NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                           2019 VT 43

                                          No. 2019-005

In re Affidavit of Probable Cause                               Supreme Court
(Jacob Oblak, Appellant)
                                                                On Appeal from
                                                                Superior Court, Chittenden Unit,
                                                                Criminal Division

                                                                May Term, 2019

Kevin W. Griffin, J.

Jacob Oblak, Pro Se, Essex Junction, Plaintiff-Appellant.


PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.


       ¶ 1.    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).

       ¶ 2.    Petitioner sought access to the affidavit of probable cause filed in connection with

a criminal charge of disorderly conduct against W.R. and the court’s decision wherein it found no
probable cause in that matter. According to the petitioner, the incident that formed the basis for

the allegation against W.R. had garnered much public and press attention. For his own purposes,

petitioner sought the documents from the criminal-division clerk twice. The first time he requested

the documents, the clerk explained that the court had no record of any case involving W.R.

Petitioner returned the next day and spoke with a different clerk. Petitioner asked what procedure

was available to petition the court to unseal a sealed record and was told that no remedy was

available to him and that the court had no record to unseal concerning W.R. Pursuant to Rule 6(h),

petitioner appealed the denial of access to the records to the presiding judge, which was denied.

Petitioner timely appealed said denial to this Court.

       ¶ 3.    In this matter, there are no factual issues in dispute and the petition raises a pure

question of law as to the public’s right of access to court records. We review questions of law de

novo, which is nondeferential and plenary. Rhoades Salvage/ABC Metals v. Town of Milton

Selectboard, 2010 VT 82, ¶ 6, 188 Vt. 629, 9 A.3d 685 (mem.) (citing Searles v. Agency of

Transp., 171 Vt. 562, 562, 762 A.2d 812, 813 (2000) (mem.) (“The relevant facts, set forth above,

are not in dispute; therefore, the issue is one of law, and our review is nondeferential and

plenary.”)).

       ¶ 4.    The fulcrum of this matter is the Vermont Rules of Public Access to Court Records

(PACR).* In 2001, this Court enacted the rules to “govern access by the public to the records of

all courts and administrative offices of the Judicial Branch of the State of Vermont,” and

announced that “[t]hey shall be liberally construed in order to implement the polices therein.”



       *
           On May 1, 2019, this Court promulgated amended Rules for Public Access to Court
Records, which go into effect on July 1, 2019. The rules cited in this opinion refer to those in
effect prior to the amendment. While the numbers and text of some rules have changed, the
substance of the applicable rules have not.

       We do not consider 13 V.S.A. § 7603 because it was not in effect when the finding of no
probable cause was made in this case.
                                             2
V.R.P.A.C.R. 1.     Rule 4 explains that “[e]xcept 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.” Rule 6, titled “Case Records,” reiterates the policy that “[t]he

public shall have access to all case records” per the rules’ provisions, but then outlines thirty-five

exclusions to this general policy. Rule 6(b)(24), the exclusion at issue in this appeal, excludes

from public access:

                 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.

        ¶ 5.    When discussing the Rule 6(b)(24) exclusion, the Reporter’s Notes state “[n]o

statute or rule restricts public access to such records.” Rather, “[t]his exception [was] based on

the [drafting] Committee’s determination that records filed in court in connection with the

initiation of a criminal case should not be open to the public until and unless a judicial officer finds

that ‘there is probable cause to believe that an offense has been committed and that the defendant

has committed it.’ ” Reporter’s Notes, V.R.P.A.C.R. 6 (quoting V.R.Cr.P. 4(b)). This Court

adopted the rules as proposed by the Committee.

        ¶ 6.    As a preliminary matter in its order denying petitioner access to the requested

documents, the court noted that the affidavit and court decision requested were not sealed, but

instead were specifically restricted from public access under Rule 6(b)(24). Quoting from In re

Sealed Documents, 172 Vt. 152, 160, 772 A.2d 518, 526 (2001), the court reiterated “[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”

to support its conclusion that denial of access to the requested records was appropriate in

accordance with the rule.



                                                   3
       ¶ 7.    The court then turned to petitioner’s First Amendment argument. The court

explained that when addressing the openness of court proceedings based on the First Amendment

in the first instance, the United States Supreme Court has looked to history to determine whether

a public right of access exists. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

573 (1980) (“From this unbroken, uncontradicted history, supported by reasons as valid today as

in centuries past, it must be concluded that a presumption of openness inheres in the very nature

of a criminal trial under this Nation’s system of justice.”). The court also referenced Greenwood

v. Wolchick, wherein we wrote:

               In analyzing a claim of a First Amendment right of access to a
               criminal proceeding other than a trial, the United States Supreme
               Court noted that our decisions have emphasized two complementary
               considerations[:] whether the place and process has historically been
               open to the press and general public and whether public access plays
               a significant positive role in the functioning of the particular process
               in question.

