From Virginia Lawyers Weekly, August 3, 2015
By Peter Vieth
The Virginia attorney general’s office, the Supreme Court of Virginia and the state’s elected circuit court clerks may be close to an agreement that could provide public access to a database of Virginia trial court records.
An attorney for the Daily Press in Newport News said he should know by early this week whether a deal could be reached or whether the paper would have to file suit to seek access to the compilation of case data.
Officials at both the attorney general’s office and the Supreme Court confirmed that discussions are underway to formulate a plan to make the court records public pursuant to a new request from the newspaper. An attorney representing Virginia circuit court clerks also is involved.
An arrangement for public access would resolve an impasse over access to the information. A state Freedom of Information advisory board opinion said the court records – sought by the newspaper – should be subject to the state’s public records law.
The court’s administrative office disagreed in May, saying the records were properly withheld because they contain confidential information too difficult to remove and because the records are actually under the control of individual clerk’s offices.
The clerks contend the records they maintain are not subject to the state Freedom of Information Act, but are available to the public under another state statute.
The newspaper has used a partial compilation of such records to report that African-Americans are less likely than white defendants to negotiate reduced charges in plea bargains and are more likely to face stiffer penalties for probation violations.
Attorney General Mark Herring agreed with the newspaper that access to the records serves the public interest. Herring thinks this data “can help inform critical, on-going discussions about the equity of outcomes in the criminal justice system,” said a Herring spokesperson.
Herring’s office, represented by Solicitor General Stuart A. Raphael, was receptive to the newspaper’s effort to break the logjam, said Hunter W. Sims Jr. of Norfolk, who represents the Daily Press.
“We’re still in the throes of trying to work something out with the attorney general’s office,” Sims said.
Clerks are ‘custodians’
The arrangement would require some cooperation by individual clerk’s offices, said Edward M. Macon, who serves as legal counsel for the Supreme Court of Virginia.
“We are in the process of contacting the circuit court clerks who use our case management system to see if they will consent to the release of their records pursuant to this most recent request. For those clerks who agree, we plan to send the requested records to them for their review and for them to release,” Macon said.
The clerks agree that the records are under their purview, and not controlled by the court’s Office of Executive Secretary, said John G. “Chip” Dicks, counsel for the Virginia Court Clerks Association.
“Section 17.1-242 of the Code of Virginia clearly states that each of the clerks is the custodian of court records, not the OES,” Dicks said.
“OES provides a technology platform as one vendor to the clerks. The fact that OES provides a technology platform as a vendor to clerks does not make OES a custodian of the court records of the clerks under FOIA for those clerks who use the OES Case Management System,” Dicks said.
Some clerks questioned a request that they prepare new compilations of records to comply with requests under the state Freedom of Information Act, according to Virginia Beach Circuit Court Clerk Tina E. Sinnen.
“They want each clerk to do their work for them,” Sinnen said.
Nevertheless, Dicks said the clerks stand ready to allow access under the law governing local court records.
“As counsel to the VCCA, we have advised counsel to the Daily Press that each of the clerks would be pleased to facilitate access to these public records under the applicable provisions of Title 17.1,” Dicks said.
Sims said the paper is simply looking for a way to easily access the court case information that now is publicly available on the Supreme Court’s website, but only by making separate inquires for each court.
“It’s not anything confidential, and it’s clearly a public record,” Sims said.
Sims said the paper’s latest request was narrowed to circuit court records for felonies from 2004 forward.
“I really would like to see this worked out,” Sims said.