Vt. Pub. Access Ct. R. 5 app to Rule 5
Citation | Description |
3 V.S.A.§ 164(g)(3)(C) | A special index of criminal cases expunged after completion of diversion is not publicly accessible except by petition of the person who is the subject of the case or permission of the Chief Superior Judge for research purposes pursuant to the Rules for Public Access to Court Records. |
13 V.S.A. § 1460(a) | Records in cases seeking an injunction against a juvenile to stop hate-motivated conduct are made nonpublic by incorporation of 33 V.S.A. § 5117, including its specific access provisions. |
13V.S.A. § 4824 | A finding that a person is mentally ill and dangerous to himself or others is not publicly accessible under 18 V.S.A. § 7103 but must be provided to the National Instant Criminal Background Check System, established by Section 103 of the Brady Handgun Violence Prevention Act of 1993. |
13 V.S.A. § 7606(d)(3) | A special index of criminal cases expunged by court order pursuant to Chapter 230 of Title 13 is not publicly accessible except by petition of the person who is the subject of the case or permission of the Chief Superior Judge for research purposes pursuant to the Rules for Public Access to Court Records. |
14V.S.A. § 2 | A will filed with the probate division for safekeeping is not publicly accessible during the life of the testator but may be accessed by others in accordance with instructions of the testator and by the testator's duly authorized legal guardian or attorney-in-fact in the presence of the judge or register. |
14 V.S.A.§ 3067(e) | Professional evaluation of the need for a guardian is confidential except court may determine that "any other individual, including the proposed guardian" has a "strong interest in the welfare of the respondent" and allow access to that person. |
15AV.S.A. § 6-102 | Title 15A provides for adoption proceedings, relinquishment proceedings, proceedings to terminate parental rights in certain circumstances and proceedings to gain certain information relating to an adoption. For all these proceedings, the in-court events are closed to the public and the records are nonpublic. However, some statutory provisions allow designated nonparties, and parties in some circumstances, to have access to records that may be possessed by the court in specified circumstances. |
18V.S.A. § 7103 | Proceedings under Part 8 of Title 18-generally mental-health and developmental-disabilities related proceedings-are closed to the public and the records of the proceedings are nonpublic. The statute provides that certain persons have a specific right of access generally or to specific records or information. |
18 V.S.A.§§ 9306(c), 9309(b) | Records in proceedings to appoint a guardian for a person who is developmentally disabled are not publicly accessible except where the respondent or the representative of the respondent consents to access by a person. |
28 V.S.A. §§ 204, 204a; V.R. Cr. P. 32(c) | Generally, presentence investigation reports, including any supervised-community-sentence plan, 28 V.S.A. § 352(c), are nonpublic, 28 V.S.A. § 204(d)(1). The court may allow inspection of the presentence investigation report or parole summary or parts thereof by other persons having a proper interest, whenever the best interest or welfare of the defendant or inmate makes that action desirable or helpful, 28 V.S.A. § 204(d)(2)(B), or by a state or federal prosecutor conducting a criminal investigation if the court finds that the records may be relevant to the investigation. Id. § 204(f) |
33V.S.A. §§ 5117, 5118 and 5119 | Records in juvenile proceedings are generally nonpublic, subject to an extensive list of persons who have a specific right of access to some of or all the information under circumstances described in the statutory sections. |
Rules Governing Establishment and Operation of the Professional | Records related to complaints to the lawyer professional responsibility program are not publicly accessible before the filing of a formal disciplinary proceeding. The Professional Responsibility Board may provide access to (a) A lawyer or |
Responsibility Program, Administrative Order No. 9, Rule 12(F) | judicial admission or disciplinary agency of this or another jurisdiction or (b) Any agency or person to which the attorney has submitted a waiver of confidentiality. |
Rules for the Disciplinary Control of Judges, Rule 6(7), (9) | Records of the Judicial Conduct Board are nonpublic unless a formal disciplinary complaint is filed against a judge. If a disciplinary matter has proceeded beyond the stage of an initial inquiry, the chair may provide information about the proceedings to officers involved in impeachment, retention or judicial appointment proceedings. |
Vt. Pub. Access Ct. R. 5 app to Rule 5
Reporter's Notes
This rule covers what specific rights of access to court records exist for persons beyond the general public and to provide the nature of such rights. The content of this rule was formerly covered in Rule 2(b). The former provision did not attempt to define what specific rights of access existed but required that such access rights be honored. It did provide, however, that when a person claimed a specific right of access not based on a statute or court rule, the decision whether to accept and implement that right involved a balancing of the "special interest of the person or officer or member seeking the record against the interests protected by the restriction on public access." The Reporter's Notes added that the balancing should be "guided by this rule and other relevant authority."
Rule 5 attempts to define what specific access rights currently exist and, where appropriate, explain the nature of such rights. The adoption of electronic case records and electronic filing has made it necessary to provide more specificity of the existing rights and their nature so that they can be implemented in an electronic system. To the extent possible, the electronic system should be capable of allowing specific rights of access as soon as a record is filed.
