In Re Estate of Koran Trombley, No. 737-10-11 Rdcv (Teachout, J., Nov. 7, 2011)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                STATE OF VERMONT

SUPERIOR COURT                                                                                   CIVIL DIVISION
Rutland Unit                                                                               Docket No. 737-10-11 Rdcv



In Re Estate of Koran Trombley


                                    Request to file petition under seal, No. 1

        The Rules for Public Access to Court Records, along with case law and statutes,
make clear that there is an affirmative right of public access to court records. See In re
Sealed Documents, 172 Vt. 152 (2001); 4 V.S.A. § 652(4) (superior court files);
V.R.P.A.C.R. 6(a) (“The public shall have access to all case records.”); V.R.G.D.E.C.R.
3(a) (“The public shall have access to electronic case records…”).

        “It is uncontested, however, that the right to inspect and copy judicial records is
not absolute. Every court has supervisory power over its own records and files, and
access has been denied where court files have become a vehicle for improper purposes.”
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978). As articulated by the
Vermont Supreme Court, “[t]he common law has long recognized that courts are
possessed of an inherent authority to deny access to otherwise public court records when
necessary to serve overriding public or private interests.” In re Sealed Documents, 172
Vt. at 160.

         Case law has developed standards for determining whether motions to seal should
be granted. See In re Sealed Documents, 172 Vt. at 161–62 (citing both civil and criminal
decisions while setting forth factors to be analyzed by trial judge); Petition of Keene
Sentinel, 612 A.2d 911, 915–16 (N.H. 1992) (holding that right of public access extends
to divorce proceedings); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.
1984) (holding that trial court abused discretion by ordering sealing of certain documents
in civil proceedings without articulating specific reasons why sealing was essential to
articulated interests of parties, and by failing to consider less restrictive means of
redaction).

       A motion to seal may not be granted until the Court has held a hearing and made a
finding that there is good cause specific to the case as to why the motion to seal should be
granted. The general procedure is set forth by Rule of Public Access 7(a):

                      the Presiding Judge may seal from public access 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.

        This procedure is supported by Vermont Rules Governing
Dissemination of Electronic Case Records. Those rules also allow a party
to make a motion to remove information from publically-accessible
electronic case records, which the Court will decide after a hearing:

             A party or nonparty whose personal identifiers have been
             improperly included in a filed document or exhibit, or who
             asserts that a nonpublic document involving that person's
             interests has been placed in a publicly accessible file, may
             move under applicable procedural rules to redact the
             improperly included personal identifiers or to remove the
             document from the file, and for a temporary order sealing
             the filing pending disposition of the motion. After hearing,
             the court may seal the filing and order that a redacted
             version be placed in the publicly accessible file or that the
             document be placed in the nonpublic section of the
             electronic file of the case.
V.R.G.D.E.C.R. 3(e).

        The contours of the analysis of “good cause” are set forth by In re Sealed
Documents. The analysis begins with a presumption of public access, and then asks four
questions. The first question is whether the presumption of public access has been
overcome by a showing that “a substantial threat exists to the interests of effective law
enforcement, or individual privacy and safety.” In re Sealed Documents, 172 Vt. at 161
(quoting Cowles Pub. Co. v. Murphy, 637 P.2d 966, 969 (Wash. 1981)). Put another
way, the question is whether the parties have advanced compelling reasons in favor of
their request for nondisclosure. Id.

        The second question is whether the parties have demonstrated the requisite harm
with specificity as to each document. In re Sealed Documents, 172 Vt. at 161–62. The
parties cannot prevail “merely by asserting a general privacy interest. The [] right of
access to the sealed records must be weighed and balanced against privacy interests that
are articulated with specificity.” Petition of Keene Sentinel, 612 A.2d at 916.

        The third question is whether redaction, or other alternative means, would be a
less restrictive manner of protecting confidentiality interests than blanket sealing. In re
Sealed Documents, 172 Vt. at 162. “Documents should be redacted when possible . . . so
that the protective order will have the least intrusive effect on the public’s right of



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access.” Hammock by Hammock v. Hoffman-LaRoche, Inc., 662 A.2d 546, 559 (N.J.
1995).

        Finally, the Court must examine each document individually, and make fact-
specific findings with regard to why the presumption of access has been overcome. In re
Sealed Documents, 172 Vt. at 162–63. The findings and conclusions must be specific
enough to permit both appellate review and review by later trial courts confronted with
requests for access to the sealed information. Id. Petitioner has the burden of
demonstrating a compelling need for confidentiality.

        A hearing will be scheduled to give Petitioner the opportunity to show that the
standards set forth by In re Sealed Documents have been met as applied to the specific
facts of this request to seal, and the three documents involved.

        In the meantime, the Court grants the request to seal on a temporary basis,
pending the hearing. The Court notes that the Petitioner filed the Petition and request to
seal electronically. This means that the pleading is available to the public, as it appears
that the technology is not yet in place for the filing of sealed documents in electronic
form. Therefore, pursuant to Rule 2(b)(2) of the Vermont Rules for Electronic Filing, the
Court authorizes the sealing of the pleadings in nonelectronic form in a paper file (which
the court has already done), and will hold the electronically filed version in a restricted or
confidential category of the electronic file cabinet pending the outcome of the hearing.



___________________________________________                   ______________________
 Judge                                                        Date

Date copies sent to: ____________                    Clerk's Initials _______

Copies sent to:
  Attorney Edward M. Van Dorn Jr. for Plaintiff Charles Trombley,
              Administrator of Estate of Koran Trombley




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