Lovell v. Morristown

VERMONT SUPERIOR COURT CIVIL DIVISION
Lamoille Unit Case No. 25-CV-01083
154 Main Street
Hyde Park VT 05655
802-888-3887
www.vermontjudiciary.org
Kathleen Lovell v. Town of Morristown

ENTRY REGARDING MOTIONS
Title: Defendant’s motion for summary judgment; Plaintiff’s cross-motion for summary
judgment; Plaintiff’s additional motion for summary judgment; Plaintiff’s
motions pursuant to Rule 56(h) (Motions: 1; 2; 5; 6; 7)
Filer: Kevin Lumpkin; Kathleen Lovell
Filed Date: August 01, 2025; August 29, 2025; October 15, 2025; October 22, 2025

In this case, plaintiff Kathleen Lovell appeals the denial of a public records request
by the Town of Morristown. Pending before the court are the parties’ opposing summary
judgment and related motions. For the reasons set forth below, the motions for summary
judgment are granted in part and denied in part, and plaintiff’s other pending motions are
denied.
Background
Following an incident that occurred in the Town on April 20, 2023, the Lamoille
County State’s Attorney charged plaintiff’s son Henry Lovell with criminal charges
including attempted murder, aggravated assault with a deadly weapon, kidnapping, and
first-degree aggravated domestic assault. Mr. Lovell’s case is awaiting trial and currently
set for jury draw on May 11, 2026. See State of Vermont v. Henry Lovell, No. 23-CR-3835.
In late February 2025, plaintiff requested public records from the Town relating to
the April 20, 2023 incident including electronic copies of “all probable cause and
supplemental affidavits,” “all dispatch narratives,” “all body worn camera video footage,”
and “any documentation of [plaintiff’s] image or voice or statements from paperwork or
interviews or interrogations or anything at all, in April and May 2023.” Attachment to
Compl. ¶¶ 2-3. The State’s Attorney has indicated these documents are expected to be
evidence in Mr. Lovell’s upcoming trial.
After requesting an extension to respond, the Town denied the requests on March 10
because they pertained to a pending criminal case. The Town cited the Rules for Public
Access to Court Records in its denial. After plaintiff appealed to the Town’s designated
“head of agency” under 1 V.S.A. § 318(c)(1), the Town again denied the request and cited
the Access to Public Records Act, specifically 1 V.S.A. § 317(c)(5)(A), which contains an
exemption for “[r]ecords dealing with the detection and investigation of crime, but only to
1
the extent that the production of such records . . . would deprive a person of a right to a fair
trial or an impartial adjudication.” The Town explained that Mr. Lovell’s criminal case was
expected to go to trial in the coming months and that the State’s Attorney had advised the
Town that public disclosure of the requested materials could taint the jury pool and
prejudice either Mr. Lovell’s or the State’s ability to present the case to a jury.
Plaintiff then filed this action under 1 V.S.A. § 319 to compel the Town to produce
the requested records. Both parties have moved for summary judgment. Plaintiff has also
moved the court to declare that the Town’s supporting declarations were submitted in bad
faith under Vermont Rule of Civil Procedure 56(h).
Analysis
“Summary judgment is appropriate ‘if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”
Hier v. Slate Valley Unified Sch. Dist., 2025 VT 2, ¶ 8 (quoting V.R.C.P. 56(a)). The initial
burden falls on the moving party to show an absence of dispute of material fact. Couture v.
Trainer, 2017 VT 73, ¶ 9, 205 Vt. 319 (citing V.R.C.P. 56(a)).
Under the Public Records Act, any person may “inspect or copy any public record of
a public agency.” 1 V.S.A. § 316. The Town is a “public agency” under the Act. See 1 V.S.A. §
317(a)(2) (defining “public agency” to include “any political subdivision of the State”).
Unless an exception applies, “the custodian of a public record shall,” upon request, “produce
the record for inspection or a copy of the record.” 1 V.S.A. § 318(a)(1), (b).
As noted above, the Town relies on the exemption for “[r]ecords dealing with the
detection and investigation of crime, but only to the extent that the production of such
records . . . would deprive a person of a right to a fair trial or an impartial adjudication.” 1
V.S.A. § 318(c)(5)(A). The Vermont Supreme Court has not construed this provision as
currently enacted. The court accordingly looks to federal case law construing the analogous
provision under the Freedom of Information Act. See 5 U.S.C. § 552(b)(7)(B) (providing
exemption from FOIA for “records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement records or information . .
. would deprive a person of a right to a fair trial or an impartial adjudication”); 1 V.S.A. §
317(c)(5)(C) (“It is the intent of the General Assembly that in construing subdivision (A) of
this subdivision (5), the courts of this State will be guided by the construction of similar
terms contained in 5 U.S.C. § 552(b)(7) (Freedom of Information Act) by the courts of the
United States.”).
Under the federal standard, which the court applies here, the withholding agency
must show that a trial is “pending or truly imminent,” and that it is “more probable than
not that disclosure of the material sought would seriously interfere with the fairness of
those proceedings.” See N.Y. Times Co. v. U.S. Dep’t of Justice, No. 16 Civ. 6120, 2017 WL
4712636 (S.D.N.Y. Sept. 29, 2017) (citing Wash. Post Co. v. U.S. Dep’t of Justice, 863 F.2d
2
96, 102 (D.C. Cir. 1988)). The Town has met that burden. Mr. Lovell faces serious criminal
charges, which remain pending. His case is scheduled to go to trial in May. The Town has
shown, without contradiction, that the State intends to rely on the requested records at
trial. The court concludes based on the summary judgment record that it is more likely
than not that pretrial disclosure of the requested materials could taint the relatively small
jury pool in Lamoille County and prejudice the parties’ ability to present their case to an
impartial jury. 1
But the exemption on which the Town relies is limited by 1 V.S.A. § 317(b)(5)(B),
which provides that “[n]otwithstanding subdivision (A) . . . records reflecting the initial
arrest of a person . . . and records reflecting the charge of a person shall be public.” This
provision unambiguously carves out from the Town’s cited exemption records that merely
reflect Mr. Lovell’s initial arrest and subsequent criminal charge. These records must be
made public. It is the Town’s obligation to identify and disclose what records are covered by
this carve-out in the first instance but the required disclosures include, at minimum, any
probable cause affidavit in Mr. Lovell’s case. See Oblak v. Univ. of Vermont Police Servs.,
2019 VT 56, ¶ 16, 210 Vt. 550 (“[T]he public has a right to access the affidavit of probable
cause because it is an agency record that falls outside of the PACR Rules and does not
qualify as confidential under the PRA.”).
The court has reviewed plaintiff’s motions concerning the affidavits of State’s
Attorney Gerhardt and Chief Luneau and discerns no basis to conclude they were made in
bad faith within the meaning of Rule 56(h). See Jimenez v. City of New York, 666 F. App’x
39, 41 (2d Cir. 2016) (“Bad faith may be found when an attorney’s actions are so completely
without merit . . . that they must have been undertaken for some improper purpose.”).
Order
The motions for summary judgment are GRANTED IN PART AND DENIED IN
PART as set forth above (Motions 1, 2, 5). Plaintiff’s motions under Rule 56(h) are DENIED
(Motions 6, 7).

Electronically signed on: 1/13/2026 pursuant to V.R.E.F. 9(d)

_______________________________________
Benjamin D. Battles
Superior Court Judge

1 The court declines the parties’ invitation to opine how plaintiff might use the records if disclosed.

“Motive is irrelevant to plaintiff's access right.” Finberg v. Murnane, 159 Vt. 431, 437 (1992).

3