(CN) — Alone among the states, Virginia has put in place a two-tier system of access to public court records. The upper tier is for officials and lawyers. The lower tier is for press and public.
The upper tier allows remote access. The lower does not. If you are in the lower tier, you must go to each courthouse and look at local records only.
Whether that policy violates the First Amendment is now at issue in the U.S. Fourth Circuit Court of Appeals. The Courthouse News reply brief, which is the final brief, was filed Thursday.
“In our country, the courthouse door is open to all who wish to learn what is happening inside,” said the reply brief.
"Appellees’ theory that it is inherently dangerous to allow secure remote access to anyone but government employees and attorneys is incompatible with, and abhorrent to, the First Amendment right of access."
As the brief points out, federal courts and all state courts other than Virginia provide one form of access for all. Usually it is both remote and at the courthouse.
National media organizations also filed an amicus brief challenging a lower court’s OK of the Virginia policy. A total of 38 news organizations signed onto the amicus brief, including Associated Press, The Atlantic Monthly, Gannett, McClatchy, The New York Times, Virginia Press Association and The Washington Post.
“The time and personnel resources necessary to travel to multiple courthouses over multiple counties make obtaining access to civil court records in proceedings across the Commonwealth impracticable, if not impossible, thus depriving the public of reporting on matters of public interest and concern,” said the national media’s argument.
To demonstrate the distances and time required to cover the courts in person, three journalists from Courthouse News went on a week-long road trip through Virginia courts that run along the eastern flank of the Appalachian Mountains.
When they asked Brenda Hamilton, the clerk in Roanoke City, for remote access, she first asked them, “Are you officers of the court!” When in unison they said no, they were journalists, she answered. “I can’t give it to y’all. Sorry Harry, too big a weight to carry.”
They looked at public records in 25 county courts on a trip that took them over 1000 miles of road and lasted a full week. By way of contrast, any Virginia official or lawyer could review the same public records in less than an hour without moving from a home computer.
Along the way, the three journalists found one clerk who would give them remote access. But the opening page of the remote system’s software requires the user to certify the user is either a public official or an attorney.
The software is developed and controlled by the Office of the Executive Secretary which is the Richmond-based administrative body for the Virginia courts.
“A nation of two-tier access to the courts, in which attorneys and the government can use a secure Internet fast lane for access but the media and public cannot, is not just contrary to Circuit and Supreme Court law,” the Courthouse News reply brief concluded. “It is wholly inconsistent with the open court system on which our nation was founded.”
In its earlier answering brief, Virginia argued that courthouse access is all the Constitution requires.
“Every circuit court in Virginia provides the public with contemporaneous access to civil court records at the courthouse,” wrote Principal Deputy Solicitor General Erika Maley. “That many Virginia circuit courts offer online access to certain government agencies and officers of the court does not create a constitutional requirement to provide online access to the public at large.”
She warned the appeals court that “bots,” or automated programs, could be used to extract information from court records for sale, and criminals could use that information “for malicious purposes.”
Bots are used for a variety of purposes. The most famous of the bots, Googlebot, is used to bring information onto the Internet, including information from the websites of local Virginia courts. There are also defenses against unwanted bots, including registration and a pay wall.
But there is also another more mundane interest driving the litigation.
Virginia court clerks, local politicians who as a group have sway in the state legislature, earn extra money from the sale of copies of court documents. Restrictions on remote access are driven partly by the clerks’ desire to keep local copy fees coming into court coffers.
At a trial court hearing in September 2022, U.S. District Court Judge Henry Hudson asked Assistant Attorney General Erin McNeill if remote access would cut into the clerk’s income. “Oh, I’m sure it would,” she answered. “I don’t know that we’re permitted to make that argument under the First Amendment.”
Even so, the judge ruled on summary judgment motions in favor of Virginia, concluding that no case said remote access was a constitutional right. The opening brief by Courthouse News in the Fourth Circuit Court of Appeal followed.
One of the threads in the opening brief’s intricate tapestry of argument was that many courts give remote access to court records, so it cannot be such a hard and dangerous thing to do. For example, all federal courts offer free access at the courthouse and remote access conditioned on registration payment of a small per-page fee. In addition, lawyers are required and reminded to remove personal identifiers from their filings.
But Virginia, unlike the federal courts and 38 state courts, finds it too dangerous to give remote access to the public.
“Government employees, and other preferred groups have 24/7/365 online access to court records, the equivalent of the access superhighway,” said the opening brief. “Meanwhile, the press may be treated as a second-class citizen and relegated to the equivalent of the access horse and buggy.”
For Virginia, the current brawl with the press comes against a backdrop of hard-core opposition to public access. In 2020 litigation against local clerks for withholding access at the time of filing, when the news is fresh, the clerks lost.
When they appealed to the Fourth Circuit, they lost again, and wound up paying $2.4 million in attorney fees to Courthouse News.
But that has not deterred the clerks and the state. Their defense is paid ultimately by the public and, when they lose, the attorney fees paid to their opponent come from the Commonwealth of Virginia. On the current appeal, Virginia is represented by the Attorney General’s office.
Courthouse News is represented by Roger Myers, Rachel Matteo-Boehm and Jon Ginsberg with Bryan Cave in San Francisco and New York, and by Dabney Carr with Pepper Hamilton in Richmond. The national media is represented by Bruce Brown, Katie Townsend, Shannon Jankowski and Tyler Takemoto with the Reporters Committee for Freedom of the Press based in Washington.
“If not reversed, the District Court’s order will hamper the ability of the news media to report on court proceedings of public interest in Virginia and around the country,” said the national media’s brief. “Journalists regularly rely on remote online systems to access court records which, in turn, enables them to timely and accurately report on court cases of public interest. Indeed, federal courts have provided such access to members of the press and the public for more than thirty years.”
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