Virginia Supreme Court records task force issues final draft of proposed rules

A Supreme Court task force issued a fifth and final draft of proposed rules governing access to court records on Dec. 4. The draft was sent to Chief Justice Leroy Hassell, who formed the committee in 2005, and presumably will be vetted through the usual rules-creation process for public comment.

Few changes were made between the fourth draft, as detailed in the August 2006 issue of NEWS, and the final draft.

The report begins with a discussion of various constitutional and statutory issues surrounding access to court records. The report also includes a Draft Rule 9 that lays out the particulars of how records are to be asked for, supplied, sealed and unsealed.

The draft also proposes adoption of a new Rule 1:24 that prohibits further inclusion in court records of certain information (Social Security numbers and financial account numbers) unless mandated by law. The provision tracks a similar one now operating in the federal district court system.

VCOG participated in the committee meetings and offered written comments to each draft of the rules. Nonetheless, VCOG remained disappointed that the task force’s membership did not include any media or citizen representatives. Instead, the committee was dominated by judges, court clerks/personnel and lawyers, none of whom will be greatly affected (if at all) by the new rules.

One section of the draft that VCOG repeatedly criticized, to no avail, is the section that allows court clerks broad discretion in filling requests for court records. The draft says clerks can refuse to provide access when there would be an “undue burden” on court operations, or if it would “interfere” with court functions, or if the request was filed to harass or substantially interfere with the court. Phrases like “undue burden” and “substantially interfere” are so vague that clerks from Highland County to Hampton could interpret them differently, or they could be interpreted differently within their own offices based on what the day’s workload looks like.

The potential disparity of treatment undermines one of the task force’s goals, as articulated by task force chair Judge Leslie Alden in a letter to the chief justice and task force members, to treat access to records in a “controlled and even-handed manner.”

Alden’s letter acknowledges ongoing work by the General Assembly in this general area and concludes that judiciary’s and legislature’s paths are “complementary.” VCOG continues to believe that the two branches of government should work hand in hand with one another, and with the full participation of citizens, activists, the press and other stakeholders.