¶ 41. concurring in part and dissenting in part. I
concur with the majority decision that 1 V.S.A. § 317(c)(5) exempts from public access executive branch records dealing with the detection and investigation of crime, even if the criminal investigation is complete. I think that result is required by the wording of the statute, irrespective of the policy arguments of the Herald. I also do not believe the statute, so construed, violates Article 6 of Chapter I of the Vermont Constitution. I add only that the exemption appears overbroad and prevents public oversight of how law enforcement officials do their job, even in instances where *377there is no reason for secrecy — such as protecting confidential sources of information. I urge the Legislature to reexamine the wording of the exemption.
¶ 42. I also agree that the proviso in § 317(c)(5) for “records relating to management and direction of a law enforcement agency” does not apply here, although for reasons different from the majority. The Herald’s assertion that the Legislature may have wanted transparency if the investigation of crime involves investigating the actions of a law enforcement agency or its employees is plausible. Thus, I do not agree with the majority’s conclusion that the Herald’s position would “swallow the exemption.” Ante, ¶ 28.
¶ 43. The fundamental difficulty that I have with the Herald’s argument is that it is based on an underlying understanding that the “law enforcement agency” in the language is the agency being investigated rather than the agency conducting the investigation. Probably the most obvious reason that this understanding is incorrect is that the proviso covers only records related to the management and direction of the agency. If the Herald’s construction were correct, the proviso would cover any criminal activity by the agency and be directed primarily at incidents of criminal activity rather than at the management and direction of the agency. Indeed, in this case, the Herald struggles to demonstrate how the criminal investigation was of the management of the police academy rather than the criminal activity of one or more employees.
¶ 44. I believe the proper construction is that the law enforcement agency in the proviso is the agency conducting the investigation. The proviso is needed because the exemption from public access is so broad. Since the purpose of a law enforcement agency is the investigation of crime, the wording of § 317(c)(5) threatens to make opaque all records of the agency — even those that do not involve investigation of particular cases. Thus, the proviso is needed to give public access to records that do not deal with the investigation of particular cases but instead with the overall management and direction of the agency. Portions of the legislative history of § 317(c)(5), provided by the Herald in its brief, demonstrate that the proviso was added at the urging of the Vermont Public Interest Research Group (VPIRG) exactly for this *378purpose.9 Since the records the Herald seeks do not relate to the management and direction of the VSP, the proviso does not apply.
¶ 45. This brings me to my main disagreement with the majority’s decision — its conclusion that the inquest records are not publicly accessible in this case. I particularly disagree with the majority’s rationale for its holding — “No party argued below, nor do they argue on appeal, that the inquest records are judicial branch records that must be disclosed under the Rules for Public Access to Court Records (PACR).” Ante, ¶ 31. This is a rationale that was not used by the superior court or raised by defendants. It exactly fits the majority’s characterization of this dissent — it is a “novel issue” “raised sua sponte” “without notice or opportunity for briefing and argument by the parties.” Ante, ¶ 31.
¶46. It is also wrong. In fact, the Herald argued both in this Court and in the superior court that the inquest records are judicial records that must be disclosed. The fact that they did not cite the Rules for Public Access to Court Records is irrelevant because those rules made no change in the law with respect to inquest records. I believe that we should decide this case by reviewing the rationale employed by the trial court and deciding this issue on the merits.
*379¶ 47. According to the affidavit of the assistant attorney general, the records at issue in this case include “an application for an inquest,” “other documents relating to the inquest,” and “materials obtained pursuant to the inquest.” The superior court denied access to these materials pursuant to 1 V.S.A. § 317(c)(1), the disclosure exemption that applies to “records which by law are designated confidential.” It ruled that the records are by law designated confidential by virtue of 13 V.S.A. § 5134, which provides:
[A] stenographer shall be sworn to keep secret all matters and things coming before the judge at such inquest. Such oath shall be in writing, and the stenographer shall not disclose testimony so taken by him or her except to the attorney general, state’s attorney and the judge holding the inquest. The minutes of the testimony so taken shall be the property of the state and the same or copy thereof shall not go out of the possession of such attorney general, state’s attorney or their successors except to an attorney appointed by the supreme court or superior court to act in the place of or assist a state’s attorney.
The stenographer described in the section is hired to “take and transcribe the testimony of the witnesses for the use of the state’s attorney.” Id. § 5133.
