Vt. Pub. Access Ct. R. 9
Vt. Pub. Access Ct. R. 9
Reporter's Notes-2022 Amendments
Rule 9 is comprehensively amended, by substitution of a substantially revised rule, in response to issues presented during implementation of the 2019 revisions of these Rules for Public Access to Court Records, and to update and clarify the procedures for motions to seal or redact a new court filing, or an existing case record, and for motions seeking access to records that are not publicly accessible. The substantive requirements, and applicable standards applicable to such motions-the so-called Press Enterprise standard and the requirements of In re Sealed Documents, 172 Vt. 152, 772 A.2d 518 (2001), as discussed in prior Reporter's Notes-have not changed, although they may be altered by future case law and/or statutory enactments.
Paragraph (a)(1) and subdivision (c) are revised to remove reference to "presiding judge" and clarify that a judge (i.e., "the court" as defined in V.S.A. Title 4) need not have the additional administrative responsibilities of a presiding judge to determine matters of sealing or redacting a court record or providing access to sealed documents. The former reference in this paragraph to a right to notice and hearing is deleted, and replaced by paragraph (a)(4), which mandates a hearing upon request or objection to sealing or redaction. The court retains discretion to direct that a motion to seal or redact be scheduled for hearing, even in the absence of a hearing request or objection to the motion.
Subparagraph (a)(3)(D) clarifies that it is optional to file both a redacted and unredacted copy of a document for which only partial sealing is requested, that is, there may be cases in which the entire document is sought to be sealed, and there may be other circumstances in which a partially redacted version need not be accompanied by an unredacted version. Under In re Sealed Documents, 172 Vt. 152, 772 A.2d 518 (2001), and related case law, and to implement the general command of V.R.P.A.C.R. 3(a), both movants and the court itself are required to consider redaction of case records rather than wholesale sealing if the identified privacy interests can be adequately protected. Filers must also comply with V.R.P.A.C.R. 7(a)(1)(C).
Revised subparagraph (a)(3)(E) deletes reference to standing, in favor of a practical description of persons other than parties who are entitled to notice.
Paragraph (a)(4) does not categorically require that a hearing be scheduled on a motion to seal or redact a new filing or case record, unless any person-party or nonparty-objects or requests a hearing. In that event, the court must schedule a hearing on the motion to seal. The amendment also specifies that the court retains discretion to order that a hearing be scheduled and held, regardless of whether there is objection or a request for hearing. Note also that, even though a motion to seal or redact a new court filing is itself not publicly accessible until the court's decision on the motion, see paragraph (a)(2), it is presumed that the public (and media) will at least have constructive notice of the existence of the motion by means of a minimally descriptive docket or calendar entry.
Paragraph (a)(4) deletes the former provision requiring that a hearing must be scheduled no later than 14 days after the filing of a motion to seal or redact, while retaining the requirement that the hearing be held as soon as practicable. The former text which provided that a hearing be set "notwithstanding other general rules of procedure" (as to filing of motions and responsive memoranda) is deleted, and replaced with the provision that the hearing be held as soon as practicable "after the motion has been fully briefed." Finally, while any hearing on such a motion is presumptively open to the public, it may itself be closed upon specific application to the court and a separate decision by the court that a closed hearing is constitutionally appropriate, indeed necessary; this rule, dealing only with sealing or redaction of and/or access to court records, does not set out the procedures or standards for closure of court hearings, which is covered in fairly extensive case law, see, e.g., State v. Tallman, 148 Vt. 465, 537 A.2d 422 (1987); Greenwood v. Wolchik, 149 Vt. 441, 544 A.2d 1156 (1988).
As to requisite findings and orders to support sealing or redaction, paragraph (a)(5) clarifies that although a hearing is not automatically required, the findings and process prescribed in the existing rule are still required: when a hearing is held upon party or nonparty request or objection; when the court itself has independently determined that a hearing should be held; or if the court issues any order sealing or redacting a court record even though no hearing was held. Paragraph (a)(5) provides that motions must be resolved as soon as practicable.
Subdivision 9(b) is substantially revised to prescribe the circumstances in which all parties to a case may stipulate to the sealing or redaction of a document or documents, in which case the court may for good cause-including its own determination that the requested sealing or redaction is permitted and appropriate-seal or redact the document(s), subject to reconsideration de novo if any future motion by parties or nonparties to unseal is filed under Rule 9(c). The amended rule also specifies that such a "stipulation" may be explicit, or it may occur by lack of opposition. If the court cannot make the required finding of "good cause," then the motion must be set for hearing in accordance with paragraphs (a)(4)-(5), unless withdrawn by the movant(s). A decision on a motion to provide access to a sealed or redacted document or the content thereof is then also subject to the procedures and standards set out in paragraphs (a)(4)-(5).
Former Rule 9(b) provided that parties could not seal all or a portion of a case record by mere stipulation, contemplating that the court would always need to set such matters for hearing. See Reporter's Notes, 2019 Amendments. More recent experience, and comments received about the rule, demonstrated that such an approach was too cumbersome and unnecessary, especially in situations such as civil actions involving trade secrets and confidential business information where protective orders are common and often agreed to, and sealing or redaction is appropriate, indeed now automatic given the addition of V.R.P.A.C.R. 6(b)(22) exempting such matters from public access. Thus revised Rule 9(b)(3) explicitly makes the rule applicable to stipulated motions for protective orders. However, the court always retains ultimate discretion to approve or deny stipulations for sealing or redaction.
Rule 9(c) substitutes specific reference to paragraphs (a)(4)-(5) for the generally applicable procedures, and standards in determining a motion for access to case records that are already not publicly accessible. Such a motion may be made by any person, and not just a party to the case; may be made at any time; and may be made even after the case itself has been concluded.
Rule 9(e) provides the ability to appeal any order or decision made by the superior court under this rule, and specifies the applicable procedure, i.e., as an appeal from a collateral final order pursuant to V.R.A.P. 5.1.
Rule 9(f) addresses requests to seal that are made directly in the Supreme Court concerning Supreme Court documents. These motions follow the process outlined in V.R.A.P. 27 and are therefore determined initially by a single justice. Per V.R.P.A.C.R. 6(i) and V.R.A.P. 25, documents on appeal retain their sealed or unsealed status during the appeal.
Reporter's Notes- 2024 Amendment
Rule 9 is amended to change the terms "document" or "document or information" to "record" consistent with concurrent amendments to Rule 2.
Rule 6(b)(2) is amended concurrently with this amendment to clarify that the process set forth in Rule 9 does not apply to motions to seal search warrants and related materials. See Reporter's Notes-2024 Amendment, V.R.P.A.C.R. 6.