendments also seek to remedy inconsistencies among the existing rules as to the specific juror questionnaire content that is publicly accessible, and that which is not. In consequence of these 2021 amendments, most content of potential juror responses to questionnaires related to service remains accessible to attorneys and parties in the case for which the person may be chosen to serve as a juror. However, such information is not publicly accessible, absent a judicial determination of good cause for the disclosure. Examples of such good cause are provided in cases in which a party seeks to assert a challenge to the summoning and composition of an entire venire, based upon constitutional fair trial grounds, including impermissible race- or gender-based discrimination, see Batson v. Kentucky, 476 U.S. 79 (1986); J.E.B. v. Alabama, 511 U.S. 127 (1994); and State v. Donaghy, 171 Vt. 435, 769 A.2d 10 (2000), or in the conduct of scholarly research or news accounts as to contemporary juror composition and selection procedures. In such cases, the court, upon a finding of good cause, may authorize disclosure of the content of questionnaire responses, with redaction, or accompanied by protective orders as appropriate to prevent correlation of questionnaire content with identified individuals. As to public access, the amendment also contemplates that in the assessment of good cause, the holdings of the so-called "Press-Enterprise" cases will be applied. See Press-Enterprise Co. v. Super. Ct. of Cal., Riverside Cty., 464 U.S. 501 (1984), and 478 U.S. 1 (1986) (explaining balancing test applied when First Amendment rights of public access are asserted with respect to court records and proceedings); see also Commonwealth v. Fujita, 23 N.E. 3d 882 (Mass. 2015) (holding that categorical impounding of trial jurors' names by judge was error; only on judicial finding of good cause, which may include risk of harm to jurors or to integrity of their service, may such list be withheld).
The amendments also clarify that as to public access, there is no bar to disclosure of information contained in a questionnaire during the jury selection process itself, in interrogation of potential jurors, and in the exercise of challenges by attorneys and self-represented parties. In such proceedings, the questions to potential jurors referencing questionnaire content in open court (or in individual and segregated circumstances) for purposes of jury selection, the responses given by potential jurors, and the record of the jury selection proceeding, are presumptively accessible by the public, whether observed in open court or later by transcript, but the document (the completed questionnaire itself) does not become public.
Reporter's Notes-2022 Amendment
New exceptions (20), (21), and (22) to the presumptively public nature of all court records, see V.R.P.A.C.R. 3(a), are added to ensure that a party's expectations regarding confidential or sensitive information will not be automatically and prematurely disclosed when the party is seeking certain types of court action or adjudication.
The new exception in Rule 6(b)(20) recognizes that the very nature and premise of ex parte filings is that the moving party is seeking unilateral court action-for example an ex parte request for a writ of attachment-because advance notice to the other party, either directly or through public disclosure, could allow that other party to frustrate the court's ability to effectively grant such relief, if otherwise warranted.
Exception (20) allows the court to issue a timely decision and order that does not compromise the parties' expectations in these limited circumstances, and allows the court to have the final word on whether any such matters remain shielded from public access. With respect to ex parte motions such as attachment or trustee process, the expectation is that the entire application, and the court's decision and order, will become public immediately upon issuance, since at that point service on the opposing party is required. Cf. V.R.C.P. 4.1, 4.2. Any continued exception to public access would have to be clearly delineated by the court in its order, consistent with the over-arching Press Enterprise/In re Search Warrants standard under these rules set out in V.R.P.A.C.R. 9 and its Reporter's Notes.
New V.R.P.A.C.R. 6(b)(21) is most likely to arise in discovery practice in all types of cases, but there may be other situations where in camera review is sought. Regarding discovery-related motions, a party may be willing to comply with all (or some) of another party's discovery request involving documents or information the disclosing party deems privileged, confidential, or otherwise sensitive, but only after (a) the court decides such matters must be disclosed, and/or (b) the court issues a protective order limiting disclosure and use of the documents or information.
