Monthly Archives: May 2013

The Public Records Act & the key records hidden from the public

* EDIT: As noted here, the Library of Virginia began providing access to the retention schedules in late 2013. *

Open government advocates focus on FOIA, for obvious reasons.  It is FOIA that allows citizens to obtain government records and FOIA that provides a mechanism for private enforcement.  But FOIA does not require government entities to manage and keep records in the first place.  The Virginia Freedom of Information Act provides that you can get existing records upon request; the Virginia Public Records Act (Va. Code §§ 42.1-76 through 42.1-91) ensures that government keeps records so that those records exist when requested.  Unfortunately, key information about how agencies apply the Act is hidden from the public.

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Clerks’ use restrictions on case records: a bad, invalid idea

A number of Virginia circuit court clerks have implemented a system generally known as Officer of the Court Remote Access (OCRA). See, e.g., the City of Richmond Circuit Court Clerk’s OCRA page.

Clerks with OCRA keep case documents electronically.  OCRA then provides Virginia attorneys willing to register and pay a fee with the ability to log in to a website and access case documents just as they could from a computer in the clerk’s office.

So far, so good.  OCRA courts / clerks are to be applauded for using technology to create more efficient court administration, improved practice of law, and increased access to court records.  That’s as far as the good news goes, however.

There are a number of technical/use criticisms that could be made of OCRA (at least as we’ve experienced it).  Notably, it’s even worse than the federal PACER system, which is saying something.  Charges for OCRA are flat fees, not based on use.  Case searching is extremely limited.  Document searching is non-existent — you can’t find documents by type, date, assigned judge, or any number of other data points that must already be present in the underlying records database.  In short, if you don’t already have a specific case’s name or number, you might as well be throwing darts at boxes in a records warehouse.

But this post focuses on a non-technical failing – the unnecessary attempt by circuit court clerks to forbid attorneys who use the OCRA system from sharing case documents.

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Digitization – Intro and Status

This site favors digitization.  There are a number of benefits to digital records of course — decreased expense of acquisition and maintenance, increased ease of reproduction and use, etc.  And legal records are perfect for digitization because even older records aren’t merely historical curiosities:  the passage of time alone doesn’t make legal records obsolete.

Where does the digitization of legal records stand now?  It depends on where you are and what type of records you’re talking about.

In Virginia’s federal courts, recent case records (including orders and opinions) are kept in electronic format and accessible through PACER/ECF, which is far from perfect but at least does make a lot of case information and documents available to anyone willing to register.  (There are charges, which vary by court and type of record, and whether you actually must pay the charges incurred depends on your level of use.)

Virginia’s state courts are significantly behind the feds.  A still small but growing number of circuit courts have embraced a system known as OCRA (Officer of the Court Remote Access), but OCRA has significant flaws.  First, it is designed only for retrieval of things you already know about — you must look up specific cases to access records and can’t search by type of document, date range, judge, keyword, etc.  Second, OCRA is available only to attorneys who pay for access to it.  And third, even for those attorneys, circuit court clerks are imposing restrictive conditions on documents retrieved through OCRA.  (More on that in a future post.)

Virginia’s appellate courts have a lot of case records in digital format, but they make them available to almost no one.  Want a copy of a brief that was filed electronically in the Supreme Court of Virginia?  Good luck — they don’t share electronic documents outside the Court, so you get to pay them $0.50 per page to print it out for you.

As for decisions, as noted on this site’s Judicial page, Virginia’s appellate courts publish their opinions online but not the official “reports” containing the final versions that can be cited.  Only two Virginia circuit courts (Loudoun and Norfolk) make their opinions available online.

Of course, if you’re willing and able to pay, the floodgates open.  WestLaw and LexisNexis have digitized vast quantities of legal records.  All they demand in return is a bunch of money and your agreement to their conditions on use.  Other repositories also exist, some of which are free and less restricted.  But more can be done.

Copyright uncertainty and problems impedes republication of briefs.  (More on that in a future post.)  But those concerns don’t apply to opinions and orders, and we intend to push that point.  We’ve decided to start with the Annual Reports of the Attorney General of Virginia.

The central content in those Annual Reports are the official opinions issued by the Attorney General (as discussed on this site’s Executive page).  AG opinions can be an excellent resource on a wide variety of topics, especially if you’re interested in the workings of government, including many topics that don’t frequently become case law.  (Pro tip: befriend a legislator — they can request an AG opinion on any topic.)

The OAG makes available reports from 2004-present (the latest at this writing being 2011).  We’re going to help expand that set as time allows, beginning with 2001-03.  Click over to the Executive page to get at them.

 

UPDATE: OAG stops disclaiming FOIA

Yesterday, we commented on the Office of Virginia Attorney General Ken Cuccinelli’s suggestion that OAG was not subject to the Virginia Freedom of Information Act (FOIA).

