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Vermont to give timely public access to new complaints

The decision to implement on Friday an “auto-accept” system for new complaints fulfills a recent federal injunction and has knock-on effects throughout the nation.

(CN) — In the slip stream of a federal injunction, Vermont’s state court administrator announced that on Friday she will begin making new complaints public when they are submitted.

The announcement was made to the Vermont bar Thursday following an order handed down by U.S. District Judge Christina Reiss permanently enjoining clerks from blocking access to the new complaints while they are being clerically docketed.

In that First Amendment litigation, State Court Administrator Patricia Gabel is the lead defendant. The suit was brought by Vermont media and Courthouse News. Her decision to comply with the injunction promptly is important for a number of reasons.

Her state relies entirely on the Odyssey e-filing platform, like a number of states currently fighting access. They include Maine next door, New Mexico, Oregon and Idaho.

Her decision to move from a delayed system of access to a timely one in the course of roughly three weeks shows that there are no practical impediments to making a similar adjustment in the other states that rely on Odyssey software and are currently fighting access.

The wording of her announcement to the state’s lawyers on Thursday also suggests the state is moving to an “auto-accept” system that, like most of the federal courts, puts the new cases automatically into the court docket with a permanent case number. Previously, only the Las Vegas courts used Odyssey’s auto-accept option.

Referring to the new complaints as the initial filing, Gabel wrote, “Beginning on Friday, initial civil complaints that are submitted using the Odyssey File and Serve code ‘initial filing’ will be automatically entered in the Judiciary’s electronic case management system without prior staff review and acceptance.”

Vermont had insisted on looking over the initial filings to check on whether they should be confidential, and it was the only state in the nation to impose an affirmative duty on the clerks to review new filings for confidentiality. The only other state to have done so, Florida, abolished that duty this summer largely due to the devastating effect it had on public access.

As Gabel told the state bar, “This change means that documents and information designated by the electronic filer as public that are part of the initial filing will be immediately viewable to the public on courthouse public access terminals and on the Public Portal website.

“Previously,” she added, “all electronic filings, including initial complaints and associated documents in such cases, were reviewed by staff before being entered into the electronic case management system

The website access is currently limited to those with “elevated access roles,” which include lawyers and their clients on their individual cases and government officials in general. Within Vermont, the announcement could suggest that the judiciary does not intend to take the media outlets' lawsuit further by appealing to the Second Circuit, although the state attorney general has another ten days to make that decision.

Outside Vermont, the decision to implement auto-acceptance has immediate relevance in Maine which uses the same Odyssey software and is also facing a First Amendment action over an access blackout during clerical processing. In that case, U.S. District Judge Nancy Torresen said the press had no case, a decision that is now on appeal.

A similar case in New Mexico resulted in a limited injunction by Judge James Browning that gave the clerks five business hours in which to make cases public, a policy that would allows the clerks to hold back all new complaints filed in the afternoon until the next day. By then the news in the complaints is stale.

New Mexico officials also use Odyssey software employed by Vermont and the solution of auto-acceptance is equally available to them. But they have already filed an appeal of Browning’s injunction, despite its lenient terms.

The dam-breaking opinion by Reiss in Vermont concluded that state court officials had not been able to justify their blackout, a weakness that would apply to officials fighting against access in Idaho, now before Chief Judge David Nye, and in Oregon, now before Judge Youlee Yim You, as well as Maine and New Mexico.

In her opinion, handed down in late November, she concluded: “Although some courts have sought to impose a bright-line rule for permissible delay, here the focus must be on whether any delay is appropriate because any restriction on the First Amendment right of access must have ‘sufficient justification.’ As the Second Circuit has observed, when a governmental entity contends that the ‘limited denial of access’ is insubstantial, it ‘begs the question of whether there was a sufficient factual basis for denying access at all.’"

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