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RULES FOR PUBLIC ACCESS TO COURT RECORDS
These rules govern access by the public to the records of all courts and administrative offices of the Judicial Branch of the State of Vermont, whether the records are kept in paper or electronic form. They provide a comprehensive policy on public access to Judicial Branch records. They shall be liberally construed in order to implement the policies therein.
Rule 1. Purpose; ConstructionAdopted Oct. 27, 2000, eff. May 1, 2001.
Rule 2. Scope
(a) In General. These rules govern access to judicial branch records where the right of access is solely that of a member of the public.
(b) Specific Right of Access. If, based on a statute, judicial rule or other source of law, a person, or an authorized officer or member of the Executive or Legislative Branch, claims a right of access greater than that available to a member of the public, the record custodian shall act in conformity with the applicable statute, rule or other source of law. If a person, or an authorized officer or member of the Executive or Legislative Branch, claims a right of access greater than that available to the public as a whole, but not based on a specific statute or rule, that claim shall be determined by the court administrator for administrative records or the presiding judge of the court involved for case records. In making that determination, the court administrator or judge shall be guided by these rules and any other relevant rules or statutes and shall weigh the special interest of the person or officer or member seeking the record against the interests protected by the restriction on public access. An appeal from such a determination may be made to the Supreme Court.
Adopted Oct. 27, 2000, eff. May 1, 2001.Rule 3. Definitions
(a) "Record" means any paper, letter, map, book, other document, tape, photograph, film, audio or video recording, court reporter's notes, transcript, data compilation, or other materials, whether in physical or electronic form, made or received pursuant to law or in connection with the transaction of any official business by the court. It includes all evidence received by the court in a case. All records are either administrative records or case records.
(b) "Case record" means any judicial branch record pertaining to a particular case or controversy. Any judicial branch record that fits within both this definition and the definition of an administrative record shall be considered a case record.
(c) "Administrative record" means any judicial branch record pertaining to the administration of the Judicial Branch or any court, board or committee appointed by the Supreme Court, or any other entity within the Judicial Branch.
(d) "Physical record" means a judicial branch record that exists in physical form, irrespective of whether it also exists in electronic form.
(e) "Electronic record" means a judicial branch record that exists in electronic form, irrespective of whether it also exists in physical form.
(f) "Record custodian" means the person responsible for the safekeeping of a record. In the absence of a designation to the contrary, the custodian of any judicial branch record (i) held by a court shall be the clerk of that court; (ii) held by the office of the court administrator shall be the director of the appropriate division of that office; or (iii) held by a board or committee appointed by the Supreme Court shall be the staff person assigned to that board or committee, or, if no staff person has been assigned, the court administrator.
(g) "Judge" means a justice of the Supreme Court; a district, superior, probate, environmental or assistant judge; a family court magistrate; or a judicial bureau hearing officer.
(h) "Presiding judge" means the district, environmental, probate or superior judge assigned to the court, and, if more than one such judge is assigned to the court, the judge designated as presiding by the administrative judge for trial courts. With respect to the Supreme Court, the "presiding judge" shall be the Chief Justice or a justice appointed by the Chief Justice to act as a presiding judge. With respect to the judicial bureau, "presiding judge" means a hearing officer of the bureau, as designated by the administrative judge for trial courts. With respect to a board or committee appointed by the Supreme Court, "presiding judge" means the chair of that board or committee.
(i) "Public" or "member of the public" means any individual, group, or entity, including the print or electronic media or their representatives, who seeks access to any judicial branch record.
(j) "Judicial branch record" means a record in the possession, custody, or control of the judiciary or was in the possession of the court for purpose of a court decision.
Adopted Oct. 27, 2000, eff. May 1, 2001.
Rule 4. General Policy
Except as provided in these rules, all case and administrative records of the Judicial Branch shall be open to any member of the public for inspection or to obtain copies.
Adopted Oct. 27, 2000, eff. May 1, 2001.
Rule 5. Administrative Records
The public shall have access to all administrative records in accordance with the provisions of this rule. The procedures, policies, and exemptions in 1 V.S.A. §§ 316, 317(c), and 318 shall apply to requests for inspection or to obtain copies of administrative records. The Court Administrator is designated as the "head of the agency" for purpose of appeals from decisions of the administrative record custodian. The Court Administrator shall inform all administrative record custodians of the fee schedule authorized by 1 V.S.A. § 316(d).