As reported by The Washington Post and Virginia Lawyer’s Weekly (among others), the OAG has changed course and decided to stop making that argument.

Good work to our fellow open government advocates.  Glad to see media (Daily Press, Times-Dispatch, Virginian-Pilot, and Roanoke Times) taking up the issue (even if their rhetoric is a bit heated and they fail to focus on the Supreme Court of Virginia, who created the problem).  Let’s hope that the momentum to broaden and strengthen FOIA persists and bears fruit in the 2014  session of the General Assembly.

 

Openness in the News – 5/20/2013

The Office of Attorney General Ken Cuccinelli (OAG) has made openness news recently with a claim that the OAG may not be subject to the Virginia Freedom of Information Act (FOIA), Va. Code §2.2-3700 et seq.  The Washington Post has the story.  (Kudos to the Post for also providing primary source links, including to one of the letters in which the claim was made).  The claim has drawn some rather strong reactions from open government advocates.

Sure, this type of news is tinged with election year politics — if you’ve been under a rock, Cuccinelli is running for Governor — but the issue of whether FOIA applies to constitutional officers is an important one.  Let’s explore it.

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Openness in the News – 5-17-2013

On occasion, this site will highlight instances where the openness of the law has made the news.  This one doesn’t involve Virginia directly, although the constitutional principle of public access to the courts certainly affects Virginia law.

For various reasons, Delaware is a mecca for forming businesses (corporations and similar entities).  The state recently upped its appeal to business by accommodating the frequent corporate desire for as much secrecy as possible.  Specifically, Delaware created a process under which the judges of its main state business court would arbitrate disputes.  Arbitration is one of two common forms of “alternative dispute resolution” (ADR) — i.e. ways to resolve disputes other than a traditional court case.  (The other form is mediation.  The main difference between the two is that the person conducting a mediation attempts to persuade the parties to settle, while the person conducting an arbitration actually decides the dispute.)

The proceedings and records of the Delaware arbitration system at issue are entirely secret.  (ADR proceedings are usually not public.)  The attention-grabbing features of Delaware’s new system are that the arbitrations are conducted by state judges, and those judges can enter orders to enforce their decisions directly (as opposed to a private arbitrator, whose decision requires a court with power over the litigants to enter an enforcement order).

A federal district court judge found Delaware’s arbitration-with-judges system unconstitutional.  That decision has been appealed to the United States Court of Appeals for the Third Circuit, and, as Reuters Legal reports, oral argument was held this week. The case is Delaware Coalition for Open Government v. Strine et al. (3d Cir case no 12-3859).

For bonus points, as you access briefs and other case records through PACER (registration required; fees possible depending on usage) or listen to an audio recording of oral argument (direct link; no registration required) ask yourself why the public can’t do the same for any Virginia state courts.

 

What’s the point?

The public should have access to, and the ability to understand, the records and proceedings of government:

“The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.”  Va. Code § 2.2-3700(B).

“The benefits of public access to criminal proceedings have been recognized since before the Magna Carta.  Such access ensures that proceedings are conducted fairly, discourages perjury, safeguards against secret bias or partiality, and imparts legitimacy to the decisions of our judiciary.”  Daily Press v. Commonwealth, 285 Va. 447, 453, 739 S.E.2d 636 (2013) (link to slip op.).

“A trial is a public event.  What transpires in the court room is public property….  There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.”  Hunter v. Va. State Bar ex rel. Third Dist. Comm., 285 Va. 485, 502 (2013) (link to slip op.).

Despite such ringing affirmations of the importance of public access, and despite statutes specifically providing rights of access to judicial records (Va. Code § 17.1-208), Virginia’s state courts often ignore or reject easy ways to provide public access to important legal resources.  Officials too often embrace the legal profession’s elitism, and certain private people & entities are given access that the public does not have.  Over time, this has serious, corrosive effects — it perpetuates an unjustified mindset among officials that openness and access are not important, and it slowly makes Virginia’s legal resources captive to select private entities (through those entities’ restrictive terms of use and aggressive assertions of copyright).  Rejecting openness and retarding access often goes hand in hand with a failure to make good use of technology, a further negative.

The judiciary is certainly not alone in this regard.  In the legislative branch, lack of openness might manifest as bills quietly drafted or revised with lobbyists, substantive provisions of law buried in the state budget or Acts of Assembly, or vague and inscrutable laws.  In the executive branch, lack of openness might take the form of tactics to avoid open meetings or of expansive use of exceptions to the Virginia Freedom of Information Act.

Open Virginia Law exists to oppose these problems, to provide a spotlight — highlighting instances where open access is provided as well as where officials reject openness without justification — and to work to increase openness.  Persuading officials to solve these problems or winning the necessary changes in the law won’t be easy, but this effort is important.