149 Vt. 441, 443, 544 A.2d 1156, 1158 (1988) (quotation and alterations omitted). The court then

held that petitioner failed to show that records of criminal proceedings where no probable cause

was found have historically been open to the press and general public.

       ¶ 8.    The court next looked to this Court’s holdings in cases where public access to

affidavits of probable cause was at issue, and noted that in those instances, this Court was not

reviewing proceedings in which the trial court found that information or indictments were not

supported by probable cause. See State v. Schaefer, 157 Vt. 339, 341, 599 A.2d 337, 344 (1991)

(reviewing case where trial court granted motion to suppress and prosecutor dismissed charges);

Wolchik, 149 Vt. at 445, 544 A.2d at 1158 (rejecting “petitioner’s argument that affidavits of

probable cause should be sealed, at a defendant’s request, until a jury is empaneled or the case is

disposed of with a plea”); State v. Tallman, 148 Vt. 465, 467, 537 A.2d 422, 423 (1987) (reviewing

case where, after finding probable cause, trial court sealed affidavit of probable cause). The court

declined to extend the holdings of those cases to this petition where no probable cause was found.

                                                  4
         ¶ 9.    On appeal, petitioner argues as noted above. However, neither petitioner nor the

court below considered whether Rule 7 should be engaged. Rule 7 provides exceptions to the

exclusionary Rule 6. Pursuant to Rule 7(a), “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.” “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.”          V.R.P.A.C.R. 7(a). And, “[i]n

considering such an order, the judge shall consider the policies behind this rule.” Id. This did not

happen in this matter.

         ¶ 10.   While the exact policy considerations behind the rule excluding affidavits of

probable cause is not made clear in the Reporter’s Notes, there are many valid reasons that support

exclusion to public disclosure. When a person has been charged with a crime but a judicial officer

has found no probable cause to believe that the offense was committed and that the defendant

committed it, the person charged in the flawed affidavit may well deserve and desire to have their

privacy protected. Or the fact that rank hearsay is sometimes included in affidavits of probable

cause may support a policy that protects those persons mentioned in affidavits. However, it should

be noted that a failure to find probable cause does not necessarily end a criminal matter—the State

is free to bring the same charges again with better evidence that could support a finding of probable

cause.

         ¶ 11.   In other situations where statutes or court rules make records or information

confidential, the courts have authority to decide if openness is critical for the public understanding

or confidence in the proceeding. For example, 18 V.S.A. § 7103(a)(3) requires that all applications

for hospitalization under the mental health statutes remain undisclosed unless a court determines

“that disclosure is necessary for the conduct of the proceedings before it and that failure to make

disclosure would be contrary to the public interest.”

                                                  5
       ¶ 12.   As to petitioner’s claim that denial of access is a violation of his First Amendment

right of access, we refer to our decision in In re Sealed Documents wherein we noted that the

appellants, four media organizations, had a presumptive right of access to sealed search warrants

and related materials under 4 V.S.A. § 693, the applicable statute at that time that provided for

public inspection and examination of court records. 172 Vt. at 159, 772 A.2d at 525. We

concluded that the trial court’s rejection of appellants’ First Amendment claim was amply

supported: “The great weight of authority holds that pre-indictment search warrant materials have

not ‘historically been open to the press and general public,’ . . . and therefore access is not

compelled under the First Amendment.” Id. at 155, 772 A.2d at 522 (quoting Press–Enter. Co. v.

Superior Court, 478 U.S. 1, 8 (1986)). We further cited to Seattle Times Co. v. Eberharter, 713

P.2d 710, 715 (Wash. 1986) (en banc), where the court wrote “the deeply-rooted historical tradition

and the role of public access in furthering the process itself . . . are not present in the probable

cause determination [for issuance of search warrants].” And we cited to Times Mirror Co. v.

United States, 873 F.2d 1210, 1219 (9th Cir. 1989), in which the court refused to recognize a

common law right of access to pre-indictment search warrant materials “when there is neither a

history of access nor an important public need justifying access.”

       ¶ 13.   The lower court properly employed a similar analysis in this case: looking at

whether affidavits of probable cause have historically been open to the press and general public.

However, we address issues of constitutional significance only when the matter is squarely and

necessarily presented. Wood v. Wood, 135 Vt. 119, 121, 370 A.2d 191, 192 (1977). In this case,

only one side, the petitioner, is arguing the issue. Because we remand for reconsideration of the

request under Rule 7 of PACR, we do not decide the constitutional issue at this time.

       ¶ 14.   We remand this matter to the criminal 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

                                                 6
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.

        Reversed and remanded.


                                                  FOR THE COURT:



                                                  Associate Justice




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