SCOVT reverses denial of access to criminal court record and remands for joinder of additional parties and for further proceedings.

In re Affidavit of Probable Cause (Jacob Oblak, Appellant), 2019 VT 43 [filed 6/28/2019]

SKOGLUND, J. In this matter, Jacob Oblak petitioned the superior court for access to an affidavit of probable cause filed in a criminal case and was denied. He appeals to this Court and argues that Vermont Rule of Public Access to Court Records 6(b)(24), which excludes from public access records filed in a criminal proceeding when no probable cause has been found, was not intended “to transform traditionally public documents [including affidavits of probable cause] into secret ones.” He further argues that the lower court’s interpretation of Rule 6(b)(24) violates the First Amendment.

Because we find that the lower court should have considered his petition in light of the “Exceptions” provisions of Rule 7, we reverse and remand. V.R.P.A.C.R. 7(a)(3).

We remand this matter to the civil division of the superior court for a determination that circumstances exist that weigh in favor of or against access to the requested documents. The process contemplated by Rule 7(a) affords “[a]ll parties to the case to which the record relates, and such other interested persons as the court directs . . . a right to notice and hearing before such order is issued.” Arguably, this would include the state’s attorney who filed the affidavit and W.R. and his counsel. We leave it to the court below to decide if other entities are necessary for resolution of this issue and to consider again petitioner’s First Amendment challenge as part of the analysis under Rule 7.

With proper parties present, the court will be able to assess whether “a specific showing of substantial harm to public or private interests” would overcome any right of access. In re Sealed Documents, 172 Vt. at 154, 772 A.2d at 521.