Adam Silverman

Free Press Staff Writer

A California-based news service is accusing the Vermont court system of improperly concealing newly filed lawsuits in violation of the public's First Amendment right to access court records.

Vermont is the only state in the country that keeps most lawsuits secret until after the papers have been served on defendants — a process that can lead to months of delays in disclosing new cases, according to a lawsuit filed by Courthouse News Service in federal court in Burlington.

The case is public only because it is in the federal system, where most new actions become available the moment they are filed. If the lawsuit were in state court, the proceedings would remain hidden from public view.

"How ironic," joked Megan Shafritz, chief of the Civil Litigation Division with the Vermont Attorney General's Office. She added, in seriousness, that the state intends to defend the current practice.

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The lawsuit asks a federal judge to declare Vermont's confidentiality rules unconstitutional and to order state court personnel to provide immediate access to all newly filed lawsuits. Courthouse News Service also is seeking attorney fees and costs.

The state's justification for the rule is to prevent people who are being sued from learning about cases from third parties. Courthouse News Service says that reasoning is not "compelling or overriding" enough to trump the public's right to see court cases from the beginning.

"Courts across the country have recognized that the presumption of access attaches to judicial documents, including civil complaints and docket records, upon receipt of those documents by a court, and that delays in access are the functional equivalent of access denials," the lawsuit states.

"Vermont state law flips the constitutionally mandated presumption of access on its head," the 15-page complaint adds.

The lawsuit names as defendants Patricia Gabel, the chief administrator of Vermont's court system, along with the Superior Court clerks in each of the state's 14 counties.

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Courthouse News Service is a wire service that reports on lawsuits from the time they are filed in state and federal courts nationwide. CNS has some 2,000 subscribers, including multiple media outlets and prominent law schools.

In February, according to the lawsuit, a CNS reporter examined information for all civil complaints filed last October in Vermont state courts. He found 441 cases, of which 92 — or about 21 percent — remained confidential four months later. The reporter also found that 105 of the cases — 24 percent — were made public the day they were filed, because lawyers had served the complaints on the defendants before filing the lawsuit in court.

The average delay in providing public access to civil court records is about 41 days, according to the Courthouse News Service lawsuit.

That delay is too long, according to the complaint and to several other federal cases that CNS cites.

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In one instance in New York, two-thirds of civil complaints were made available the day of filing, while the remaining third were opened to public view a day or several days later. “Even that short delay gave rise to an injunction directing the court to make cases available in a more prompt manner,” said William Hibsher, a lawyer for CNS with the New York-based law firm Bryan Cave.

Vermont's confidentiality requirements harm Courthouse New Service staff members' ability to do their jobs and has prompted questions from clients about why the company missed certain cases, according to the lawsuit.

"Waiting several weeks for access to what may be a newsworthy civil complaint, which is of course a public document, means the news is most likely stale by the time you see it," Hibsher said.

Shafritz, from the Attorney General's Office, said Vermont had yet to be formally served with the lawsuit, so it was too early for her to comment beyond vowing the state will defend itself.

Hibsher said the next step will be to ask a judge at U.S. District Court in Burlington to issue an injunction against Vermont's enforcement of the confidentiality rules.

One of the lawyers for Courthouse News Service is Robert Hemley of Burlington, who has represented Vermont media outlets, including the Burlington Free Press, in public-records and other cases.

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Contact Adam Silverman at 802-660-1854 or asilverman@freepressmedia.com. Follow him on Twitter at @wej12.