The 2018 General Assembly could produce a blueprint for giving lawyers, and the general public, unprecedented access to state court case records.
A court decision seen as a setback for open government has spawned at least five proposals to allow or encourage statewide search capability. One of those measures turned its sponsor into a lightning rod on the issue of whether the state’s open records law applies to the judiciary.
Some of the legislative proposals would leave it to the court to design a system for access, but other bills describe specific changes in clerks’ procedures and subscriber access to statewide case information.
One plan would even put civil case records online for subscriber viewing, along the lines of the PACER system allowing fee-based access to federal court documents.
Sen. Richard H. Stuart drew fire when he suggested an explicit exemption from the state Freedom of Information Act for the entire courts system. Senate Bill 727, besides exempting the court system from FOIA, provides that access to records in the custody of the judiciary would be governed by Supreme Court rules.
Stuart’s bill directs the Supreme Court to develop such access rules, but the bill did not make clear whether those rules would apply just to court case records or also to court administrative records.
Stuart’s bill – and his frequent absences from meetings of the state Freedom of Information Act Council, where he serves as vice-chair – brought condemnation from a Newport News daily. “The vice-chair doesn’t care,” was the Jan. 17 editorial headline in the Daily Press.
The question of whether Virginia’s FOIA applies to the court has lurked behind recent litigation over access to the court’s case information database. The high court used different reasoning to bar access to the database in a June decision. Nevertheless, lawyers for the court’s Office of Executive Secretary last month explicitly denied the office was subject to FOIA.
“FOIA does not apply to and is not enforceable against the Executive Secretary, the court administrator for the Commonwealth, and who serves at the pleasure of the Supreme Court of Virginia,” wrote lawyers for the OES in a Richmond pleading.
The statement was one of the defenses raised in a citizen’s bid to obtain court telephone billing records using FOIA. OES is represented in the case by lawyers from Sands Anderson in Richmond.
Stuart did not respond to VLW requests for comment on his FOIA bill. He told the Daily Press his bill was meant to respect the separation of powers.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, said a FOIA exemption for the court system would affect more than just access to court case records. She pointed to recent remarks of Chief Justice Donald W. Lemons who said the courts employ more than 3,000 people and handle about $750 million in annual financial transactions.
“That’s what frightens me,” Rhyne said, referring to the possible omission of public access to the administrative records. She said Stuart’s bill, as written, was “a little intimidating.”
Other legislation addresses concerns about privacy protection but sets a schedule for broad public access to court case records.
Two bills offered by Del. Gregory Habeeb, R-Salem, set a date of July, 2019, for rollout of publicly viewable online criminal case information and electronic filing and access for civil records.
Habeeb said he worked with both the executive secretary office and court clerks to develop his legislation, now before the House Courts Committee.
House Bill 1306 would require each circuit clerk to set up a system for electronic filing. In civil cases filed July 1, 2019 or after, clerks would maintain all non-confidential documents in electronic form and make them available through secure remote access. The documents would be searchable by name and case number across all circuit courts that use the OES electronic imaging system.
Access would be through a paid subscription service. Social security numbers and personal financial information would be protected under the plan.
House Bill 780 sets guidelines for requesting court records from a clerk or from the OES. It also directs the executive secretary to make available a publicly viewable online case information system of non-confidential information from criminal cases, including adult criminal cases in the juvenile and domestic relations courts.
The system would be searchable by defendant name across all participating courts and search results would be free of charge. The bill is assigned to a subcommittee chaired by Habeeb.
Del. Michael P. Mullin, D-Newport News, offered House Bill 4 to require the Supreme Court’s case management system to be open to the public for inspection, searchable by party name, criminal charge, filing type (for civil actions), hearing date and case number across all localities.
Del. Terry Kilgore proposed House Bill 664 to expand the definition of a “custodian” of public records to include public entities that maintain or possess a public record. There could be more than one custodian of a public record, the bill provides.
The Kilgore bill would directly address the Supreme Court’s ruling in The Daily Press LLC v. Office of the Executive Secretary that clerks are the “expressly designated custodians of court records.”