Several news organizations and First Amendment advocacy groups are suing the Vermont judiciary, alleging delays in providing access to public court filings.
Courthouse News Service, the Vermont Press Association, the New England First Amendment Coalition, as well as the parent companies and organizations of VTDigger.org, Seven Days, the Burlington Free Press and WCAX-TV, are among the entities bringing the legal action.
The lawsuit names Patricia Gabel, Vermont’s court administrator, as well as various clerks of courts in counties across the state, as defendants.
Waiting days for a filing, according to Bill Girdner, editor of Courthouse News Service, diminishes the news value of a lawsuit.
“The tradition of having access to the new cases upon receipt is common throughout much of New England and throughout the nation,” he said.
Courthouse News Services, based in Pasadena, California, describes itself on its website as a “nationwide news service for lawyers and the news media.”
Michael Donoghue, executive director of the Vermont Press Association, said Courthouse News Service is the lead plaintiff, and the press association’s executive board agreed to join in the lawsuit.
“We have heard complaints from our members,” Donoghue said.
Gabel was out of the office Friday and could not be reached for comment.
The lawsuit seeks an injunction requiring the Vermont judiciary to provide access to filed civil complaints at the time they are submitted and to prohibit court employees from denying access to the records.
The lawsuit alleges that even with a recent statewide conversion in Vermont courts to electronic filing, newly filed “non-confidential civil complaints” are not made available to the press and public “contemporaneous” to their filing.
Instead, according to the lawsuit, state and county clerks withhold access to those lawsuits after they are filed, as the records sit in electronic queues, sometimes for days, awaiting review and processing before being made public.
Those delays, the lawsuit stated, violate the First Amendment and “are also easily avoidable, as demonstrated by courts across the country that utilize electronic filing of civil complaints and provide access upon receipt.”
Since the April implementation of electronic filing in Vermont, the lawsuit estimates courts have made on average a little more than 50% of the complaints available on the day of the filing, with averages falling well below 50% in many of the state’s Superior Courts.
In other courts in the country, according to the filing, civil complaints become available to the public once crossing a court’s intake counter.
“Journalists reviewed the new complaints as part of their work on the courthouse beat, because they often contained news of disputes and controversies with local and national import,” the lawsuit stated. “That news was reported as soon as the complaints were received, because, like fresh bread, news grows stale quickly.”
Similar “no access before process” policies have been determined to be unconstitutional in violation of the First Amendment, according to the lawsuit.
“Federal courts across the nation,” the filing stated, “have overturned policies and practices that delayed access to newly filed complaints for even a short time while they were being processed into a court’s docket because such (practices) fail constitutional scrutiny.”
The public, which funds the operation of the courts, the lawsuit stated, is entitled to know who is invoking the authority of the judicial branch and to what end.
“When a new complaint is withheld, the public has no way of knowing that a new civil proceeding has been initiated,” according to the lawsuit.
Courthouse News Service stated in the lawsuit that it made unsuccessful efforts to resolve the issue with the Vermont court system, sending a draft of the complaint to Gabel, the state’s court administrator.
Justin Silverman, executive director of the New England First Amendment Coalition, said the issue is not just important for journalists, but the public at large as well.
“This is a concern for everyone in Vermont to make sure they are aware of what is happening in their courts,” he said. “It really is a universal issue for all Vermonters.”
He said that Massachusetts, which is not known for providing great access to public records, does provide judicial records filed in court on the same day as they are submitted.
“We’ve seen this done in many other states,” Silverman added.
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