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Op-Ed

Virginia should put civil court records online

December 13, 2021

The Fredericksburg Free Lance-Star in Virginia wrote a clear and succinct editorial in support of a First Amendment action brought by Courthouse News that is scheduled for a hearing on the state’s motion to dismiss next week before U.S. District Judge Henry Hudson. Reprinted with permission.

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Throughout the United States, most federal courts and many state courts offer remote electronic access to civil court records. Virginia does not.

If you have a vested interest in a civil suit in our state, you have to go to whatever court (there are 120 in the state circuit court system) is appropriate and research it the old-fashioned way.

Actually, you can have remote access to civil court records, but you have to go to law school first. Attorneys can get them electronically. We civilians can’t. That doesn’t seem fair, and a news service dealing with legal issues, Courthouse News Service, is trying to open electronic access to everyone. It is suing two Virginia court officials to try to make that happen.

The attorney general’s office wants to have the suit dismissed. Ninety-three of the state courts now use digital systems, and the AG’s office says it is worried about records being exploited.

The AG’s office concedes that there is indeed a First Amendment, and that it does grant a right to access, but that this freedom does not mandate remote access “to avoid a trip to the courthouse.”

That seems a little high-handed. Suppose you’re in Fredericksburg, but have a vested interest in a circuit court proceeding in Roanoke. The trip to the courthouse is about seven hours round-trip.

A spokeswoman for the Office of the Executive Secretary of the Supreme Court of Virginia says that state law allows remote access only to lawyers and government agencies. However, according to a report in the Richmond Times–Dispatch, state law says the circuit court clerks may provide remote access, including via the internet, to all nonconfidential records.

Obviously, Courthouse News Service has some skin in this game. It is an issue for the service and for any media outlet, including The Free Lance–Star, that is trying to report the news. But opening remote access to civil court proceedings helps anyone who has a vested interest in a case and wants to “avoid a trip to the courthouse.”

The state should not take this lawsuit lightly. CNS has a pretty good track record when it comes to expanding access. A federal appellate court recently upheld a victory for the service against the state. Some court clerks were blocking access to newly filed civil complaints until clerical work was done. A district court judge ruled that the records should be made available as soon as complaints are filed, and the appellate court agreed.

The state was required to pay $2.4 million to CNS for attorney fees.

If state law gives circuit court clerks the right to provide remote access, the solution seems simple. Such access would be a plus for open government and would make many state residents’ lives a little easier.

Maybe this one can be settled without somebody having to fork over another $2.4 million to attorneys. We hope so.

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