Exception (21) allows the court to issue a timely decision and order that does not compromise the parties' expectations in these limited circumstances, and allows the court to have the final word on whether any such matters remain shielded from public access. The court's decision and order might deny the request entirely, agree with it entirely, or grant it in part and deny it in part. If denied wholly or in part, the subject documents (and their content) become public as to any or all parts deemed nonconfidential by the court. However, the court could in its order allow for some lapse of time before the matters become public to allow an opportunity to apply for a collateral final order appeal, and it could order that a redacted version of any filings be submitted (after excising any items the court decided should remain publicly inaccessible), to facilitate public scrutiny of the court's action on the request. If entirely granted, the subject materials would remain sealed. However, the underlying documents and information-again, mostly arising in the context of discovery motion practice-may ultimately never become court records at all (and thus not subject to public access) unless actually filed or used in connection with some other court proceeding. See V.R.C.P. 5(d); V.R.P.A.C.R. 6(c); Herald Assoc. v. Judicial Conduct Bd., 149 Vt. 233 (1988). In all events, the court's decision and order must itself explain the court's rationale for any continued sealing of court records, and it will be public to the greatest extent required by the Press Enterprise/In re Search Warrants standard under these rules set out in Rule 9 and its Reporter's Notes.
New V.R.P.A.C.R. 6(b)(22) makes trade secrets and confidential business information a categorical exception so that, at least initially and when uncontested, the court may approve a stipulated protective order (pursuant to V.R.C.P. 26(c)) as to such matters if agreed to by the parties, without the hearing and order with specific findings otherwise required by V.R.P.A.C.R. 9(a). Also, a party may initially make a filing unilaterally designating such items as confidential, subject to a motion pursuant to V.R.P.A.C.R. 9(c), made by any other party or any member of the public, to unseal the record.
However, if any part of the trade secret/confidential business information issue is contested-e.g., whether a particular item qualifies as a trade secret or confidential business information, whether the party is entitled to protective-order relief under the circumstances, or the scope of the protective order requested-then the contested motion and hearing procedures required by V.R.P.A.C.R. 9(a) must be followed, including a court decision and order with specific findings as to any documents or information that the court determines should not be publicly accessible. See V.R.P.A.C.R. 9(a) and Reporter's Notes. But, as noted elsewhere, the underlying documents or information may never become court records at all (and thus not subject to public access) unless actually filed or used in connection with some other court proceeding. See V.R.C.P. 5(d); Herald Assoc. v. Judicial Conduct Bd., 149 Vt. 233, 544 A.2d 596 (1988).
Exception (22) does not itself define trade secret or other confidential business information entitled to protection, leaving that to existing and future development by case law (in Vermont and by other jurisdictions), or as more specifically delineated by statute. Consistency with the definition set out in the Public Records Act, at 1 V.S.A. § 7(c)(9), although not binding on the Judiciary and also arguably ambiguous and/or incomplete, is-unless the particular circumstances indicate otherwise-a stated goal of this exception. 9 V.S.A. § 4605 does require courts to protect such information, without definitively resolving the foundational question of what qualifies for protection.
Reporter's Notes-2023 Amendment
New Rule 6(b)(9)(A) clarifies the existing provision that exempts the complaint and affidavit from public access until defendant has an opportunity for a hearing. The revised rule continues to provide that temporary orders granting relief are publicly accessible. The amended rule clarifies the public access status of the complaint, affidavit, and resulting order when relief is denied. Where temporary relief is denied and plaintiff does not pursue the case, the complaint, affidavit, and order denying relief are not publicly accessible. Where temporary relief is denied and plaintiff does pursue the case, the order denying relief is not publicly accessible until the defendant has the opportunity for a hearing pursuant to statute.
New Rule 6(b)(9)(B) and (C) implement the restrictions of public access created by V.R.F.P. 9(b) and (g)(1) and V.R.C.P. 80.10(b). The purpose of the family proceeding rules is to protect location and access information of the abuse-prevention proceeding plaintiff, and in a limited circumstance the defendant, from being accessible to the other party, the other party's lawyer, or the public. A plaintiff in an abuse-prevention proceeding typically provides contact information to the court on a standard form, which requires the plaintiff to indicate whether the plaintiff consents to release of the contact information on the form. If the plaintiff does not consent to release of the information, both the form itself and the information provided on the form are not accessible by the other party, the other party's lawyer, or the public. Because V.R.F.P. 9(b) states that information provided for notification purposes shall not be disclosed without written consent, such information is not publicly accessible even if the plaintiff does not use the standard form. For the same reason, when a party who has previously denied consent to release that party's contact information under V.R.F.P. 9(b) or (g) provides updated contact information to the court, that updated information will not be publicly accessible unless the party provides written consent to release it. Furthermore, contact information such as an email address that would otherwise be publicly accessible is not publicly accessible if it was provided under V.F.R.P. 9(b) or (g). Similarly, V.R.C.P. 80.10(b) provides the same protections for plaintiff's contact information.