¶ 48. The majority opinion summarily dismisses the arguments concerning the inquest materials without describing what happened in this case or providing the information necessary for decision on the merits. In my opinion, three points are critical to the decision. Because the majority has chosen to reject the Herald’s arguments based on a lack of preservation, I start with a discussion of the procedural context for our discussion.
¶49. As stated by the majority, a reporter from the Herald sought records related to the death and possible criminal activity of David McMullen from the VSP and Attorney General’s office. Those agencies denied the request without disclosing that some of the records were inquest records. They disclosed the existence of the inquest records for the first time in their response to the Herald’s motion for summary judgment. The Herald immediately responded that the inquest materials were subject to different regulations. The Herald noted that the inquest materials were *380court records subject to 4 Y.S.A. § 693,10 the disclosure of which could not be controlled by the Attorney General. It noted that “the Attorney General has failed to provide even basic information to examine the docket for this inquest, including the name of the case, the location of the court and the docket number.” It concluded with a request that the superior court release the inquest records: “Thus, the Court should release the inquest materials because the statute, case law, history of the inquest, and facts all warrant disclosure in this case.” The defendants responded that inquest records are confidential by statute, 13 V.S.A. § 5134, and that, in any event, the criminal investigation exemption under the PRA, 1 V.S.A. § 317(c)(5), controls inquest records.
¶ 50. The superior court ruled that the inquest records are confidential under 13 V.S.A. § 5134, a ruling I believe is wrong as I discuss infra. The Herald then moved in this Court for us to order disclosure of the records. Defendants opposed the motion, in part, on the grounds that the Herald asked the trial court to disclose the records and is appealing the refusal of the court to do so. A Justice of this Court deferred the motion to the merits. The majority has denied this motion without any explanation.
¶ 51. In making its arguments to the superior court and this Court, the Herald has relied primarily on two decisions of this Court. The first is In re D.L., 164 Vt. 223, 230, 669 A.2d 1172, 1177 (1995), which holds that the inquest is an exercise of judicial power and, thus, necessarily that inquest records are judicial records. The second is In re Sealed Documents, 172 Vt. 152, 156, 772 A.2d 518, 522-23 (2001), which held that search warrant records are publicly accessible court records, subject to closure in specific instances, even though they are records that deal with the detection and investigation of crime. I agree that these cases control the decision before us and require that we hold that the inquest records are accessible. There is nothing novel in either the Herald’s argument or the proper analysis of it.
¶ 52. The second point involves the true nature of the vast majority of modern inquests. In denying access to the inquest *381records, the superior court relied upon the statute that makes confidential the record of the testimonial inquest proceeding taken by a stenographer. In fact, the testimonial inquest procedure is, for the most part, a rarely used historical artifact, left over from the days when the prosecutor did not have the evidence-gathering tools that exist today. There have been few, if any, inquest proceedings in which testimony was taken in years. Instead, the inquest has been turned into a proceeding in which the court issues investigatory subpoenas for documents or evidence sought by law enforcement officers, with no in-court proceeding and no testimony. The documents or evidence are then provided directly to the law enforcement officers who use them in their investigation. The actual process is described in our recent decisions in State v. Simmons, 2011 VT 69, ¶¶ 3-4, 190 Vt. 141, 27 A.3d 1065, and In re Inquest Subpoena (WCAX), 2005 VT 103, ¶¶ 2-4, 179 Vt. 12, 890 A.2d 1240. It is telling that proceedings and documents in the latter case were entirely publicly accessible — directly contrary to the superior court decision in this case.
¶ 53. More importantly, the testimonial inquest procedure does not describe this case. The inquest process in this case consists in its entirety of four documents. First, a prosecutor and police officer applied for an inquest on a standard form, District Court Form 454, printed by the Judiciary and made available to law enforcement officers. The form provides both the request for the inquest and the court’s approval. Second, the police officer attached an affidavit to the request, specifying the grounds for the request. Third, the prosecutor and law enforcement officers filed a subpoena for the judge to sign, and the judge signed it. In a case like this one, the subpoena specifies the holder of the records and the records and information subject to the subpoena and provides a date by which the records and information are to be brought to court. It states, however, that the recipient of the subpoena can comply by sending the information to a specified law enforcement officer or prosecutor. The order for an inquest specifies no date for a hearing and does not appoint a stenographer. The order and subpoena are faxed to the keeper of the records. Finally, the entity subject to the subpoena complied by fax. The response did not go to the court.
