The General Assembly is headed for a showdown between the forces of light and darkness.
No, we’re not referring to the bills dealing with how utilities are regulated — although for those who are suspicious of Dominion Energy’s power in Richmond, it might seem to them that way. Instead, we refer to several conflicting bills that deal with how accessible court records should be.
Spoiler alert: We think the General Assembly should come down on the side of public access, although that’s not how the legislature’s mood appears at the moment.
First, let’s set the stage: Court records in Virginia are open. Unless they involve juveniles or have been specifically sealed, you can go to your local courthouse and look them up. You can also look up certain court records online — although you have to search them one locality at a time and then only one case at a time.
You can’t do a single statewide search, which makes it difficult to make comparisons between similar types of cases across the state. Do some localities have stricter or more lenient outcomes than others? It might be useful to know, right? That might be the sort of thing that both liberals and conservatives might like to know, although perhaps for different reasons.
Here’s where the curiosity arises: All that data is stored in a single statewide database, administered by the administrative arm of the Supreme Court. However, the court has taken the position that such data belongs to the individual clerk of court offices around the state. When David Ress, a reporter for the Daily Press in Newport News, tried to obtain it a few years ago, some clerk’s offices readily released their databases — but some refused, often adamantly so.
Thus, we have the essential question: How accessible should these records be?
An analogy: Right now we have a system that is akin to having all the scores for the history of baseball in a single database, but we can only look them up one at-bat at a time — we can’t easily figure out who won the game, or who’s in first place, much less who won the World Series. This not only makes public scrutiny difficult, it’s also just plain antiquated. Here’s an example of how antiquated it is: Even the federal government has a more technologically up-to-date system.
Two legislators arrived in Richmond this General Assembly with a proposed fix. Del. Greg Habeeb, R-Salem, and state Sen. Mark Obenshain, R-Rockingham County, working in conjunction with the Supreme Court’s administrative arm, introduced legislation that would accomplish two things.
First, their bills made clear that non-confidential court records must be made available to the public upon request. That’s always been the understanding for paper records, but, as we’ve seen, some court clerks object to releasing them digitally.
Secondly, their bills require that the Court’s administrative arm set up a statewide online database by July 1, 2019. That’s not as radical as it sounds. The federal court system already has such a database, called Public Access to Court Electronic Records or PACER for short. It dates to 1988, when Ronald Reagan was president and William Rehnquist was chief justice of the U.S. Supreme Court. The New York Times has called the federal system’s operating system “cumbersome, arcane and not free” and the libertarian magazine Reason has called it “archaic as a barrister’s wig.” All that may be true, but at least it’s there, so if the federal system is archaic, imagine how primitive Virginia’s system must seem.
Not long after the General Assembly convened, the Virginia Supreme Court took the unusual step of announcing that it planned to do exactly what the Habeeb and Obenshain bills called for. The court pledged to develop its own rule dealing with public access by Dec. 1 and to work with various parties to develop an online database by July 1, 2019. This was implictly an endorsement of their bills and a remarkable step forward for transparency in government.
All that sounds good, right? Still, a rule is a rule and not a law, so the Habeeb and Obenshain bills have continued to move forward. Habeeb’s now sits before the House Appropriations Committee while Obenshain’s is in Senate Finance. Therein lies the rub: The price of developing such a database has been estimated at $1.3 million and there’s no money in the state budget for developing one. Even if the state declares its intention to create such a database, but doesn’t fund it this year, that would still be a step forward.
Coming down the pike from the opposite direction, though, is a bill by state Sen. Richard Stuart, R-Stafford County. It would exempt the entire judicial system from the state’s Freedom of Information Act. Stuart says this bill would not affect public access to court records themselves — but it certainly would mean the public couldn’t cite FOIA to gain access to them, if denied. Stuart says he’s mostly concerned about judge’s notes and early drafts of judicial opinions, which, to our knowledge, no one has ever tried to use FOIA to obtain. Stuart also advances a separation-of-powers argument —the courts are a separate branch of government so the legislature shouldn’t make rules to govern them. This reasoning comes from a member of the deliberative body possessing the constitutionally granted power to elect judges.
Stuart’s proposal would pull a veil of darkness over one-third of state government. Wise County Clerk of Court Jack Kennedy advances the novel argument that it’s an anti-innovation bill. Kennedy has been a pioneer of providing digital access to court records. He says he’s used the Freedom of Information Act to determine that using certain paper records was “costing the state hundreds of thousands of dollars.” He developed an electronic system instead. “If this bill passes and [is] signed into law, we would never know the potential savings of innovation,” Kennedy posts on Facebook. Remarkably — perhaps even alarmingly – Stuart’s bill has passed the state Senate by 31-8 — and now heads to the House. Stuart has legitimate concerns about judge’s notes and such, although we must point out the executive equivalent — the governor’s “working papers” — are exempt so presumably the same criteria would apply. Still, to jump from that technical concern to a bill that puts the entire judicial system beyond public inspection seems a dangerous precedent.
When it comes to government, no matter which branch is involved, sunlight is preferable to darkness.