MONTPELIER — The Vermont Supreme Court heard arguments Tuesday about whether to publicly release a judge’s decision blocking the state’s request for raw footage of a police shooting.

The case involves Nathan Giffin, who was shot and killed by police after a standoff at Montpelier High School in January 2018. News station WCAX was at the scene at the time and one of its cameras caught the shooting.

Washington County State’s Attorney Rory Thibault sought that footage through a subpoena as part of his investigation into the shooting to see if any officers should be charged. All of the officers were later cleared of any wrongdoing.

WCAX’s parent company Gray Television refused to hand the footage over so the matter went before a judge. The hearing was confidential because it was part of an active investigation, but according to court records, in Feburary 2018, Judge Howard E. VanBenthuysen sided with the news station and denied the state’s request for the footage, citing the state’s new shield law. After the decision was made, Gray Television filed a motion asking for the decision to be made public.

VanBenthuysen denied that motion, saying because the decision was based on a confidential matter the decision itself was also confidential. Gray Television has appealed that decision to the state Supreme Court, saying the judge abused his discretion.

Chad R. Bowman represented Gray Television. Bowman said according to the state’s rules for public access to court records, the only time a court’s decision is mentioned in terms of confidentiality is in the context of a mental health proceeding but any order of the court is to be made public.

“In grand jury situations, when a witness is held in contempt of court that decision is public. When a third party moves to quash a subpoena during a grand jury proceeding, even though the grand jury proceeding is confidential the decision is public,” he said.

The state’s shield law, which limits a court’s ability to compel reporters to turn over reporting material or to testify, has been on the books for two years. Bowman said VanBenthuysen’s decision is the first one in the state regarding this law.

Thibault argued VanBenthuysen made the right decision because proceedings and rulings in a case like this are confidential and not subject to be released publicly.

He brought up search warrants saying a denied search warrant is never made public but it is kept under seal by the court. He said when a search warrant is granted it is also kept under seal until the search has been conducted.

Thibault argued an inquest subpoena is one of the tools he uses as a prosecutor as part of the executive branch. He said those proceedings, while taking place in court, are governed by the executive branch rules, not court rules.

“This case ended with criminal charges. That’s not to say that a similar posture or similar argument will not be used where an investigation is still in its pendency,” he said.

Thibault brought up investigations into child pornography cases where investigators collect information about someone, such as their IP address, without the suspect knowing about it. He said if the suspect is alerted before the investigation is complete he or she may end up destroying evidence in the case.

He said while his office decided not to press charges after the investigation into the Giffin case, another state’s attorney down the road could take another look and make a different decision, so the order needs to stay confidential.

The New England First Amendment Coalition released a statement about the case which said: “The New England First Amendment Coalition supports WCAX-TV’s effort to unseal a 2018 Superior Court decision and to reaffirm the public’s constitutional right to access judicial documents. Releasing the decision would help Vermonters better understand how the court interpreted the newly enacted reporter’s shield law and it would provide the transparency needed to oversee the state’s judicial system.”

“Concealing court opinions deprives the public an opportunity to learn why judges rule as they do,” the statement continued. “Such secrecy shouldn’t occur unless under the most consequential of circumstances. It is antithetical to a functioning democracy. With the decision kept secret, we’re all left to wonder why the Superior Court ruled as it did and how future cases may be affected.”

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