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.
We checked the OCRA Subscriber Agreements for multiple circuit courts, and the vast majority contain a use restriction substantively the same as the following:
“Subscriber shall not permit any data accessed by secure remote access to be sold or posted on any other Internet website or in any way redistributed to any third party, and the clerk reserves the discretion to deny secure remote access to ensure compliance with this provision.”
THE OCRA USE RESTRICTIONS ARE A BAD IDEA
Public access to court proceedings and records is a principle that has a long history, that is well-settled in case law and in public opinion, and that carries important benefits. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605-06 (1982); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988); the 2013 Virginia legal authorities we’ve highlighted previously.
In a time when courts routinely decide fundamental societal issues and when it is common for there to be reference to courts, lawyers, and the law as corrupt or captive to private interests, judicial openness is more important than ever.
For these reasons, opening the door to records through a system like OCRA is important, and circuit court clerks do the public and the system a disservice by attempting to slam the door shut (after the records have left) via use restrictions on the records.
THE OCRA USE RESTRICTIONS ARE NOT REQUIRED BY STATUTE
As is the case too often in Virginia, the related statutory framework is more complicated than it needs to be. But the statutes regarding access to court records do not require the OCRA use restrictions.
By statute, there is a presumption of public access to court records, including the right to obtain copies. See Va. Code § 17.1-208 (“Except as otherwise provided by law, any records and papers of every circuit court that are maintained by the clerk of the circuit court shall be open to inspection by any person and the clerk shall, when requested, furnish copies thereof…”). The public’s access may only be restricted if government has a compelling interest in doing so and if access is affected “in the manner least restrictive of the public’s interest.” The Daily Press v. Commonwealth, 285 Va. 447, 456, 739 S.E.2d 636, 641 (2013) (link to slip opinion).
It is also the general rule that a clerk “may provide remote access, including Internet access, to all nonconfidential court records maintained by his office,” so long as the clerk maintains proper security (i.e., prevents obtaining confidential information and tampering with records). Va. Code § 17.1-225.
Va. Code § 17.1-293 addresses access over the Internet to records (other than land records, which are addressed in § 17.1-294). Subsection B provides that a clerk shall not “post on the Internet any document that contains” certain confidential pieces of information – Social Security numbers, financial account numbers, birth dates, maiden names, etc. Subsection E sets forth certain circumstances to which “[t]his section shall not apply,” including: (5) providing a person and her counsel secure remote access to cases in which she is a party, and (7) providing secure remote access to attorneys.
Section 17.1-293(H), added in 2012, addresses republication; it provides (in full):
“Nothing in this section shall be construed to permit any data accessed by secure remote access to be sold or posted on any other website or in any way redistributed to any third party, and the clerk, in his discretion, may deny secure remote access to ensure compliance with these provisions. However, the data accessed by secure remote access may be included in products or services provided to a third party of the subscriber provided that (i) such data is not made available to the general public and (ii) the subscriber maintains administrative, technical, and security safeguards to protect the confidentiality, integrity, and limited availability of the data.”
There are several problems with § 17.1-293(H). First, it seems to be an instance of favoritism toward large private entities, in that the second sentence seems to grant special rights of redistribution to private entities like Lexis and Westlaw. Second, it is not clear why secure remote access to public case documents (not containing confidential information) can or should be any more restricted than other access. If you contact a clerk’s office and obtain a copy of a public case document in any other way, you are not required to sign away rights – instead, you may do with it as you please. Third, “this section” (§ 17.1-293) is not what permits the public to obtain and redistribute public case documents – that comes from the public’s rights of access – so subsection H’s purported restriction is both poorly drafted and meaningless.
WHETHER AUTHORIZED BY STATUTE OR NOT, THE OCRA USE RESTRICTIONS ARE INVALID
Whether or not the General Assembly authorized such restrictions in § 17.1-293(H), the OCRA use restrictions are unconstitutional.
The OCRA use restrictions purport to create a prior restraint on free speech – prohibiting sharing of case documents as part of blogging about cases, traditional journalism, and interactions with interested persons (such as witnesses, amici, similarly situated litigants, or a party’s family or friends). Prior restraints are extremely disfavored. E.g., New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) (“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”).
The OCRA use restrictions also interfere with the constitutional right of access to judicial records and are not even close to passing “strict scrutiny,” the test used to judge interference with that right. See The Daily Press v. Commonwealth, 285 Va. 447, 454-55, 739 S.E.2d 636 (2013) (link to slip opinion) (“The public’s constitutional right of access to criminal proceedings and records is well-established…. This constitutional right of access extends to the inspection of documents filed in such proceedings…. The public’s right of access can only be denied upon a strong showing of a compelling governmental interest, and any closure must be narrowly tailored to serve that interest.”).
Arguing that remote access is a benefit for which there may be restrictions on use, and that anyone who does not like the restrictions may obtain records in another way, does not solve the problem because government may not condition grant of a benefit on restrictions on speech or other constitutional rights. See Perry v. Sindermann, 408 U.S. 593, 597 (1972); accord Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 59 (2006).
Were there any doubts that the OCRA use restrictions are invalid, the Supreme Court of Virginia’s decision earlier this year in Hunter v. Virginia State Bar, 285 Va. 485, ___ S.E.2d ___ (2013) (link to slip opinion), is more than enough to dispel them.
In Hunter, the Virginia State Bar (VSB) disciplined a lawyer who maintained a blog on his firm website. Most of the posts on the blog discussed cases in which Hunter had obtained a favorable result for his clients. Among other things, the VSB discipline Hunter for violating Rule 1.6 of the Rules of Professional Conduct, governing attorney-client confidences, by “revealing information that could embarrass or likely be detrimental to his former clients by discussing their cases on his blog without their consent.” Hunter defended himself by maintaining that all of the information discussed on his blog was public and that his blog posts were protected by the First Amendment. The VSB did not contend that Hunter had revealed privileged information; rather, the VSB argued “that lawyers, as officers of the Court, are prohibited from engaging in speech that might otherwise be constitutionally protected.”
On the Rule 1.6 issue, the Supreme Court of Virginia ruled for Hunter, discussing the presumption of open access to judicial proceedings and the fact that Hunter’s speech would have been protected had it come from a journalist or other non-attorney observer. The Court quoted approvingly the following passage from a 1947 U.S. Supreme Court case:
“[a] trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. And we can see no difference though the conduct of the attorneys, of the jury or even of the judge himself, may have reflected on the court. Those who see and hear what transpired can report it with impunity. 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.”
Dismissing the VSB’s attorney-specific concerns as unsupported by evidence, the Court held that “To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections” and that “a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”
The OCRA use restrictions present essentially the same issue as applied to judicial records: may government authorities prevent attorneys from publishing public case records or information contained in them? Hunter makes clear that the answer is no. Therefore, whether sanctioned by statute or not, the OCRA use restrictions (at least as applied to public, unsealed case records) violate the First Amendment and are invalid.