Rule 5(a) recognizes the specific right of access to court records of judicial officers and court staff Normally, court staff with responsibilities related to case filings and processing have access to all judicial case records. The Court Administrator may, however, choose to more narrowly provide access related to the specific job responsibilities of a staff person.
Rule 5(b) provides that a party has a specific right of access to records in the party's case. Parties who are younger than 18 do not have a specific right of access unless the court orders-for example, where a minor is self-represented and conducting the litigation. The court may restrict the specific right of access for other parties-for example, where the court finds it necessary to restrict access to certain information such as the address of a particular witness.
In most cases, a person is a party for the entire case and thus has a specific right of access to records filed at any time and for any purpose in that case. In some instances, a person is a party for only part of the case. For example, in a juvenile delinquency case a parent-custodian of the juvenile is a party with respect to temporary care of the juvenile and disposition if the juvenile is found to have been delinquent but not for the adjudication of whether the juvenile was delinquent. The parent-custodian does not have a specific right of access to records related to whether the juvenile was delinquent or the adjudication of delinquency.
The specific right of access can be restricted or eliminated by operation of statute.
Rule 5(c) provides a specific right of access to lawyers appearing and representing a party. If the represented person is a party only with respect to part of the proceeding, the lawyer's specific right of access is limited to that part just as the party's specific right of access is limited in subdivision (b). The lawyer's specific right of access includes a right of remote access to enable the lawyer to provide representation efficiently. The specific right of access extends to other lawyers and staff of a law firm or legal organization in which the appearing lawyer works. The specific right of access is essential for the lawyer to provide representation to the client. The lawyer may have certain obligations with respect to disclosure imposed by Rules 1.6 and 3.6 of the Vermont Rules of Professional Conduct. This rule is not intended to either prohibit, or to require, disclosure other than as indicated by the Rules of Professional Conduct or other provisions of law governing privilege and confidentiality.
Rule 5(d) provides a specific right of access to a guardian ad litem (GAL) to records in a case in which the GAL has been appointed. The GAL has the same specific access right as a lawyer for a litigant. This rule enables the GAL to comply with V.R.F.P. 6(e)(2) which provides "The guardian ad litem shall be familiar with all pertinent pleadings, reports, and other documents." See also V.R.F.P. 6.1(e)(2), 7(e)(1).
Rule 5(e) recognizes an exception to the prohibition on remote access to criminal case records set out in Rule 4. See Reporter's Notes to Rule 4. The exception is provided in 12 V.S.A. § 12(a). The statute allows the Supreme Court to grant remote access to criminal case records to "criminal justice agencies," as defined in 20 V.S.A. § 2056a, for "criminal justice purposes," again as defined in 20 V.S.A. § 2056a. The statute defines criminal justice agencies as "all Vermont courts and other governmental agencies or subunits thereof that allocate at least 50 percent of the agency's annual appropriation to criminal justice purposes," id. § 2056a(a)(2), and criminal justice purposes such as investigation, apprehension, detention, adjudication, or correction of persons suspected, charged or convicted of criminal offenses. Criminal justice purposes include criminal-identification activities, the collection, storage and dissemination of criminal history records, and screening for criminal justice employment. |d. § 2056a(a)(3). Note that Rule 5(e) deals only with remote access and does not provide specific access to records that are not accessible by the public.
Rule 5(f) also recognizes an exception to the prohibition on remote access to criminal and family case records set out in Rule 4. The exception is for public-purpose agencies with which the Court Administrator has entered into a data dissemination contract pursuant to Rule 12. As with Rule 12(e), this exception is to the restrictions on remote access and does not provide access to records not otherwise publicly accessible. See Rule 12(d).
Rule 5(g) provides the final exception to the prohibition on remote access in Rule 4, for those with specific access to criminal or family court records. This exception is consistent with the underlying statute, 12 V.S.A. § 5(a), which restricts only "public access via the internet" and does not restrict remote access by a person who has a specific right of access. This rule does not require the Court Administrator to provide remote access to all or any persons with a specific right of access, except to lawyers as provided in Rule 5(b). Especially for those with a specific right of access created by statute, automating the implementation of that right may prove to be difficult or impossible in the case-management system.
Rule 5(h) recognizes the final category of persons with a specific right of access-those with a specific right provided by statute, court rule or other source of law. The rule provides for the creation of an appendix that identifies each statute or court rule, and provides a summary of its content, existing as of the date of the rule's promulgation. Annually before January 1 of each successive year, the Court Administrator is required to update this list.
As discussed, former Rule 2(b) suggested that there may be instances where other sources of law, including the Vermont and United States Constitution, create specific rights of access to judicial case records. In the years since the adoption of the original Vermont Rules for Public Access to Court Records, no such specific right of access has been recognized by the United States or Vermont Supreme Court and, therefore, none is explicitly recognized in this rule.