Adopted Oct. 27, 2000, eff. May 1, 2001.
Rule 6. Case Records
(a) Policy. The public shall have access to all case records, in accordance with the provisions of this rule, except as provided in subsection (b) of this section
(b) Exceptions. The public shall not have access to the following judicial branch records:
(1) Records on file with the probate court in connection with an adoption proceeding, unless disclosure is authorized pursuant to Article 6 of Title 15A;
(2) Records of sterilization proceedings pursuant to Chapter 204 of Title 18;
(3) Records of a grand jury and any indictment of a grand jury, as provided in Rule 6 of the Vermont Rules of Criminal Procedure;
(4) Records of the family court in juvenile proceedings governed by Chapter 55 of Title 33, except as provided in 33 V.S.A. § 5536;
(5) Records of the court in mental health and mental retardation proceedings under Part 8 of Title 18, not including an order of the court, except where the court determines that disclosure is necessary for the conduct of proceedings before it or that failure to make disclosure would be contrary to the public interest;
(6) A presentence investigation report as provided in Chapter 5 of Title 28 and Rule 32(c) of the Vermont Rules of Criminal Procedure;
(7) RESERVED;
(8) Records containing a description or analysis of the DNA of a person if filed in connection with a family court proceeding;
(9) Records produced or created in connection with discovery in a case in court, including a deposition, unless used by a party (i) at trial or (ii) in connection with a request for action by the court;
(10) Records containing financial information furnished to the court in connection with an application for an attorney at public expense pursuant to 13 V.S.A. § 5236(d) and (e), not including the affidavit submitted in support of the application;
(11) Records containing financial information furnished to the court in connection with an application to proceed in forma pauperis, not including the affidavit submitted in support of the application;
(12) Records representing judicial work product, including notes, memoranda, research results, or drafts prepared by a judge or prepared by other court personnel on behalf of a judge, and used in the process of preparing a decision or order;
(13) Any federal, state or local income tax return, unless admitted into evidence;
(14) RESERVED;.
(15) Records of the issuance of a search warrant, until the date of the return of the warrant, unless sealed by order of the court;
(16) Records of the denial of a search warrant by a judicial officer, unless opened by order of the court;
(17) Records created as a result of treatment, diagnosis, or examination of a patient by a physician, dentist, nurse or mental health professional;
(18) Reports prepared by the Department of Corrections in conjunction with a decision to admit the accused into a furlough program administered by the Department, except that the public shall have access to a short summary of the contents of the report and the recommendation of the Department. Where the Department has not included a summary and recommendation in a separate section with the report, the report shall be subject to public access.
(19) An evaluation by a mental health professional to determine the competency to stand trial and/or sanity of a criminal defendant, if not admitted into evidence;
(20) Records filed or created in connection with a proceeding before the Judicial Conduct Board prior to the filing of a formal charge, as provided by Rule 6(7) of the Rules of Supreme Court for Disciplinary Control of Judges;
(21) Records filed or created in the professional responsibility program, except as provided in Rule 12(A), (B), of Administrative Order No. 9, Rules Governing Establishment and Operation of the Professional Responsibility Program;
(22) Records on file with the probate court in connection with a guardianship proceeding governed by 14 V.S.A. § 3068, if the court finds that the respondent is not mentally disabled;
(23) An evaluation submitted by a mental health professional to the probate court under 14 V.S.A. § 3067, in connection with a guardianship proceeding governed by that section;
(24) Records filed in court in connection with the initiation of a criminal proceeding, if the judicial officer does not find probable cause to believe that an offense has been committed and that defendant has committed it, pursuant to Rule 4(b) or 5(c) of the Vermont Rules of Criminal Procedure;
(25) Records filed or generated in connection with the filing of a civil action prior to service or disposition as provided in Rule 77(e) of the Vermont Rules of Civil Procedure;
(26) A will deposited with the probate court for safekeeping, and indices thereof, as provided by 14 V.S.A. § 2 and Rule 77(e) of the Vermont Rules of Probate Procedure;
(27) The complaint and affidavit filed pursuant to 15 V.S.A. §§ 1103, 1104, but not a temporary order, until the defendant has an opportunity for a hearing pursuant to 15 V.S.A. §§ 1103(b) or 1104(b);
(28) Records of criminal proceedings involving participants in an adult diversion program sealed pursuant to 3 V.S.A. § 164(e);
(29) Records containing a social security number of any person, but only until the social security number has been redacted from the copy of the record provided to the public;
(30) Records with respect to jurors or prospective jurors as provided in the Rules Governing Qualification, List, Selection and Summoning of All Jurors;
(31) Any transcript, court reporter's notes, or audio or videotape of a proceeding to which the public does not have access;
(32) Any evidence introduced in a proceeding to which the public does not have access; and
(33) Any other record to which public access is prohibited by statute
(c) Physical Case Records. To the extent possible, physical case records that are not subject to public access under these rules shall be segregated from records to which the public has access. If a member of the public requests access to a case file, the record custodian shall remove from the file any record excepted from public access before access is provided to the file.
