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Virginia’s online blackout for court records challenged in federal court

While a Virginia lawyer can tap on a keyboard and get almost any state court document, journalists and all others must travel hundreds of miles to see the same public records.

(CN) — Virginia has put in place a statewide system of access to court records. But it is blacked out to the public and the press.

The online records room is controlled by the chief court administrator in Virginia. The courts that keep their records in that room span the state from north to south, east to west, and cover an area of 33,000 square miles where six million people live.

But the public and press are not allowed into that room.

It is reserved for “officers of the court.” So lawyers and court officials can peruse the court records from their office computer, from their phone, from wherever they might be. But a reporter must travel to each courthouse and go into the clerk’s office to see only the records of that one court.

For example, the court records for Virginia Beach at the eastern end of the state are online through OCRA — Officer of the Court Remote Access — and so are the court records for Lee County at the far western end of the state.

A reporter would need to travel 485 miles to see the records of the two courts, a distance that takes about eight hours to drive. A lawyer would do no driving at all and would instead simply tap on a keyboard.

“Providing a system of remote access to court records to just one segment of the public not only results in a discriminatory system of access, but it is contrary to basic principles of government transparency protected by the First Amendment,” said a memorandum filed by Courthouse News lawyers in U.S. District Court.

The memo filed on Tuesday is part of an ongoing First Amendment case brought by this news service against Virginia’s executive secretary who is the top court administrator. The secretary, Karl Hade, has asked U.S. Judge Henry Hudson to dismiss the case on the grounds that the secretary is immune, in essence untouchable.

Most of the cases brought by Courthouse News are based on blackouts for a day or more involving new civil complaints. But the case against the secretary is much broader. It involves a permanent online blackout of all court records for most of Virginia.

“It is simply not possible for a news service to send reporters on a daily basis, if at all, to the 120 courts throughout the Virginia circuit court system,” said a declaration accompanying Tuesday’s memo.

“This means that the ability of the general public to learn about and comment on events in an important institution is impeded or eliminated altogether,” the declaration continued, “all while one subclass of the public can view new filings remotely on a daily basis, wreaking havoc on the traditional press corps.”

Courthouse News was recently paid $2.4 million by the Commonwealth of Virginia, which lost an earlier case against clerks in Norfolk and Prince William. They had been holding back access to new civil complaints for a day or days while they indexed and scanned them.

U.S. Judge Henry Coke Morgan Jr. ruled against the clerks on First Amendment grounds and awarded attorney fees in favor of the news service. On the fourth day of trial in that case, the judge compared fresh news to fresh bread, agreeing with Courthouse News that the delays in access harmed the news, made it stale.

But if the new complaints represent what’s in the court’s bakery, then Virginia’s OCRA system represents what’s in the legal supermarket — the entire court record for most of the state courts.

But, said the secretary, the internet is a different animal, a dangerous animal.

“Although it does treat attorneys, their agents, and certain employees of government agencies differently than members of the general public, that difference in treatment is to further a legitimate state interest in protecting court records from the ease of exploitation that a limitless internet database would provide,” argued Robert McEntee with the state attorney general’s office.

The secretary’s lawyer did not explain how the very court he was arguing in could then post his motion on the internet almost immediately. The federal courts and a growing number of state courts post court records online.

They include Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Oregon, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah and Washington state.

The Courthouse News complaint raises a broader issue tied to the evolution of courts and court records from paper documents filed during work hours in stone and marble courthouses to electronic documents filed at all times and on all days from a computer anywhere in the world.

Federal courts have adapted to the changing technology by giving access online, any time, anywhere in the world to lawyers, journalists and the public at large. Virginia on the other hand got stuck halfway through the transition to the electronic age.

Its courts rely almost entirely on paper to file cases but then scan that paper into electronic images, store those electronic records online and throw away the paper. But they require that journalists and regular folks come to the physical courthouse to look at the electronic images.

Only the legal cognizenti are allowed to see the records without traveling to the courthouse.

So the question raised by the Courthouse News action is not whether there is a constitutional right to online access — as Hade has tried to pigeonhole the dispute — but rather, once the Virginia courts put their records online, can they play favorites.

“It is simply not possible for a news service, such as CNS, to send reporters on a daily basis, if at all, to the 120 courts throughout Virginia and cover an area of over 30,000 square miles,” argued Jon Ginsberg with the New York office of Bryan Cave. “This impediment to access undermines the benefit of public scrutiny and effectively results in suppression, all while one subclass of the public can review new filings remotely on a daily basis.

“By imposing this additional burden and expense on CNS in its attempt to access nonconfidential, public court records, Defendants are infringing a fundamental constitutional right and depriving CNS of equal protection under the law,” he concluded. “This unequal and preferential treatment deprives CNS and others who are not licensed to practice law in Virginia from equal treatment and unconstitutionally infringes on the First Amendment right of access to non-confidential, public court records.”

Virginia lies within the jurisdiction of the U.S. Fourth Circuit Court of Appeals which ruled in favor of Courthouse News earlier this year on an appeal by the clerks in Norfolk and Prince William after their loss on the issue of timely access to complaints.

Courthouse News is currently challenging similar access restrictions by state court clerks within the First, Second, Fifth, Sixth, Eighth, Ninth and Tenth circuits, in addition to the Fourth. It has already won First Amendment actions against clerks within the Second, Fourth, Fifth and Ninth circuits.

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