¶ 54. It is obvious that the investigatory subpoena is being used in cases where the record keeper will not release the record or information without a court order. Once the court order is *382forthcoming, there is no need for the record keeper to deal with the court, especially given the invitation to provide the record or information directly to the law enforcement officer or prosecutor. That occurred in this case.
¶ 55. The essence of an inquest is described in 13 V.S.A. § 5132: “A judge may issue necessary process to bring witnesses before him or her to give evidence in any matter there under investigation. The witnesses shall be sworn . . . .” In the current use of the inquest statute, there will be no witnesses and no witnesses will be sworn. There will be no “testimony of the witnesses” and no stenographer. See id. § 5133.11 The State is taking the title of the procedure — “inquest” — and using it for a different purpose and procedure.
¶ 56. In many ways, the inquest procedure, as it is currently used, is most akin to a search warrant because it is authorizing the gathering of evidence involuntarily from a person, including a corporation or other legal entity. We noted this identity of purpose in In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 11 n.1. There is no policy reason to distinguish a search warrant and the records used to obtain the warrant from an inquest investigatory subpoena and the records used to obtain the subpoena.
¶ 57. My third preliminary point is that the inquest is “viewed as the exercise of judicial power.” In re D.L., 164 Vt. at 230, 669 A.2d at 1177. Again, we likened the judicial role in an inquest to the issuance of a search warrant, id. at 231, 669 A.2d at 1178, and concluded “that the [inquest] statute ‘authorizes the courts to perform a function so closely connected with and so far incidental to strictly judicial proceedings that the courts in obeying the *383statute would not be exercising executive or nonjudicial powers,’ ” id. at 233, 669 A.2d at 1179 (quoting Lachapelle v. United Shoe Mach. Corp., 61 N.E.2d 8, 10 (Mass. 1945)). Thus, despite the investigatory purpose, an inquest is a judicial proceeding and inquest records are court records.
¶ 58. Like the issuance of a search warrant, the issuance of an investigatory subpoena is both a power critical to law enforcement and an intrusion into the basic rights of citizens. It is one of the greatest powers of the judiciary and, because of the invasion of citizens’ privacy interests, a power that must be carefully regulated to ensure it is not misused. There are reasons particularly for oversight of the subpoena power. Unlike the search warrant power, the constitutional limitations on the subpoena power are very limited and more unclear. See generally 2 W. LaFave, Search & Seizure § 4.13(a) (4th ed. 2004). We held in D.L. that a judge can refuse to grant a request for an inquest, which necessarily includes the power to refuse to grant a request for a subpoena, but we did not establish standards for exercise of that discretion. 164 Vt. at 234, 669 A.2d at 1179-80. Thus, subject to very limited constitutional restrictions, a judge may decide to grant a subpoena request, or not, with no specification of reasons and with limited — or no — specification of grounds.
¶ 59. Three out of four of the records withheld in this case are judicial branch records because they are in the control of the judiciary and involve a judicial action and the basis for that action. This is the holding of State v. Tallman, 148 Vt. at 472-73, 537 A.2d at 426-27, a case in which the State also argued that the exemption of 1 V.S.A. § 317(c)(5) followed criminal investigation records into the court. We held in Tallman that affidavits of probable cause were executive branch records controlled by § 317(c)(5) “[p]rior to inspection by a court.” Id. at 472, 537 A.2d at 426. After review by a court, access was controlled by Title 4, which made them publicly accessible.12 Tollman was followed with respect to search warrant records in In re Sealed Documents, 172 Vt. at 158-59, 772 A.2d at 524-25. The rule of Tallman and In re Sealed Documents is now codified in PACR 3(j).13
*384¶ 60. The three judicial records are the application for the inquest, the affidavit, and the subpoena. The defendants in this case have the identical records, either copies of the originals or the originals. The fourth record containing the information specified in the subpoena is not a judicial branch record because it never has been in the possession of the judiciary and was not the basis for judicial action. I agree that this record is governed by the PRA and is not subject to public access under 1 V.S.A. § 317(c)(5).
¶ 61. With the above three points in mind, I think it clear that there is no statutory bar to public access to the inquest records at issue in this case. While the statute read broadly provides that the inquest testimonial14 hearing is secret, and public access is prohibited, nothing in its language suggests that documents created in connection with a so-called “inquest” that never will produce a testimonial hearing are covered by the statute. In this modern inquest, there is no evidentiary hearing and no stenographer. Our case law has interpreted the statutes to make the evidentiary hearing secret, see Alexander, 130 Vt. at 60, 286 A.2d at 265, but we have never held secret anything beyond the evidentiary hearing and its content. It is an unjustified expansion of the statute to hold that its coverage is greater; nothing in the statute supports that expansion.
