Plaintiff appeals from a dismissal of his action requesting that defendants produce certain public records, pursuant to Vermont’s Access to Public Records Act, 1 V.S.A. §§ 315-320. We reverse.
This action arose as a result of defendants’ failure to produce public documents relating to the sex offender treatment program run by the Department of Corrections. Plaintiff alleges noncompliance with 1 V.S.A. § 318, and defendants deny the allegations. After some maneuvering, some documents were disclosed to plaintiff. Plaintiff, however, was not satisfied with the disclosure because he believed other documents relating to the request existed. Plaintiff filed interrogatories and other discovery, but received no response from defendants. Plaintiff then filed a motion for partial summary judgment and an affidavit, claiming that inconsistent statements by the opposing counsel had led him to believe that defendants’ response to his document request was inadequate. Defendants filed no opposing affidavits.
The trial court held a hearing on the motion, at which defendants, through their counsel, claimed that plaintiff’s first request, relating to *596documents showing a waiver of prosecution by the Attorney General, had been fully satisfied and that no further documents existed. The court accepted defense counsel’s oral representations in open court as true and resolved a disputed question of fact, namely, that other documents relating to a waiver of prosecution did not exist. The court then ordered defendants to satisfy the rest of plaintiff’s request within twenty days, and further ordered that plaintiff had until January 1,1993, to show cause why his action should not be dismissed. In response, plaintiff asserted his right to receive answers to interrogatories to prove his case, and maintained the burden was on defendants to produce, not on plaintiff to show cause. The request to compel discovery was not acted on, and when plaintiff failed to show cause, the action was dismissed.
Plaintiff raises a number of errors on appeal, which may be consolidated into two issues. The first is whether the action should have been dismissed, and the second is whether the court erred in refusing to compel defendants to answer discovery.
The action was dismissed prematurely. The parties were before the court on plaintiff’s motion for partial summary judgment. Summary judgment is appropriate only when the moving party establishes there is no genuine issue as to any material fact. V.R.C.P. 56(c); Kelly v. Town of Barnard, 155 Vt. 296, 299, 583 A.2d 614, 616 (1990). Denial of the moving party’s pleadings is an insufficient response to a Rule 56 motion. V.R.C.P. 56(e). The nonmoving party, however, may establish a genuine issue of material fact by offering affidavits, made upon personal knowledge by an affiant who is competent to testify as to the matters stated. Id. The trial court may also take oral testimony as to whether there is a genuine issue of material fact, although it should do so “sparingly and with great care,” because the proceeding under Rule 56 should not become a preliminary trial. Bingham v. Tenney, 154 Vt. 96, 101, 573 A.2d 1185, 1187 (1990).
Here, the trial court committed two errors on the motion for partial summary judgment. First, it improperly accepted opposing counsel’s oral representations in open court as a proper response to the summary judgment motion. Second, it used this “oral testimony” for the purpose of proving the ultimate fact in issue against the moving party. Assuming, arguendo, that representations of counsel could be accepted as evidence, the most they demonstrated here was that there was a genuine issue of material fact, i.e., that the parties disputed whether defendants were withholding documents.
The court, in effect, turned the partial summary judgment hearing into a hearing on the merits. Needless to say, plaintiff had no notice of this potential disposition. More importantly, the court improperly shifted the burden of proof to plaintiff to show cause why his action should not be dismissed. In a public records act appeal to superior court, the burden is on the agency to sustain its action. Finberg v. Murnane, 159 Vt. 431, 434, 623 A.2d 979, 981 (1992). The dismissal order was based on the underlying assumption that, by the show-cause deadline, plaintiff would have received all the documents to which he was entitled. He could then return to court and complain if the remaining documents ordered by the court were not produced. This was a meaningless opportunity to plaintiff for two reasons. First, the court had already resolved an essential question of fact against him and closed the issue as to the let*597ter of waiver, and second, the court did not order defendants to respond to discovery. Without discovery responses, plaintiff had no ability to judge whether he was receiving all documents to which he was entitled.
Our holding does not assume that any lawyer in the case lied to the trial court. That is not the issue. Nor is the issue whether plaintiff was actually entitled to prevail on his motion for partial summary judgment. The issue is whether the case should have been dismissed in the context of plaintiff’s motion. Moreover, we emphasize, under Finberg, that complaints to enforce disclosure of public records are civil actions in which the plaintiff is entitled to discovery and the full application of the civil rules.
Reversed and remanded for further proceedings not inconsistent with this opinion.