The exception to public, party, and lawyer access created by this rule and V.R.F.P. 9(b) and (g) is separate from the restriction contained in 15 V.S.A. § 788, which applies only to information "provided under this section."15 V.S.A. § 788(c). The contact information collected by V.R.F.P. 9(b) and (g) was not collected pursuant to § 788. The restriction created by § 788 is recognized in the Appendix to Rule 6.
Reporter's Notes- 2024 Amendment
The amendments discussed herein are the result of a comprehensive review of the exceptions to public access contained in Rule 6. Certain exceptions were deleted because they did not reflect actual practice. Other exceptions have been combined by type. A general purpose of the amendments is to assist filers in determining whether a particular record must be redacted or filed separately pursuant to V.R.P.A.C.R. 7.
Rule 6(a) is amended to clarify that the rule applies to judicial-branch case records, as that term is defined in Rule 2.
The introductory language in Rule 6(b) is amended to identify the three main categories of exceptions to public access to court records: case types that are not publicly accessible by statute, specified records that are exempted from public access by statute or other law, and information within a case record that is exempted from public access by statute or other law. Individual exceptions have been amended where necessary to clarify whether an exception is based on case type, or is targeted at certain types of records or information within records.
Rule 6(b)(1) is amended to reflect that in some cases, it is information within a record, as opposed to the entire record, that is designated as confidential or otherwise exempt from public access. The provision is also amended to clarify that a record may be exempted by court order or through the process of sealing or expungement.
Rule 6(b)(2) is amended to clarify that records of the issuance of a search warrant include "related materials, such as the application, supporting affidavit and inventory." In re Essex Search Warrants, 2012 VT 92, ¶ 16, 192 Vt. 559, 60 A.3d 707. The exception is also amended to clarify that motions to seal search warrants and related material are governed by the procedures and standards set forth in In re Sealed Documents , 172 Vt. 152, 772 A.2d 518 (2001), and related cases. Such motions are not subject to the procedure set forth in V.R.P.A.C.R. 9.
Former subdivision (b)(3) is deleted because it appears that the Department of Corrections does not provide furlough reports to the court. The remaining exceptions are renumbered to reflect this deletion and the other deletions discussed below.
Former paragraphs (b)(4), (10), and (13) all contained exceptions for individual medical or mental-health records or information. To simplify the rule, these health-related exceptions are combined into new paragraph (b)(3). New paragraph (b)(3) contains the provisions formerly listed in (b)(4), (10), and (13). The phrase "analysis of the DNA of a person" is amended to "reports of genetic testing," consistent with the wording of the parentage statute. See 15C V.S.A. § 614 (stating that "[a] report of genetic testing for parentage is exempt from public inspection and copying under the Public Records Act"). In place of the court-created exception in former (b)(13), which addressed confidentiality of health and mental-health records, new paragraph (b)(3) incorporates the definition of "individually identifiable health information" from the federal Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320(d)(6), to make the exception consistent with existing laws protecting patient privacy that are broadly applicable and well known to practitioners. The provision clarifies that if the record contains relevant information other than the individually identifiable health information, the filer should redact the individually identifiable health information. As previously, the exception to public access contained in this provision no longer applies if the record is formally admitted into evidence. See V.R.P.A.C.R. 6(c).
Former paragraphs (b)(7), (8), and (11) all contained exceptions for certain financial information concerning an individual or corporation that may be submitted to the court. To simplify the rule, these exceptions are combined into new paragraph (b)(6), which contains all the provisions formerly listed in (7), (8), and (11). The removal of the words "[r]ecords containing" from the provision related to financial information submitted in support of applications to waive filing fees is not intended to alter existing law. Consistent with current practice, both the application and the affidavit remain publicly accessible.
Because the substance of former paragraphs (8), (10), (11), and (13) are incorporated into new paragraphs (b)(3) and (6), these paragraphs are deleted.
Former (b)(12), which made records of juvenile proceedings that are filed with the court or admitted into evidence in a divorce or parentage proceeding exempt from public access, is deleted as unnecessary because the Legislature has made such records not publicly accessible by statute. See 33 V.S.A.
§ 5117(c)(3) ("The public shall not have access to records from a juvenile proceeding that are filed with the court or admitted into evidence in the divorce or parentage proceeding or in the probate proceeding.").
