PROPOSED
STATE OF VERMONT
VERMONT SUPREME COURT
_____________ TERM, 2004
Order Promulgating Amendments to the
Vermont Rules for Public Access to Court Records
Pursuant to the Vermont Constitution, Chapter II, Section 37,
and 12 V.S.A. ' 1, it is hereby
ordered that Rule 5 of the Vermont Rules for Public Access to Court Records be
amended to read as follows (new matter underlined; deleted matter overstruck):
RULE 5. ADMINISTRATIVE RECORDS
(a) Policy. The public shall have access to
all administrative records in accordance with this rule, except as provided
in subsection (b) of this section. The procedures, policies and
exemptions in 1 V.S.A. '
' 316, and 317(c),
and 318 shall apply to requests for inspection or to obtain copies of
administrative records. The Court Administrator is designated as the
A head of the agency@
for purposes of appeal from decisions of the administrative records custodian.
The Court Administrator shall inform all administrative records custodians of
the fee schedule authorized by 1 V.S.A. '
316(d).
(b) Exceptions. The public shall not have access
to the following judicial branch administrative records:
(1) records which are confidential, privileged or
otherwise prohibited by law from disclosure;
(2) records created in the detection or investigation of
a crime;
(3) personal and identifying information in judicial
branch personnel records including, but not limited to, information relating
to hiring, evaluation, promotion, pay grade evaluation, discipline,
separation or medical records of an employee or prospective employee or an
unpaid volunteer of the judicial branch; provided, however, that all such
information shall be made available to the protected person or a designated
representative;
(4) test questions, scoring keys, answers and other
examination instruments or data used to administer a bar or employment
examination; provided, however, that past test questions and model answers
may be provided, pursuant to a written policy adopted under authority of the
judicial branch, to assist potential test-takers to become familiar with the
format of an examination;
(5) trade secrets, including, but not limited to, any
formulae, plan, pattern, process, tool, mechanism, compound, procedure,
production data, or compilation of information which is not patented, which
is known only to certain individuals within a commercial concern, and which
gives its user or owner an opportunity to obtain business advantage over
competitors who do not know or use it;
(6) lists of names compiled or obtained by the judicial
branch when disclosure would violate a person=
s right to privacy or produce public or private gain; provided, however,
that this subsection does not apply to lists which are by law made available
to the public, or to lists of professional or occupational licensees;
(7) records concerning formulation of policy where
such would constitute a clearly unwarranted invasion of personal privacy if
disclosed;
(8) records which are relevant to litigation to which
the judicial branch or an agency or employee thereof is a party of record,
provided any such records or parts thereof shall be available to the public
after being ruled discoverable by the court before which the litigation is
pending, but in any event upon the final termination of the litigation;
(9) records relating specifically to negotiation of
contracts including, but not limited to, collective bargaining agreements
with public employees;
(10) records in the custody of the Secretary of State
of a participant in the address confidentiality program described in chapter
21, subchapter 3 of Title 15, except as provided in that subchapter;
(11) passwords, access codes, user identifications,
security procedures and similar security information, and judicial branch
internet sites protected by a separate password ;
(12) materials prepared for the internal
deliberations of any judicial board or committee acting in a judicial or
quasi-judicial capacity and their records of the internal deliberations, but
not their decisions;
(13) materials prepared for and minutes of the
administrative meetings of the Supreme Court and its committees, except for
the standing rules committees, and of judicial officers and trial court
clerks: however, records reflecting decisions of these bodies shall be
subject to access unless excluded by an exception to these rules;
(14) legal research and other work product prepared
by judges and their clerks which does not relate to a particular case, and
communications between judicial branch personnel with regard to internal
operations of the court, such as scheduling of cases, and substantive or
procedural issues;
(15) social security numbers and bar examination
scores of bar applicants and attorneys;
(16) home street addresses, e-mail addresses and
telephone numbers of judges as defined in A.O. 10, Terminology [11], court
personnel and attorneys.
(17) individual judge and court personnel direct work
access e-mail addresses and telephone numbers;
(18) office e-mail addresses of attorneys not
employed by the judicial branch until such time as e-mail is approved by the
court as an a means for parties to provide official notice pursuant to court
rules.
Reporter= s Notes
B 2004 Amendment
The original Committee charged with recommending
proposed Rules for Public Access to Court Records submitted its
recommendations to the Vermont Supreme Court in January, 2000. Reporter=
s Notes to Rule 1. That Committee recommended the predecessor language
of this Rule as a temporary solution to govern access to administrative
records. The original rule simply adopted the
A procedures, policies and
exemptions@ of Vermont=
s Access to Public Access Act, 1 V. S. A.
'
' 316-318. The successor
Committee was charged by the Supreme Court with reviewing the operation
of the Rules and recommending appropriate amendments to the Court. A.O.
