We’ve noted that the SCC and FOIA have been in the news lately. A little less than two years ago, the Supreme Court of Virginia held that the Virginia Freedom of Information Act (FOIA) did not apply to the State Corporation Commission (SCC). The case was Christian v. State Corporation Commission, 282 Va. 392, 718 S.E.2d 767 (2011) [available at SCV (slip op.) & Google Scholar].
In this post, we will describe the Christian case in detail. Later, we’ll discuss significant errors in and problems with that opinion, and we’ll assess proposed legislation that would apply FOIA to the SCC.
The Mount Vernon Gazette had a great story yesterday by Michael Lee Pope on the hearing that a Freedom of Information Advisory Council subcommittee gave Del. Scott Surovell’s bill to bring the State Corporation Commission (SCC) within the scope of the Virginia Freedom of Information Act (FOIA).
The SCC currently operates largely outside FOIA thanks to a relatively recent decision by another body in Virginia government that’s not transparent: the Virginia Supreme Court. The case is Christian v. State Corporation Commission, 282 Va. 392, 718 S.E.2d 767 (2011) (link to slip op.).
If you find yourself surprised that there are enclaves where open government is not embraced, well, the Hanover Board of Supervisors would probably be delighted if you’d move there.
If you find yourself wanting to scream “but ending secret backroom dealings is the point” at the quotes in the article about how openness would put an end to businesses’ wonderful, informal, secret interactions with the SCC, we’re right there with you.
If you find yourself thinking that no one wants to interfere with the deliberations of the SCC’s commissioners and that there are easy ways to protect the judicial functions of the SCC while still extending FOIA to it, well then you’re getting too logical for the game of government.
The SCC has found itself in the news of late regarding questions about waste and procurement practices, posed primarily by WRIC’s 8News Investigates. Nonetheless, as the story recounts, Del. Surovell’s bill met a chilly reception, thanks to opposition from the SCC and business. We thank Del. Surovell for pushing his bill — we think it’s high time to increase transparency at the SCC (and the courts), including by getting them out of a parallel, less open universe of laws.
We’re happy to celebrate good news for openness. In that spirit, we applaud the Fairfax County Circuit Court.
In a move that seems to have been unannounced and unpublicized, Fairfax has begun to post on its website, without cost or restriction, copies of letter opinions issued by its judges. See http://www.fairfaxcounty.gov/courts/circuit/circuit_court_opinions.htm. Kudos to Clerk John Frey, Chief Judge Dennis Smith, and all others involved in making this happen.
This practice (posting opinions online) is an easy, obvious way to promote judicial transparency and public access to the law. It’s common in federal trial courts but vanishingly rare in Virginia trial courts. To our knowledge, only the Loudoun County and City of Norfolk circuit courts did this prior to Fairfax. (See below for more on Loudoun & Norfolk, and please let us know if you know of any others.) Fairfax is a pretty high profile, high opinion volume court, and we hope that Fairfax choosing to make its opinions freely, publicly available online will start a trend.
Prior to this, Fairfax provided copies of its opinions to a small and privileged group of recipients that used them for profit and imposed restrictions on access (such as Lexis, Westlaw, and Virginia Lawyer’s Weekly). At some point in the past, the Fairfax Bar Association posted opinions, but they transitioned over time to making access to their copies a “members only” perk and to posting the opinions only temporarily.
It is really bad policy for public judicial records to be provided preferentially to certain private persons/entities, who then impose restrictions on use such that these records largely become captive to those private sources over time. Circuit court opinions are an important public judicial resource that easily can be made available to all and that should be made available to all. Fairfax now gets it, and we think that’s wonderful.
A bit more discussion and tech details on Fairfax, Loudoun, and Norfolk after the jump.