As we recently noted in praising the Fairfax Electoral Board’s transparency, the race to be the next Virginia Attorney General is not over. The current venue is Richmond Circuit Court, where a three-judge panel is presiding over a statewide recount that will take place starting today in Fairfax and tomorrow across the rest of the Commonwealth.
Although there are many cases that have a public impact or are otherwise newsworthy, it’s hard to imagine a circuit court case that the public has more of an interest in observing closely than the recount case (Obenshain v. Herring, Richmond Cir. Ct. case no. CL13-5272). But an erroneous legal interpretation means that if you want to follow that fast-moving case and are not a Virginia attorney who has paid the Richmond Circuit Court for remote access, you’re essentially out of luck.
We applaud Fairfax Circuit Court Clerk John Frey for posting some of the orders from the recount case on his office’s website (H/T @VALW, in this short article). Frey recognizes that this is in fact a high profile case for Fairfax even though the case is taking place in Richmond. And the way in which his office has posted these documents suggests that providing access to orders in high profile cases may become a regular feature on its website.
But Frey is providing only a partial glimpse of the recount case. If you want to see Obenshain’s petition for a recount and his opening position paper (both filed on 11/27); Herring’s answer and brief in response (filed 12/3); Obenshain’s motion targeting Fairfax (and other “non-compliant jurisdictions”) for “special procedures” (filed 12/9); or both sides’ designations of recount teams (filed 12/13), you won’t find them on the Fairfax website. Nor will you find all of the “administrative” orders like the 12/13 Media Coverage Order, which allows still photography (with restrictions) at an important 12/19 hearing but bans audio and video.
What about Frey’s Richmond counterpart, in whose office all recount case records are filed? Not only does the Richmond Circuit Court Clerk’s Office provide no documents from the case on its website, but Clerk Bevill M. Dean has rebuffed efforts to provide documents to the public.
Because Mr. Dean insists that attorneys who have remote access in Richmond promise not to share public court filings or allow them to be posted on any website, and threatens those attorneys with being cut off if they do, we’ve been hesitant to post recount case records, not wanting to prejudice friends through whom we’ve been able to learn about the filings.
So we e-mailed Mr. Dean, asking him to agree that he has no objection to our publication of recount case records, or at the least that he would not retaliate against a remote access subscriber who was willing to share them with us. He refused, making the obviously erroneous claim that Va. Code § 17.1-293 forbids sharing case documents.
We explained that Va. Code § 17.1-293 doesn’t forbid sharing public court records. The most § 17.1-293 does is require redaction of certain sensitive information, which does not exist in the recount case filings anyway. We explained that, if § 17.1-293 did forbid sharing public court records, it would be unconstitutional (in that respect). (On these points, see the past post here.) And we noted that Va. Code § 17.1-225 specifically permits a clerk to provide “remote access, including Internet access, to all nonconfidential court records maintained by his office.” (Circuit court clerks have ample discretion to make nonconfidential documents available to the public even without any statutory permission, but § 17.1-225 gives permission.)
Mr. Dean responded that he wasn’t interested: “Not interested in debating the constitutionality of §17.1-293 – neither the correct time nor the proper forum. It is the law and I am sticking with it.” By which he apparently also means that he’s not interested in correctly interpreting the law. He did offer to e-mail documents upon request – at $0.50 per page. So it could be that he’s hostile to transparency only when he thinks it’ll cost his office a few bucks.
Mr. Dean is hardly alone among clerks who unnecessarily thwart public access and transparency – most (if not all) of the growing number of circuit court clerks that provide attorney remote access through OCRA also force those attorneys to agree not to share public court records retrieved through that system, under pain of being cut off if they do. We’re looking at you George E. Schaefer (Norfolk), Faye W. Mitchell (Chesapeake), Traci L. Johnson (Northampton), Michele B. McQuigg (Prince William), Steve McGraw (Roanoke County), Chaz W. Evans-Haywood (Rockingham/Harrisonburg), Gail H. Barb (Fauquier), John B. Chappell Jr. (Dinwiddie), and Frank D. Hargrove Jr. (Hanover).
We understand that the Office of the Executive Secretary, a central judicial administrative agency that controls OCRA and related systems, may have had some role in encouraging clerks to adopt restrictions, but each clerk is an independently elected constitutional officer who has final say over their office’s records and OCRA subscriber agreement.
Any time a public official is misinterpreting the law and unconstitutionally restricting speech and public access, it matters. This problem also matters because, without remote access, much of the public effectively doesn’t have access. We love our friends in the media, but when it comes to legal proceedings and media reports, the public typically sees through a glass darkly; the primary sources found in case records often are needed to make things clear. Remote access over the Internet is what public access looks like in the 21st century. If Virginia isn’t going to see public remote access to case records anytime soon (and it isn’t), the next best thing would be for any qualified attorney to be able to share documents obtained remotely.
The problem of these clerk-imposed impediments to access could be fixed in a number of ways. The Office of the Executive Secretary could start encouraging clerks to retract the restrictions on public court records. The Attorney General’s Office could be asked for and issue an opinion telling clerks that they need not and cannot restrict attorneys’ speech about, or republication of, public court records. The General Assembly could revise § 17.1-293. Individual clerks are free to do what Mr. Frey has done (posting circuit court opinions and selected other documents in high profile cases) or even more.
The people can solve this too. Elections matter, and clerks are elected officials. The chief job of a circuit court clerk is to preside over the records of the court. In the next clerk election (2015), we encourage citizens to demand that candidates for clerk recognize the importance of, and agree not to oppose, sharing and republication of public court records.
Mr. Dean and some other circuit court clerks may not care to see it, but republication of public records is protected speech under the First Amendment that may be sanctioned only when narrowly tailored to a state interest of the highest order. See Ostergren v. Cuccinelli, 615 F.3d 263, 272-76 (4th Cir. 2010). With respect to the records in the recount case (and others), the U.S. Supreme Court and Fourth Circuit have said it best:
Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. [Id. at 272 (quoting Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495 (1975))]