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Long fight over Virginia court access comes to a head

Efforts to expand access to Virginia's online court system have long been stymied by local clerks. That could change if a federal judge steps in this summer.

RICHMOND, Va. (CN) — For Richmond BizSense Editor Michael Schwartz, long trips to Virginia courthouses are a daily occurrence. 

“Public records in general, that’s 85% of what we do,” Schwartz said of the business-focused publication he’s managed since 2010. He pointed to a recent trip to a courtroom records department about 15 miles outside of Richmond, where he spent a solid two hours poring over documents. 

“There’s no way to find out about these cases without going down there,” he said.

The need to physically acquire court documents is something journalists like Schwartz, members of the public and even practicing attorneys are often burdened with in Virginia. Access to court proceedings – a First Amendment-protected right – is almost entirely limited to in-person availability.

The federal government addressed the problem for federal courts over two decades ago with the development of the Public Access to Court Electronic Records system, known as PACER by friend and foe alike. While that system swung open the doors of federal courts around the nation, the same can’t be said for state courts in places like Old Dominion.

Virginia has a digital remote court document system, but only a few can access it. Created in 2011, the Officer of the Court Remote Access system, or OCRA, is limited by state law to attorneys, who pay a fee to access each circuit, and approved government agencies. Furthermore, not all of Virginia’s 120 circuit courts use OCRA, as each clerk has to sign up for the system.

“It’s a patchwork system that’s very expensive,” said state Senator Mark Obenshain, a Harrisonburg-area Republican who said he’s spent years trying to improve access to the state’s courts.

“It makes it very difficult for members of the public and [Virginia State] Bar to access those records, and for lawyers more expensive to practice law,” he said of the way OCRA currently operates. “That increases costs and limits the public's access to legal services.”

Though his concerns were admittedly rooted in his own legal practice, Obenshain's recent legislative efforts to standardize the system statewide would have also included broader access for the public.

His most recent push to change the state’s court documents system went before the Virginia Senate’s Courts of Justice Committee in 2018. 

“If we don’t do this, it's never going to happen in Virginia,” he told the committee at the time, before its members voted unanimously to advance the legislation.

But the local court clerks pushed back. Their trade group, the Virginia Court Clerks Association, declined an interview request, but lobbyist Chip Dicks suggested in 2018 testimony that his group was sympathetic to the senator’s wishes.

“It takes time to do stuff, I’ve been working on this for 20 years,” Dicks said, adding it would take the Office of Executive Secretary – the administrative branch of the state’s court system, known as OES – the clerks and legislators themselves working together to address concerns. 

Dicks also pointed to another issue: opening up the courts to easy online access could lead to the publication of sensitive personal information. 

“The way this bill is drafted right now, anybody would have access and could go and manipulate that data and do anything with it,” he said. 

The Lynchburg Circuit Court in Lynchburg, Va. (Brad Kutner/Courthouse News)

Protecting sensitive data is also an issue for Fairfax-area Democratic Senator Scott Surovell.

“Every single Virginia traffic summons has a driver license number and birthday, every criminal warrant has a Social Security number,” he said. “You take those things and you could register somebody to vote electronically.”

But Surovell is still an advocate for opening the courts. He voted for Obenshain’s bill along with every other member of the Senate when it made it to the floor. However, the measure was ultimately killed due to a budget demand of about $1.5 million, too much for the spending-averse Virginia Legislature. Surovell thinks it would have faced other hurdles even if fully funded. 

“They create a resistance point every time we try to do this,” he said of Virginia's court clerks, 120 locally elected officials who are empowered under the state’s constitution to be the gatekeepers of their county’s records. 

Megan Rhyne, executive director of the Virginia Coalition for Open Government, is uneasy with that gatekeeping role. While the Virginia Constitution might protect clerks, she said the U.S. Constitution was created to protect the public. 

“It’s a First Amendment issue. You have a right to access and there’s this notion of open courts,” the government transparency advocate said.

Pushing back on privacy concerns, Rhyne said, “Those are logistical problems, not policy reasons for why information can’t be more easily accessible."

There’s been little legislative movement to expand access to the courts since Obenshain’s 2018 bill, but that hasn’t stopped First Amendment advocates from trying to pry them open. 

Following successful fights over timely document access in Virginia's Norfolk and Prince William counties, California-based Courthouse News Service filed a federal lawsuit last year against OES over OCRA’s limited access. 

In an early win for the news outlet, Senior U.S. District Judge Henry Hudson ruled last month that the online system’s lawyer-only restriction is problematic enough to go to trial this summer. 

"It is well-settled that the press and public have a right of access to most, if not all, civil court records," the George W. Bush-appointed judge wrote in a 14-page opinion.

Courthouse News bureau chief Ryan Abbott applauded the ruling, noting Virginia attorneys can access filings with a few clicks of a mouse while journalists and the public must make the physical trip. 

“That’s restricting access and violating the First Amendment,” Abbott said. 

Still, Hudson was sympathetic to the state's privacy concerns.  

“It is, at a minimum, rational to believe that limiting OCRA access to attorneys would protect confidential and private information,” he wrote, rejecting Courthouse News' equal protection claim. 

Back in the records room, Schwartz is less convinced about that holding. Such identifying information is already a matter of public record, he said, and finding a constitutional fix is imperative.

“In an industry like journalism, undermanned and underbudgeted, limiting access has a negative impact on keeping the public informed,” Schwartz said. “Opening up the courts would help.”

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