Former (b)(14) is renumbered as (b)(8). The term "data elements" is replaced with "information" to make the language consistent with other provisions of the rule.
Former (b)(15) is renumbered as (b)(9). The words "Any records representing" are removed to simplify the wording of the exception. The phrase "without limitation" is added to the definition of judicial work product to clarify that the listed examples are not exclusive.
Former (b)(16) is renumbered as (b)(10). The provision is amended to clarify that the use of a portion of a discovery record at trial does not make the entire record or records publicly accessible. Only the record or portion of a discovery record that is actually used at trial becomes accessible to the public. For example, the use of one interrogatory answer at trial does not make all interrogatory answers publicly accessible.
Former (b)(17) is renumbered as (b)(11). The phrase "audio or videotape" is amended to "audio or video recording" to reflect updates in courtroom technology. The phrase "data element" is replaced with "information" for consistency with wording throughout the rules.
Former (b)(18) is renumbered as (b)(12). The term "introduced" is amended to "offered or admitted" for clarity and to be consistent with the wording of new paragraph (b)(17).
Former paragraphs (b)(19) to (b)(21) are renumbered as (b)(13) to (15).
Former (b)(22) is renumbered as (b)(16). The phrase "Records containing" is deleted because the purpose of the exception is to target specific information. A record may contain both trade secrets and information that is otherwise publicly accessible. If a record contains otherwise publicly accessible information, the trade-secret information must be redacted if practicable.
New Rule (b)(17), exempting proposed prefiled exhibits from public access, is added. With the advent of the Judiciary's electronic-case-records-management system and the increased use of remote hearings, many courts now require parties to electronically file proposed exhibits before the trial or evidentiary hearing at which the exhibits may be used. New Rule 6(b)(17) is added to clarify that prefiled exhibits are not publicly accessible until they are offered into evidence at the trial or evidentiary hearing. The rule does not change the status of records that are otherwise publicly accessible and does not apply to records attached in support of motions. For example, a record filed in support of a motion for summary judgment is ordinarily publicly accessible and remains so even if the same exhibit is later prefiled in anticipation of trial. Once a prefiled exhibit is offered or admitted into evidence, it is publicly accessible, unless some or all of it is separately made confidential by another provision in this rule or another source of law. If a prefiled exhibit contains information that must be redacted under this rule or another source of law, it is the filer's responsibility to redact the information prior to filing the exhibit.
Rule 6(c) is amended to reflect that the exceptions contained in former
paragraphs (b)(10) and (13) are now found within Rule 6(b)(3), and the exception contained in former (b)(8) is now found within (b)(6). The effect and scope of this provision are unchanged.
Former Location | Subject Matter | New Location |
(1) | Records designated confidential by law | (1) |
(2) | Search warrant records | (2) |
(3) | Department of Corrections furlough reports | Deleted |
(4) | Competency and sanity evaluations | Renumbered as (3) |
(5) | Information and supporting affidavits filed to initiate criminal proceeding | Renumbered as (4) |
(6) | Risk assessment/needs screening information obtained under 13 V.S.A. § 7554c | Renumbered as (5) |
(7) | Financial information in application to waive filing fees and costs | Renumbered as (6) |
(8) | Federal, state, or local income tax returns | Deleted and incorporated into new (6) |
(9) | Complaint and affidavit seeking order of protection | Renumbered as (7) |
(10) | DNA analysis in family division proceedings | Deleted and incorporated into new (3) |
(11) | Affidavits of income and assets as provided in 15 V.S.A. § 662 and V.R.F.P. 4.0-4.2 | Deleted and incorporated into new (6) |
(12) | Juvenile proceeding records filed or admitted in divorce or parentage proceeding | Deleted |
(13) | Health or mental health records | Deleted and incorporated into new (3) |
(14) | Personally identifying information | Renumbered as (8) |
(15) | Judicial work product | Renumbered as (9) |
(16) | Records produced in discovery | Renumbered as (10) |
(17) | Transcripts and other records of confidential proceedings | Renumbered as (11) |
(18) | Evidence introduced in confidential proceedings | Renumbered as (12) |
(19) | Information in juror questionnaires | Renumbered as (13) |
(20) | Motions for ex parte relief | Renumbered as (14) |
(21) | Records subject to in camera review | Renumbered as (15) |
(22) | Trade secrets | Renumbered as (16) |
Note: New (17), governing prefiled exhibits, is added as part of these amendments.