Federal appeals court affirms right to prompt access to Vermont state court records

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In a split decision, a federal appeals court has affirmed a lower court ruling that state court officials in Vermont cannot delay the release of court filings until after a review by state officials.

Before March 2020, Vermont’s Superior Court did not accept electronic filings. Members of the public and the media could review newly filed paper documents in person at courthouses.

Beginning in 2020, when Vermont courts transitioned to electronic filing, the Superior Court adopted a policy of denying public access to newly filed civil complaints until a court clerk reviewed them to make sure that they were signed, that they did not contain unredacted confidential information, that they complied with technical requirements, and that they did not show unredacted filers’ notes.

A group of press entities, led by Courthouse News Service, filed a lawsuit challenging the process as a First Amendment violation. Reporters routinely review new complaints filed to identify newsworthy cases.

After a bench trial, U.S. District Court Judge Christina Reiss agreed with the plaintiffs, ruling that the pre-access review process violated the plaintiffs’ First Amendment right of access to judicial documents.

Reiss also issued a permanent injunction barring the Vermont state courts from withholding complaints until after their review.

Vermont’s court administrators and clerks appealed to the U. S. Court of Appeal for the Second Circuit. The Second Circuit agreed with Reiss that the review process violated the plaintiffs’ First Amendment right of access.

But the Second Circuit vacated the permanent injunction “to the extent that it barred the defendants from engaging in any review for unredacted confidential information before permitting access to the complaints.”

Before electronic filing, when someone sought access to a complaint, court staff would conduct a “quick file audit” to confirm the absence of confidential information and would remove any confidential information from the file before allowing access, according to the Second Circuit’s decision.

Beginning in March 2020, when the Vermont courts transitioned to an electronic case management system, the procedures changed. Within a year, virtually all documents were required to be filed electronically.

Generally, the press and public can review electronically filed documents only at designated display terminals in courthouses and judiciary offices during regular business hours, although the court administrator has the discretion to make some civil case records accessible remotely.

If a court clerk finds that a filing is not compliant with the public disclosure rules, they can withhold public access, redact the filing, or reject it entirely.

The clerk also can refer the matter to a judge who can impose sanctions or make a referral to the state’s Professional Responsibility Board for disciplinary review.

The court staff rejected only three exhibits related to two complaints, out of 4,156, during about 16 months between the start of the transition to electronic filing and Aug. 6, 2021, (the last day for which data was available prior to trial). Across all types of filings (not just complaints) 138 filings were rejected for revealing inappropriate information.

The trial took place on Oct. 25 and 26, 2021. Reiss reviewed the delays resulting from the pre-access review process in releasing to the public the 4,156 complaints.

The data showed:

• 8% of complaints were made available to the public on the day of filing
• 6% were made available on the day after filing
• 6% were made available two days after filing
• 7% were made available three days after filing
• 4% were made available four or more days after filing

The injunction barred the defendants “from prohibiting public access to newly filed civil complaints which have not been designated confidential by the filer until the Vermont Superior Court has completed a pre-access review process,” according to the Second Circuit decision.

The Second Circuit agreed with the defendants that “no rule of law justified such an injunction on the basis of trial evidence or any of the trial court’s findings.”

The injunction essentially required the instantaneous release of new civil complaints without permitting any delay whatsoever for pre-access review, no matter how rapid, efficient, and well justified by its objectives it may be, the court wrote.

The Second Circuit ruled that evidence “did not support a conclusion that the Superior Court would be unable to develop pre-access review processes that would be consistent with the requirements of the First Amendment.”

But the evidence and the findings “did support the conclusion that the processes being followed in the period covered by the trial evidence violated the First Amendment.”

“We see no justification for a ruling absolutely barring the Superior Court from instituting a substantially improved practice,” the Second Circuit ruled.

Judge Richard J. Sullivan concurred in part of the decision and dissented in part.

“Although I agree with the majority that plaintiffs have a presumptive First Amendment right of access to newly filed complaints, I cannot agree that defendants’ pre-access review process violated that right in this case,” Sullivan wrote.

“I would reverse the district court’s judgment and vacate its injunction,” he wrote.

“I agree with the majority and the district court that a qualified First Amendment right of access applies to the newly filed complaints at issue in this case,” he wrote.

“But I cannot agree with the majority’s conclusion that defendants failed to demonstrate that the pre-access review process was narrowly tailored to achieve a higher value without unduly imposing on … plaintiffs’ presumptive right of access,” he wrote.

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