(d) Electronic Case Records. Judicial Branch records kept in electronic form shall be designated as open for public access or closed from public access in whole or in part. The record custodian may deny access to electronic case records. This section shall not be construed to permit on-line access to any case record.
(e) RESERVED.
(f) Inspection Procedure. A case record to which the public has access may be inspected and copied at any time when the office of the clerk of the court is open for business. The record custodian shall act on a request promptly within the time limits set in 1 V.S.A. § 318. If a copy of the case record is requested, 1 V.S.A. § 316(g) and (h) shall apply, and the record custodian shall charge the fees for copying and, if applicable, staff time in accordance with 1 V.S.A. § 316(b)-(d) and (f).
(g) Denial Procedure. If a case record custodian denies access to all or part of a requested record, the custodian shall notify the person requesting the record of the decision, in the manner and within the time limit specified in 1 V.S.A. § 318(a)(2), and notify the person requesting the record of the grievance procedure provided by this rule.
(h) Grievances. Any person aggrieved by a decision made by a case record custodian with respect to a request for access to a physical or electronic case record or a part thereof, including any person about whom information has been requested, has a right to appeal that decision to the presiding judge within the time limit specified in 1 V.S.A. § 318(a)(3). If the decision appealed is to grant access to all or part of a record, the presiding judge may order the decision to be stayed pending a decision on appeal. The presiding judge shall give notice of the hearing to the grievant and may give notice to other interested persons. The appeal proceeding shall be set for hearing, if any, at the earliest practicable date and shall be decided as soon as possible. A decision of the presiding judge may be appealed to the Supreme Court.
(i) Access During Appeals. Records not publicly accessible under this rule remain inaccessible if the case is appealed to another court.
Adopted Oct. 27, 2000, eff. May 1, 2001.
Rule 7. Exceptions
(a) Case Records. Except as provided in this section, the presiding judge by order may grant public access to a case record to which access is otherwise closed, may seal from public access a record to which the public otherwise has access or may redact information from a record to which the public has access. All parties to the case to which the record relates, and such other interested persons as the court directs, have a right to notice and hearing before such order is issued, except that the court may issue a temporary order to seal or redact information from a record without notice and hearing until a hearing can be held. An order may be issued under this section only upon a finding of good cause specific to the case before the judge and exceptional circumstances. In considering such an order, the judge shall consider the policies behind this rule. If a statute governs the right of public access and does not authorize judicial discretion in determining to open or seal a record, this section shall not apply to access to that record.
(b) Administrative Records. Subsection (a) of this section shall also apply to an administrative record, except that the determination shall be made by the court administrator.
(c) Appeals. Appeals from determinations under this section shall be made to the Supreme Court.
Adopted Oct. 27, 2000, eff. May 1, 2001.
Rule 8. Statistical Reports
Nothing in this rule shall prohibit the court administrator or a record custodian from providing a statistical abstract of information contained in records not publicly accessible, provided that the abstract does not identify any person described in the records.
Adopted Oct. 27, 2000, eff. May 1, 2001.
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