The future of access to court records in the electronic age is still undecided in Virginia, though a 32-member committee appointed last winter is four drafts closer than it was before.
As reported in the January 2006 NEWS, Chief Justice Leroy R. Hassell Sr. created the committee, chaired by Fairfax Circuit Court Judge Leslie Alden, to review rules on court records, from the district and circuit court levels, to the Court of Appeals and Supreme Court of Virginia.
The committee is made up primarily of lawyers, judges and court administrators. There is a representative from law enforcement, and someone who works with domestic abuse victims, but noticeably absent are members of the public and press. Most court-record committees, commissions and study groups in other states have routinely included these voices.
The Virginia Coalition for Open Government and the Reporters Committee for Freedom of the Press each filed comments to the draft and representatives from both groups attended both full-committee meetings.
A nine-person subcommittee met in early February to hammer out a few details, but the subcommittee did not meet again, and further changes and revisions have come only after meetings of the full committee, also in February and in late May. A fifth and “final” draft was released in early August (though it was called a final draft, it still allowed for comments to be filed for two weeks after its release).
One part of the draft rule is modeled after the rule adopted recently by the federal courts. Draft Rule 1:24 says that, unless required by state or federal law, no future records filed with the court should contain any “core personal identifying information”: Social Security and similar identification numbers, dates of birth and financial information. Attorneys will have to certify that they have complied with the rule.
An attempt to categorically prohibit the inclusion of information related to minor children was dismissed at the May 25 meeting.
This part of the rule also includes a general reference to the parties’ right to ask the court to seal or unseal records. Draft Rule 1:24 then refers to the Draft Rule 9:6 for the specific factors a judge must weigh in deciding what to do next.
The entire Draft Rule 9 concerns access to court records. Access to electronic records is one part of that Draft Rule 9, and was by far the stickiest part — so much so that the fifth draft eliminated the section on accessing electronic records all together. Some committee members strongly suggested that access to electronic records should be treated differently from access to paper records. Others disagree.
And Virginia Court of Appeals Judge Arthur Kelsey didn’t even think the committee should be making rules that will affect what records or what parts of records will and will not be available electronically. The debate is important, he said in May, but ultimately these are policy decisions that should be decided by the General Assembly. Kelsey suggested identifying the pros and cons for the legislature and then let it go.
Judge Alden reminded the committee that Chief Justice Hassell believes the Supreme Court has supervisory power over its records, and she did not believe the committee could abdicate responsibility for getting some new rule into play.
Even though FOIA does not apply to litigation records, the group expressed general support for using FOIA procedures as a guideline for handling requests. Unfortunately, that support only went so far.
On the upside, there is a statement in the fifth draft that record requesters cannot be asked why they want records. On the downside, a clerk can refuse to fill a request for records if it would create an “undue burden” on court operations, would “substantially interfere” with court functions, or if the request is “filed for the purpose of harassing or substantially interfering” with court operations.
Court clerks are left to define these squishy terms on their own, meaning a particular harried clerk can claim that because his office is understaffed, an ordinary request can be left wanting. The non-standard is just too ripe for abuse.
Wise County Clerk of Court Jack Kennedy had this to add:
“There are no tangible estimates to dollar savings associated with electronic/digital storage and filings. Taxpayer benefit/savings are neglected other than the general principle of open access. The potential bottom-line dollar and cents argument is lost in the principles of . . .practical obscurity’ and . . .access.’ Actual storage of electronic data would save millions of dollars statewide to local governments.
“Lost time in searching for misplaced paper files in every court system, while not readily measurable, is nonetheless real. Human time lost or wasted in . . .the paper chase’ is valuable to both the public and private sectors. There seemingly is no mention of it and it is worthy of the effort.”
The draft leaves much to be desired, but in a glass-half-full world, it arguably could have been worse.
Correction: In the January 2006 issue of NEWS, we incorrectly identified the affiliation of Kent Sinclair, a member of the Supreme Court task force on court records and the person primarily responsible for the initial working draft. Sinclair is a professor at the University of Virginia School of Law.