40, ' 3. A subcommittee began
its review in June 2001 and submitted a draft to the Committee. The
Committee met seven times during 2002 and 2003 and before submitting its
recommendations to the Court.
(a). The '
follows the presumption of access in the Act and predecessor Rule. The
procedures for seeking access in 1 V.S.A.
'
' 316 and 318 are maintained.
As the remainder of the Note explains, the thrust of the 2003 amendments
are the exceptions to the general rule of access.
(b). Exceptions (1)-(12) are adapted from 1 V.S.A.
' 317(c) which sets forth the
exceptions to access to public records. These rules utilize Vermont=
s Access to Public Records Act as the point of departure for the
exceptions. Some of the many exceptions set forth in the Act apply to
particular public agencies or are otherwise inapplicable to
administrative records of the judicial branch. These statutory
exceptions are not included in this section. Other statutory exceptions
have been modified where necessary to focus more specifically on records
maintained by the judicial branch. The exceptions are not a departure
from the prior rationale and policy of the Public Records Act or the
decisions of the Vermont Supreme Court interpreting the Act. See Rule 4
and Reporter= s Notes thereto.
Exception (13) has been adopted to meet particular
concerns of the judicial branch not addressed in the Public Records Act.
As the notes explaining these sections, infra, indicate, these
exceptions often follow suggestions of the Justice Management Institute,
National Center for State Courts, Public Access to Court Records:
Guidelines For Policy Development by State Courts (2002) (manuscript
available at www.courtaccess.org/modelpolicy/, hereafter Guidelines),
and rules governing access to administrative records adopted by other
state courts. While the Guidelines suggest resort to public access
statutes as a point of departure, the Guidelines and other courts have
recognized the need to adopt additional exceptions where public access
would significantly hinder the work of the judicial branch. See, for
example, Id. at pp. 29-35
(b)(1). The exception is adapted from
' 317(c)(1)-(4) of the Act.
The exception includes Vermont Supreme Court rules and orders. A claim
of confidentiality under this exception must be based upon an
independent legal basis.
(b)(2). The exception is adapted from
' (c)(5).
(b)(3). This exception is adapted from
' (c)(7). The exception
includes volunteers such as interns and guardian ad litems even if such
persons are not paid for their services. The exception includes
investigations to determine whether disciplinary action is appropriate.
(b)(4). This exception is adapted from
' (c)(8) and refers to the
rights of access by the public, not that of individual test takers.
(b)(5). This exception tracks the language of
' (c)(9).
(b)(6). This exception closely tracks the language of
' (c)(10).
(b)(7). This exception tracks the language of
' (c)(12).
(b)(8). This exception closely tracks the language of
' (c)(14).
(b)(9). This exception tracks the language of
' (c)(15).
(b)(10). This exception tracks the language of
' (c)(29).
(b)(11). This exception is based upon
' (c)(25). The exception was
expanded to include discussions between department personnel on judicial
department internet sites protected by a separate password on which
ideas about the possible future direction of department policy are
shared with peers. The exception exists to encourage candid discussion
of issues on an informal basis. Where such discussion results in action
of interest to the public by a judicial department body, that decision
is accessible pursuant to rule (b)(13). See Guidelines at pp. 33-34.
(b)(12). This exception is based on (c)(24) relating to
internal materials prepared for a department board or committee and
records of its deliberations. The exception governs only materials
prepared for decision of a contested matter. The exception has been
narrowed to provide for public access to decisions of these bodies. It
is expected that the Court or its boards and committees will prepare a
record of the decisions which will be accessible to the public. Records
of the department pertaining to the judicial or quasi-judicial
deliberations other than those covered by this narrow exception are
governed by rule 6. See especially rules 6(b)(20) and (21).
(b)(13). This exception recognizes the need for frank
and open discussion of issues important to the judicial branch and the
desirability of keeping accurate records of meetings for future
reference. Court systems which have adopted rules governing access to
administrative records have recognized the need to except preliminary
and pre-decisional records. 17A Ariz. Rev. Stat., R. 123 d (e)(6) (West
2002); Mich. Administrative Order 1997-10 d (B)(3). Similarly, the
Guidelines recommend protection of A
information collected, and notes, drafts and other work product
generated during the process of developing policy relating to the court=
s administration of justice and its operations or the operation of the
clerk of court.@ Guidelines,
supra, at 33-34. However, the exception also recognizes that the
public should have access to decisions made by all administrative bodies
of the department. Id. Minutes of the standing rules committees
charged by the Supreme Court with recommending rules for the operation
of the Vermont courts are entirely accessible.
