MONTPELIER — Media organizations around the state are applauding the state Supreme Court’s decision to side with a media company in a public records dispute.

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 recorded the shooting.

Washington County State’s Attorney Rory Thibault sought that footage through an inquest subpoena to determine whether 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 February 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 confidential. Gray Television appealed that decision to the state Supreme Court, saying the judge abused his discretion.

According to Supreme Court decision released Friday, the court viewed Judge VanBenthuysen’s decision as a public record and so it is subject to disclosure under the state’s rules for public access to court records. The court said, “there is no basis for sealing the record in this case.”

“This unanimous decision is an important victory not only for the Vermont media, but all Vermonters, who depend on journalists to be independent and not take sides in any kind of story,” Lisa Loomis, president of the Vermont Press Association and an editor and co-owner of the Valley Reporter in Waitsfield, said in a statement.” The 5-0 ruling is another ruling that upholds that the courts belong to the people and that court action should be subject to public review.

“It is essential for Vermonters to be able to understand the decisions that are being made on their behalf, whether it is in a courtroom, at the statehouse or at a municipal building.”

Michael Donoghue, first vice president of the New England First Amendment Coalition (NEFAC), said in an email Monday the coalition is “extremely pleased and delighted” with the court’s decision.

“This is the first challenge under the new law and NEFAC believes the high court properly ensured transparency in this important case. Vermont courts belong to the public and unfortunately the lawyers sometimes lose sight of that important fact. The Vermont Supreme Court understood the importance of ensuring the public’s understanding of what transpired in this case — even behind closed doors.

“When this country was founded, journalists were never intended to be an arm of law enforcement, but that is exactly what was happening in this subpoena case. Instead of law enforcement filming their own actions, they want journalists — reporters or photographers to turn over their work product — whether used or not. That has always been unacceptable. Journalists are not supposed to take sides,” Donoghue wrote.

VanBenthuysen’s eight-page decision, which is now public, talks about the investigation into the shooting. The decision said investigators talked to about 70 witnesses in the case, a little less than half of them saw the shooting itself and were mostly made up of law enforcement and first responders.

The case was the first dealing with the state’s shield law that was enacted in 2017. VanBenthuysen said in order to get around that law and, in this case, compel a news organization to hand over its footage, the state has to show the information in the footage could not be obtained through other means.

Investigators reported some officers at the scene had body cameras on them, but none caught the shooting. So they wanted WCAX’s footage because they had no other video footage of the shooting itself.

VanBenthuysen noted prosecutors in the case had not read any of the witness statements nor viewed any of the other videos they had in their possession. He said another news channel, WPTZ Channel 5, had also been at the scene and recorded footage, but police had not sought or seen what they had.

“These facts compel the conclusion that the State cannot successfully argue that it lacks alternatives to the Channel 3 video when the prosecutors themselves have no idea what is, in fact, in their own investigative materials. Since they do not at this time know what is in their investigative materials, have not viewed their own videos, and have not viewed the other TV station’s videos, they cannot argue either that they have engaged in due diligence or that Channel 3’s materials are the only source of information about what happened in the moments leading up to the shooting,” VanBenthuysen wrote.


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