WASHINGTON (CN) — The Fourth Circuit Court of Appeals on Thursday heard an effort to break down walls that limit online access to Virginia court records to attorneys and prohibit access to the press and public.
“Why should First Amendment rights be at the mercy of the various decisions of the clerk's office?” U.S. Circuit Judge Roger Gregory asked.
Courthouse News brought its case against Prince William County Clerk Jacqueline Smith before the Fourth Circuit, arguing Virginia’s restrictions on who can access the Officer of the Court Remote Access system violates the First Amendment.
“What the commonwealth has done is essentially made the access not meaningful for everyone else because it is just too much of a burden for any member of the press to cover a court or all the courts on OCRA by having to go and get physical access when there is already online access being made available to other people,” Roger Myers, an attorney with Bryan Cave Leighton Paisner representing the publication, said during arguments on Thursday.
Last year, Courthouse News spent five days traveling over 1,000 miles to visit just 25 of Virginia’s circuit courts — there are 120 in the state. To gain access to complaints filed at these courts, reporters had to navigate when one clerk’s office opened and another closed to be able to go into each courthouse and print recent complaints.
“Sorry Harry! Too big a weight to carry!” Brenda Hamilton, the clerk of the Roanoke City Circuit Court, told the Courthouse News journalists in denying access to the online system.
Attorneys in the state face no such barriers. Through Officer of the Court Remote Access, attorneys can pay a monthly fee to access court documents remotely. Approved government agencies can also obtain online access, but the press and public cannot.
Although Senior U.S. District Judge Henry Hudson ruled that the lawyer-only restriction was problematic enough to allow the case to go forward, he found for the state and clerk on summary judgment. Courthouse News appealed the ruling to the Fourth Circuit.
Judge Gregory on Thursday noted the framers saw the press as an essential piece of the First Amendment and named them as beneficiaries. He questioned why the state thought it was worth the risk to allow attorneys access to information in court documents, but not journalists.
“When it comes to the press, in terms of our constitutional history, haven't we been willing to take that risk, because it's so important that the public knows what its government is doing — particularly the third branch of government, as well as the executive?” asked Gregory, a Bill Clinton appointee.
The appeals panel focused on how court documents could be accessed by different parties and what information would be released in each case.
U.S. Circuit Judge Allison Jones Rushing said Courthouse News could just go to any of the circuits and obtain the information reporters sought online. She also pointed out that by doing this, reporters could share the information they obtain, whereas attorneys are barred from disseminating records they access online.
“Your client has access to these documents and they can disseminate,” the Donald Trump appointee said.
Courthouse News said its reporters do not have meaningful access.
Virginia argued the state met its First Amendment requirements by allowing reporters to access court records at the courthouse. The state says allowing online access to the press and public risks the privacy of sensitive personal information.
Erika Maley, principal deputy solicitor general of Virginia, said the state was concerned that additional access would result in nefarious data mining operations.
“The type of marketing we're talking about is false or misleading, or outright fraudulent uses of information — using someone's social security number to open credit cards in their name to drain their bank account,” Maley said.
The panel was interested in how sensitive information on these documents could be redacted to prevent the state’s data mining concerns. Certain information, like social security numbers, is redacted regardless of where the record is accessed; however other personal information, like dates of birth or minors' names, is not.
Virginia cited a concern about widely disseminating those details, but Gregory pointed out that reporters could still access that information and disseminate it if they went to the courthouse. Maley said there was no information online that was not also publicly available at the courthouse.
“It really comes down to leaving your office and walking over that courthouse, as opposed to sitting in your office and just getting the same information,” said U.S. Circuit Judge James Andrew Wynn, an Obama appointee.
The Prince William County clerk opposing Courthouse News' suit worried a win for the publication would wipe out the system altogether, leaving attorneys without meaningful access to records.
“I'm an attorney that practices in state and federal courts, but mostly in state court, and I am primarily in Fairfax, where we do not have online access,” said John Altmiller, an attorney with Psener Altmiller representing Smith. “That has been the difference between being able to access documents, say, if we're in Prince William as to being in Fairfax. It makes a difference. It affects our ability to efficiently operate and serve our client's interests.”
Alexandria Circuit Court stands as the sole example of how allowing the press remote access could work. Courthouse News also notes that Pacer, the online portal for federal court filings, gives access to civil court records without the problems described by Virginia.
Led by the Reporters Committee for the Freedom of the Press, 38 news organizations joined an amicus brief in support of Courthouse News at the Fourth Circuit. The publications say denying the press and public online access to these records infringes on constitutional rights requiring access to civil court records.
Follow @KelseyReichmann
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