The definition of A
record@ in rule 3(a) of these
rules includes materials received in electronic form. However, the
definition includes only materials A
made or received pursuant to law or in connection with the transaction
of any official business by the court.@
See also rule 3(c) which defines administrative record as one pertaining
to an entity of the judicial branch. A Florida statute which contains
identical relevant language to that of rule 3(a) has been interpreted to
not include personal e-mail sent by a public employee. Times
Publishing Co. v. City of Clearwater, 330 So. 2d 844 (Fla. Ct, App.
2002) (review granted March 10, 2003). But cf. Tiberino v. Spokane
County, 13 P. 3d 1104 (Wash. App. 2000) (employee=
s personal e-mail treated as a public record where the e-mails had been
printed in preparation for litigation concerning termination of the
sender.) However, the vast majority of e-mail generated within the
judicial branch would be covered by the broad definitions of
A record@
and A administrative record@
in rule (3)(a)&(c) respectively and be presumptively accessible under
rule 5(a).
Judicial branch e-mail may be excepted from public
access because it fits an exception for a case record. See, for example,
rule 6(b)(12). Where e-mail would constitute both an administrative and
a case record under these rules, the e-mail should be considered a case
record. Rule 3(b). E-mail may also be covered by an exception for
administrative records apart from this sub-section. Rule 6(b)(12). While
e-mail is to be treated the same as other forms of administrative
records, this rule recognizes that the judicial branch cannot maintain
all administrative records indefinitely. With regard to e-mail, for
example, system capacity limitations will periodically require that
e-mail which has not been saved be eliminated from the back-up system.
(b)(15). The exception is a limited one for a very small
amount of information in records kept by the judicial branch and its
boards. Social security numbers are protected by Vermont Statutes and
would also be protected by (b)(1). There is little public interest in
scores of test-takers and related information which is protected by 1
V.S.A. ' 317(c)(8) and
' 5(b)(4) of these rules.
(b)(16). Personal identifying information contained in
personnel records is protected by '
(b)(3). This exception is intended to protect judges and court
personnel and their families from possible intimidation or harassment at
their homes as a result of dissatisfaction with actions of the court.
The exception is also intended to protect the privacy of judges, court
personnel and attorneys who have chosen to limit public access at their
homes. Michigan, for example, exempts personal information to protect
court personnel privacy. Mich. Administrative Order, 1997-10
' (e)(1) . The Guidelines,
supra at p. 34, recognize the desirability of withholding
information about court personnel for security and privacy protection.
The scope of the exception is quite limited: information not otherwise
available to the public cannot be obtained by the expedient of resort to
court records. However, the information obtained from judicial branch
records should be disclosed to law enforcement personnel when needed,
for example, to secure a warrant or obtain the services of a public
defender.
(b)(17). Traditional mail addresses and general access
telephone and e-mail addresses are readily available to the public to
provide for complete access to the courts and other judicial branch
entities. This exception is intended to prevent ex parte communication
with judges or other inappropriate direct contact with judges and court
personnel. Unlike phone calls, traditional mail or e-mail directed to
the court generally which can be screened by court personnel for
inappropriate communications, contact through individual direct phone
numbers or e-mail addresses cannot be so screened. These direct methods
of communication have been utilized for ex parte communications, other
inappropriate attempts to influence the actions of court personnel and
intimidation of court personnel in the past. The danger of misuse will
become more acute as direct phone systems become more heavily utilized
by the judicial system and use of direct electronic access to court
personnel becomes more common. The exception also furthers the privacy
goal recognized in rule b(16) above.
(b)(18). Members of the Vermont bar are required to
submit their e-mail addresses so the court can utilize electronic
transmission of material such as proposed rule changes to save on
mailing costs and more efficiently utilize limited judicial branch
staff. This exception would except only work e-mail addresses of private
members of the bar, not those associated with the judicial branch and
who are public employees. Persons other than attorneys not employed by
the public sector are able to determine which methods of communication
they wish to utilize in the conduct of their professional activities.
The exception accords members of the bar the same privilege, preventing
public access to the e-mail information by the expedient of contacting
the judicial branch which has collected the information for a very
specific purpose other than public disclosure. Office telephone numbers
and mail addresses are readily available to the public.
The exception may exist for only a relatively limited
period of time. If and when the court system approves use of electronic
mail as an official form of notice, e-mail addresses of attorneys must
be accessible to the public. The exception provides a transition period
within which members of the bar can become acclimated to likely
electronic transmission and storage of legal documents in state as well
as federal courts.
These rules, as amended, is prescribed and promulgated to become
effective on ______________, 2004. The Reporter's Notes are advisory.
The Chief Justice is authorized to report these amendments to
the General Assembly in accordance with the provisions of 12 V.S.A.
' 1, as amended.
Dated in Chambers at Montpelier, Vermont, this ______ day of
______________, 2004.
______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
________________________________________
Marilyn S. Skoglund, Associate Justice
________________________________________
Paul L. Reiber Associate Justice
PROPOSED
|
Send comments and suggestions
to