¶ 62. There is one other ground for the majority opinion, and it requires special examination because I believe that it is directly contrary to how we should treat access-to-public-records appeals. The majority has apparently ruled that the Herald loses, in part, because it failed to request the inquest records from a superior court clerk. The public records request in this case was made in July 2010, nearly two years ago. Defendants did not disclose in *385their response to the request that part of the records being sought were inquest records. They disclosed the full nature of the records only in the litigation in the trial court in response to the Herald’s motion for summary judgment. The Herald immediately responded with a request that the superior judge, before whom the Herald was appearing, release the judicial records, noting that it did not know where and when the inquest occurred because the defendants did not disclose that information. The Herald has renewed that motion here.
¶ 63. The law specifies no venue for inquest proceedings. The inquest here was requested by an assistant attorney general based on the affidavit of a state police officer. The request could have been made to any superior court, including in Washington County. As it happened, the inquest request was made in Rutland County, but the Herald had no way to determine this. Indeed, it appears that the Herald is learning this for the first time by reading this dissent. Like search warrants, there is no way to determine where inquest records exist, if at all. The inability to locate search warrant records has been a subject of recent controversy, with a bill to require a searchable database currently pending in the Vermont Senate. See S.138, 2011-2012 Gen. Assem., Adj. Sess. (Vt. 2012). The exact same problem exists with respect to inquest records.
¶ 64. Whether we are acting under the PRA or PACR, government records are presumed accessible unless the custodian can show that they come within an exemption. It is the custodian’s burden to identify the exemption, not the requester’s burden. The processing of a public records request is to be “expedited in every way.” 1 V.S.A. § 319(b); see also PACR 6(h) (directing that appeal of denial of access to court records be “decided as soon as possible”).
¶ 65. In the face of the clear deviation from the intended expeditious process, the majority has introduced a new technicality to deny access to records — the record must be requested from a superior court clerk, apparently the clerk of the county where the record resides. By this decision, this Court is creating an elaborate hide-and-seek game that relies upon artificial barriers to deny access without ever reaching the merits. Thus, after eighteen months of trying, the Herald is told that its request for the inquest records will not be honored because it failed to meet a procedural requirement raised for the first time by this Court *386and with which it could not comply because it was denied the information to do so.
¶ 66. The issue of access to the inquest records is wholly one of law that has been decided by the superior court in this case and has been briefed and argued in this Court. The majority’s objection is a pure technicality; nothing would be gained by a decision of the clerk for Rutland Unit or of the superior judge sitting in Rutland County. None of the parties raised the objection of the majority. If anything, it is a matter of venue that can be, and was, waived. By separate motion, the Herald has asked that we order the release of the inquest records. We should grant that motion or, in any case, decide it on the merits and not a technicality.
¶ 67. There is another reason why it is inappropriate for this Court to dismiss the inquest record issue without resolving it. As the majority states, this case started as a request to defendants to view certain public records they possess. Those records include the three inquest-related records at issue. Defendants have either copies or originals of those records. Nothing in the PRA or PACR distinguishes between originals and copies. Nor is the status of the holder of the record determinative of the right to access the record under either of these governing legal regimes. Thus, the law governing access is the same whether the Herald requests the records from a superior court clerk or the Attorney General or the Vermont State Police. These are judicial branch records governed by 4 V.S.A. § 652(4) and PACR. Thus, the Herald can request these records from defendants and has the same right of public access as if the request were made to the superior court.
¶ 68. The idea that the accessibility of a record depends on from whom it is requested is at odds with both common sense and the PRA, which explicitly countenances “consultation” between agencies in responding to public records requests. See 1 V.S.A. § 318(a)(5)(C). The existence of this provision in the PRA implies a legislative intent that agencies not summarily deny requests for documents in their possession on the grounds that they originated in another agency. Considering an analogous consultation provision in the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, federal courts have held that refusing a request and instead referring the applicant to the original source of the documents constitutes improper withholding of documents. See McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983) (“[An agency] cannot *387simply refuse to act on the ground that the documents originated elsewhere.”); Founding Church of Scientology of Washington, D.C., Inc. v. Bell, 603 F.2d 945, 953 n.54 (D.C. Cir. 1979) (“Under FOIA an agency may take ten extra days in responding to a document request when it must consult with an originating agency on whether a requested document should be released. But the agency that received the initial FOIA request retains responsibility for producing the document.” (citation omitted)); Davis v. FBI, 770 F. Supp. 2d 93, 104 n.8 (D.D.C. 2011) (“Even if such records may be found in a court or another agency, the agency receiving a FOIA request is obligated to produce any responsive records that are in its custody and control at the time of the request”). In this case, there was not even a referral; the request was flatly denied.
