The following was originally published by the Virginia Mercury on May 6, 2019.

https://www.virginiamercury.com/2019/05/06/supreme-court-places-a-heavy-thumb-on-the-scale-for-keeping-records-secret/

Supreme Court places ‘a heavy thumb on the scale’ for keeping records secret

by Megan Rhyne

May 6, 2019

In late summer 2018, the West Virginia House of Delegates voted to impeach its Supreme Court’s four sitting judges; the fifth one had resigned earlier.

What started the whole ball rolling was a TV news report that found the justices had been throwing money around like newly signed professional athletes.

Collectively, they spent $3.7 million on office renovations, including $31,924 for a couch, $2,560 for a coffee table, $8,098 for an office chair and $7,500 floor piece outlining the Mountaineer State’s counties, with the chief justice’s home county filled in with blue granite.

When pressed by a reporter, the chief justice blamed the lavish spending on the former administrative director for the courts, who retorted: “Hah! Well, [the chief justice] was my boss and you really can’t tell a boss no.”

Further investigations showed private use of publicly funded furniture and cars, taxpayer-funded  “working lunches” and circumvention of rules to pay senior-status judges more than was allowed.

Though it turns out some of the impeachment votes were procedurally irregular, only one of the four currently serves on the bench, and a federal jury convicted the chief justice on seven counts of wire fraud, one count of mail fraud, one count of witness tampering and two counts of lying to the FBI.

In our own state, a juvenile and domestic relations judge served a two-month jail term, was removed from the bench and had his law license suspended over his letter — which included his business card — to a witness in his wife’s federal court trial for official corruption.

No one wants to believe that judges or court personnel behave badly. And luckily, it seems, they rarely do. But as these two examples make clear: access to information, to records, is essential to keeping our judicial system accountable.

Accountability of our local governments, school divisions, colleges, regional bodies, state agencies,and even our top elected officials and General Assembly members is made easier by the Freedom of Information Act. We the people have the right to determine which records we want to see; FOIA gives us the pathway to follow. There are, of course, exemptions in FOIA and prohibitions elsewhere in the Virginia Code that say some records are off-limits, but an astounding amount of information is unquestionably open to the public upon request.

Accountability in clerks of court offices has been an interesting challenge over the years. Clerks maintain records having to do with cases tried and adjudicated in the circuit courts. They also keep records they’ve been told by the General Assembly to keep, like land records. And they keep the records of the everyday operations of the offices as government entities.

FOIA recognizes the difference in clerks records’ form and function by saying, essentially, access to records that Title 17.1 (which deals with courts of record) requires them to keep will be governed by Title 17.1. Access to all other records will be governed by FOIA.

The Virginia Supreme Court has recently rejected an extension of that principle, not only to itself and judges in the various state courts, but also to the Office of Executive Secretary, which provides administrative support for all of the courts and magistrate offices within the commonwealth. The Supreme Court released a set of rules separate and apart from FOIA that will govern what records the public will get to see.

Spoiler alert: it’s not many.

The rules are the latest salvo in an aggressive push to divorce the courts and the Office of the Executive Secretary from FOIA. In 2018, SB 727 would have removed them from FOIA. The bill was withdrawn by its sponsor, but then a circuit court judge ruled similarly some months later in a case that stemmed from a citizen request to see OES’ long distance telephone bills.

Rather than recognize the different types of records the courts maintain — case files, deliberative work product, court performance and administrative records — the rules conflate all records into a one-size-fits-all proposal that places a heavy thumb on the scale in favor of confidentiality over the public’s right of accountability.

Where FOIA begins with a lofty policy statement that rejects secrecy, mandates interpretation “to promote an increased awareness of . . . governmental activities,” and celebrates the public as “the beneficiary of any action taken at any level of government,” the new rules exist to “protect privacy, confidentiality, the administration of justice and the best interest of the commonwealth” while giving the public “reasonable access.”

Where FOIA presumes that records are open, the new rules say the records of judicial officers (judges) “are not publicly accessible.” None of them. Zero. But just to make sure you get the picture, there follows a list 10 types of records that are definitely not open to the public, including “communications among court personnel . . . and among judicial officers.”

FOIA would look at communications among staff and decide, based on content, whether they had to be released. But here, communications, including a letter written by a judge with his business card, would not be publicly accessible.

That embargo extends to the OES, too. Despite the fact that the OES was created by the legislature, is publicly funded and handles the day-to-day operations of the court system, communications among people in that office would be off-limits under the new rules.

The new rules give a nod to making “financial records” available. These include “but [are] not limited to” travel vouchers, purchase orders and payments to certain positions. They also say that statistical information, some policies and court forms will be available. But that’s it, and without establishing that other records are presumptively open, what follows is another long list of items that will not be available.

There are a whole lot of records that don’t fall into any of these categories: contracts of all sorts, fire inspection reports, telephone long distance billing records, logs of government car use, lunch receipts submitted for reimbursement, backup tape inventories, risk management/insurance claims, meeting agendas, court construction feasibility studies or office renovation sketches, like ones obtained by the West Virginia TV station. Would some of these be characterized as financial records and released? Or would some be characterized as “infrastructure records” that expose security vulnerabilities of  “building security, personnel, recordkeeping, information technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage, and gas systems”?

We are frequently told that there is a wealth of information about the courts on the court website. The outdated website is difficult to navigate, but more problematic is the fact that accountability isn’t achieved simply by proactively disclosing information the government has decided it’s OK for the public to see. Instead, true transparency comes from disclosing records that a citizen, reporter or even another government employee has determined for him/herself as being necessary to understanding the who, what, when, where and why of government actions and operations.

If the Supreme Court wanted to protected judicial deliberations, it could do that, while leaving access to administrative records open under FOIA. If there was concern that the doctrine of separation of powers barred application of FOIA to any of the courts’ records, it could have issued rules that mirror FOIA’s procedures and exemptions. But that’s not what’s happened.

The courts need to acknowledge that being a separate branch of government does not mean that there is a separate duty from that which applies to the executive and legislative branches to be open and accountable to the public they all serve.