Facing a handful of legislative plans for public access to court records, the Supreme Court of Virginia says, in essence, “Leave it to us.”
In a Jan. 23 press release, the court said it will promulgate a court rule concerning public access to judiciary records on or before Dec. 1. The court also said it is committed to working with clerks, legislators, attorneys and other interested parties to develop statewide access to online case information by July 1 of next year.
At least one legislator said he welcomed the rare public pronouncement from the court on an issue under debate at the legislature. The court’s statement appeared timed to deflect legislative directives on access to courthouse records. At least five bills at the Capitol seek to remove barriers to public access through various means.
That legislative initiative may not have been entirely welcome on the other side of Ninth Street. The Supreme Court opened its statement with a pronouncement about the separation of powers: “The Supreme Court of Virginia is not an agency of the executive or legislative branches. It is responsible for operation of the judiciary, a separate and independent branch of government,” the statement said.
Other states have allowed their judicial branches to develop separate court rules for records access, the statement said. The court also noted that the federal Freedom of Information Act specifically excludes the federal courts.
Parallels seen with legislation
Regardless of the constitutional tension, a lawmaker who offered detailed proposals for amending court filing procedures and public access said the court seemed to be pursuing similar goals. “I very much appreciate the court is publicly disclosing its interest in going down this path,” said Del. Greg Habeeb, R-Salem.
Habeeb said he worked with court staff and independent circuit court clerks to develop two proposals for records access. One – with a duplicate bill offered by Sen. Mark Obenshain, R-Harrisonburg – would provide for online lookup of criminal case information. The other would set up a statewide electronic filing system and allow subscription-based access to civil documents, much like the federal PACER system. Both use a target date of July 1, 2019, one of the dates proposed by the court in its public statement.
“I think the fact that the court is publicly endorsing that is a great thing,” Habeeb said. “It’s good for the public to see that the legislature isn’t going on top of the courts and imposing legislation on them.”
It was not clear whether the court’s announcement would lead access advocates to set their bills aside for the session.
“In my opinion it is a conversation starter, not the final word,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government.
Different treatment for different records
The court’s press release raised the need for distinctions among court documents to preserve “reasonable and responsible transparency.” An access plan should recognize confidentiality for judges’ notes and records and communications with law clerks and other staff, the court statement said.
“This confidentiality of communications among judges and court staff is necessary to ensure thorough and candid consideration of all relevant issues being considered by the judges,” the court said.
“Under a court rule, accessibility to judicial records would be provided in a manner that is transparent and consistent with existing law and the Constitution of Virginia,” the statement said. “Financial records and case statistics are currently made available to the public, with much of that information available online on the court system’s website, and these records will continue to be made available to the public,” the statement said.
“The court’s statement rightly points out that judicial records are made up of several different categories of records,” Rhyne said. “I haven’t heard anyone suggest that judges’ notes be made accessible, but I also know that many of the stories and editorials haven’t been particularly nuanced about the various categories and how FOIA does or does not already touch them,” she said.
State Sen. Richard H. Stuart – a Northern Neck lawyer and a member of the state Committee on District Courts – noted that some case records may deserve special protection from public view, including juvenile cases, divorces and adoptions.
“The court is better equipped to deal with that than the General Assembly,” he said.
Fairfax County Circuit Court clerk John T. Frey agreed there are unique issues. “We ask private citizens to come into a public forum to settle their disputes. This makes court records different from many types of government records,” he said.
Issues of privacy, identity theft and false allegations in divorce cases arise when courts consider providing businesses and individuals with aggregated bulk data contained in court records, Frey said.
“What happens when the bulk criminal data is released to the public, and later the criminal defendant is found not guilty? The charges will be in databases maintained by the private sector. At that point, an expungement may not protect the rights of an innocent person because background investigators may be able to find the information in non-court databases,” Frey said.
Courts also need to be protected from information requests that require court staff to organize or prepare data, Frey added. “If courts provide aggregated bulk data to the press, they will need to provide aggregated bulk data requests to other businesses, and individuals. Local courts do not have the staff or financial resources to conduct research and aggregate data,” Frey said.
Who makes court transparency rules?
Whether Virginia’s Freedom of Information Act applies to the courts was already an issue at the Assembly. Stuart stirred controversy with a bill that would expressly declare that the courts are not subject to FOIA.
“We’ve got three co-equal branches of government. The Supreme Court makes the rules of court in nearly every other instance. They ought to be allowed to make rules on access to records,” Stuart said Jan. 18.
Perhaps not, said Frey. He acknowledged the court made “excellent points” about separation of powers.
“However, I think that the current system works well, in most cases. Court records sealed by law, or court order, are not available to the public. All other court records are open to inspection and copying pursuant to § 17.1-208,” Frey said. Court records covered by that statute are those exempted from FOIA, he said.
But Frey said the courts may not be in the best position to construct a pipeline for government transparency.
“The Supreme Court of Virginia is not accountable to the public. The executive secretary’s office, which would develop the rules for access to court records, is an unelected bureaucracy,” Frey said. “There needs to be accountability.”
“The current system, whereby the General Assembly determines public policy affecting open court and government records has accountability. The General Assembly members are directly accountable to the citizens since they are elected. I may not like the decision the General Assembly ultimately reaches, but we get to vote on their decision in two years,” Frey said.
Wide participation urged
Rhyne – the open government advocate – said the court’s announcement was too vague to offer comfort on all the issues involved. There was no language about any inclusive dialog.
“Access advocates, the press, citizens, even privacy and civil liberties advocates are not named as being necessary stakeholders – like clerks, legislators and attorneys are – and are instead lumped into ‘other interested parties,’” Rhyne said. “Representatives of those groups absolutely have to be part of any process for crafting access rules in order for there to be real confidence.”
Nonetheless, “I do think it’s an important opening,” she said of the court’s statement.