¶ 69. We should hold that the Herald preserved its position that the judiciary release the inquest records and defendants waived any objection based on the location of the court to which the request was made. Alternatively, we should hold that the Herald has the same right of public access from defendants as from the judiciary. Once we reach the merits, we should release the three inquest records that are judicial records.
¶ 70. I respectfully dissent from the majority decision with respect to the inquest records.
Initial drafts of § 317(c)(5) did not include a proviso related to management and direction of a law enforcement agency. The addition of such a proviso was originally suggested by a representative from VPIRG at a hearing to discuss a draft of the PRA held before the House Committee on General and Military Affairs. In explaining his suggestion to add the proviso language, the VPIRG representative stated that:
Section 317(5) is too broad. Records dealing with the detection and investigation of crime can include reports by a town board of selectmen on the conduct of its police chief, simple records of the number of arrests made in a year and other similar statistical information. I believe that the intent of this section is to exempt from public view only actual investigatory files. The intent would be better served if the following provision were added to the end of the subsection: “and provided that records relating to the management, direction, or efficiency of a police force shall be considered as public record.”
The specific management and direction proviso language present in the current PRA was recommended by a member of the Committee on General and Military Affairs and was added to the House draft of the PRA by amendment on March 28, 1975, approximately one month after the VPIRG representative made his proviso suggestion.
The Legislature repealed 4 V.S.A. § 693 on July 1, 2010, because it was unnecessary due to the reorganization of the judicial system to eliminate district courts. See 2009, No. 154 (Adj. Sess.), § 238(a)(1). The largely similar, presently applicable language for courts lies in 4 V.S.A. § 652(4). In State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 426 (1987), we construed § 652(4) and § 693 to have the same meaning.
I have serious questions about the validity of the current practice as an inquest. The Legislature has given prosecutors investigatory subpoena power in specific types of cases, see 9 V.S.A. § 2460 (consumer fraud), specifically describing the procedure. The Legislature would know how to create such a procedure here. Nothing in the language of the inquest statutes indicates that the Legislature intended this use of the inquest procedure. We have held that “the statutory authority under which inquests are conducted is to be strictly construed, and will not be regarded as including use for any purpose not clearly and intelligibly described in the statutory language so as to be manifestly within the legislative intent.” In re Certain Inquest Minutes, 137 Vt. 595, 596, 409 A.2d 593, 593 (1979) (per curiam); see also State v. Alexander, 130 Vt. 54, 60, 286 A.2d 262, 265 (1971) (“[Statutes will not be regarded as including anything not clearly and intelligibly described in the words thereof . . . .”). It is hard to see how the current practice meets this standard. I need not come to a definitive position on this issue because this case involves access to the inquest records, and not the validity of the inquest.
Tallman concerned the now-repealed § 693, see supra, n.10, but its holding is, by its own terms, just as applicable to the presently governing § 652(4).
It is apparently significant to the majority that the Herald never cited PACR. I fail to see the significance of this omission. As the text says, the applicable rule *384simply adopted without change the holding of Tallman and In re Sealed Documents. See Reporter’s Notes to PACR 4 (citing State v. Tallman); Reporter’s Notes to 2001 Amendment to PACR 6 (indicating that the 2001 amendment is to implement In re Sealed Documents).
I am using the term testimonial here to mean the hearing in which testimony about a possible crime is taken, alone or in connection with other evidence. As In re Inquest Subpoena (WCAX), 2005 VT 103, demonstrates, another kind of hearing is possible, one in which the entity subject to the subpoena contests the subpoena. It is unclear whether the statutes regulate public access to the record of that kind of proceeding, and we do not have to reach that point because there was no subpoena contest in this case. I find it significant, however, that the hearing and record in In re Inquest Subpoena (WCAX) were entirely open to the public.