Wednesday, August 10, 2011

Can You Keep a Secret?

In re Search Warrants, 2011 VT 88 (mem.)

Let us begin by not ducking the identity of the putative victims in this case.  William and Lorraine Currier disappeared from the house on June 8, 2011. As of this date, no trace of them has been found, at least as far as the public knows.   Their families remain distraught.   And the community remains sympathetic and insatiably curious to the fates of this benign and friendly couple who has suddenly vanished. The only leads appear to be a series of search warrants that the Essex police have executed against individuals and properties in the area.  The press and members of the general public have sought access to these records in the search for some answers.  

That is the question of the present case.  Does the public have a right to the supporting information from a search warrant after that warrant has been served, but before the investigation is complete?

Rule 6(16) of the Vermont Rules for Public Access to Court Records states that the information supporting a search warrant becomes public information after the warrant is served.  Only if there is good cause to keep this information confidential can the State seek and the courts grant an injunction to seal the warrants.

The State offers three reasons why it wants this information to remain confidential.  First, the status of the victims is unknown.  Tipping off a suspect could threaten the Currirers’ lives.  Second, there are no suspects in custody.  Revealing this information could alert potential suspects and allow them to flee or cover their tracks.  Third, the police have an interest in maintaining the integrity of their investigation, especially, one as difficult as this one. 

The SCOV majority buys into these reasons and reverses the trial court.  The information, in its entirety will remain, for the time being, sealed and confidential. 

In his dissent, Justice Dooley, joined by Justice Johnson, argues that the majority’s decision is wrong because it pushes aside the general  principle of public access contained in Rule 6(16) and reverses the standard to favor the State.  For the dissenters Rule 6(16) embodies a policy that presumes the public's right to such information as a matter of course.  Only when the State can muster good cause will this right be limited, and only then to the extent that the sealing reflects the minimal amount necessary to preserve the public's interest.   

The dissent's point is that Rule 6(16) embodies a specific and limited exception to the general policy and that the SCOV needs to change the rule first if it is going to shift that policy to allow orders to be sealed in whole and in bulk.  

In the end, this difference offers only a more nuanced approach than the majority's position.  The dissenters would have denied the stay, but they would have allowed the State to redact any specific information that it could show had good cause to remain confidential and important to the investigation.  Using the dissent's example that would have made the State disclose several pages of boiler plate language from the search warrants, but it still would have allowed them to redact the juicy details.  

From a reporter's perspective, I am not sure this would have made much difference, but from a lawyer's perspective, Dooley's dissent is the outline that I would use next time I wanted search warrant records where the State was asserting good cause to keep them confidential.  I might not win, but it would get me more than the majority's blanket seal.  And even incomplete information will presumably give a picture of what the police are doing with their investigation and how aggressively they are pursuing leads—a charge that has been leveled against the police in this case. It is not the victory advocates of public information might desire, but it is a functional equivalent and one that is lost here.

Such an approach would also preserve the policy of Rule 6(16) while still allowing the State to assert its interest in controlling the investigation.  But as with most dissents, Justice Dooley’s position remains one vote shy of being binding opinion. 

Maybe a different result would follow in the future if the news organizations agreed to substitute names for phrases like “you know who,” “old friend,” or “uspectedsay illerkay.”  Newscasters could promise to whisper stories featuring the information so only innocent members of the public heard it.  Or everyone could just promise to bury any story using such information in the column below Rex Morgan, MD.

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