The mess at OES

If you care at all about open government in Virginia, you should be closely following the ongoing saga of the Daily Press’s attempts to get case information in bulk from the judicial branch and, most notably, the remarkable extent of resistance to transparency being displayed by the Office of the Executive Secretary (OES). Daily Press reporter Dave Ress, who (along with his colleagues) deserves a thank you from all of us, recently released OES’s May 14, 2015, letter declining to provide a copy of the case information database, despite the recent FOIA Council advisory opinion that OES should do so. This post examines OES’s 10-page, single-spaced, everything-and-the-kitchen-sink, anti-openness letter.

Background

OES is an administrative agency in the judicial branch and a key part of the judicial branch’s staff. The Supreme Court of Virginia is at the top of the judicial branch hierarchy, so it appoints the Executive Secretary himself and generally has the power to oversee OES.

Among other things, OES runs judicial branch technology, including the systems that contain circuit court case information and records. Almost all circuit courts (118 out of 121) now use an OES system to provide public access to some basic information about cases. A smaller but growing number of circuit courts use a parallel but separate OES system (“Officer of the Court Remote Access,” or OCRA) to provide Virginia lawyers – and only Virginia lawyers – with electronic access not just to information about the case but to actual copies of non-confidential case filings. See, e.g., the Richmond Circuit Court Clerk’s webpage on OCRA.

Both the public and attorney-only systems are embarrassingly bad. The user interface is awful. You can’t search by anything other than party name and case number, so you really have to know what case you’re looking for before you start. And you access and search each circuit court separately, so you also have to know exactly where a case is before you start. (But see vacircuitcourtsearch.com, a private system that fixes that particular problem.) The organization of the data that’s displayed in the OES systems doesn’t make much sense. The different descriptions and abbreviations that show up in the data lack apparent rhyme or reason.

In short, to those who (justifiably) complain about the shortcomings of the federal courts’ PACER system: lawyers in Virginia state courts can only dream of having it so good.

OES’s LETTER

As you might expect from such a massive missive, OES throws out a wide array of arguments in resistance to the Daily Press‘s reasonable request.

Don’t ask us; ask the 121 clerks

OES’s letter contends that anyone seeking records from the circuit court case information systems must obtain those records from the clerks because the clerks are the custodians and OES is not.  In the past, OES’s attempts to invoke the FOIA exemption for “[t]he records required by law to be maintained by the clerks of the courts of record,” Va. Code § 2.2-3703(A)(5), may have been puzzling.  Now, OES at least has put together a plausible argument based on clerk statutes in Title 17.1 and Va. Code § 2.2-3704(J) that it is merely storing the clerks’ case records.

We still have questions:

Are records in OES’s systems the actual records that are required by law to be maintained by the clerks, or not? OES’s letter says yes, presumably to support OES’s invocation of § 2.2-3703(A)(5), but subscriber agreements to OCRA, the attorneys-only system, call that into question. Those agreements pointedly decline to say whether the records in OES’s sytems are the official records required by law (“The information or data accessed by Subscriber may or may not be the official governmental record required by law. In order to assure the accuracy of the date or information, the Subscriber should consult the official governmental record.”). The agreements also refuse to “expressly or impliedly warrant that the information or data accessed by Subscriber is accurate or correct.” So, which is it OES — are your systems offering up the required, official records or not?

Should Virginia modernize its judicial system’s structure for the electronic age?  For a long time, it was undoubtedly reasonable to treat circuit courts as separate, not as distinct parts of a central system. But in the 21st Century, it’s ridiculous to maintain that Virginia consists of 121 local court fiefdoms. Notably, lawyers don’t have to qualify to appear in circuit courts separately – one admission to the Virginia State Bar qualifies them to appear in all. Law firms can and do practice across the Commonwealth, even in circuit courts that are not particularly close to one of their offices.  The public can attend a proceeding in any circuit court.  Why should case records be treated as 121 separate vaults electronically?

But, regardless of the answers to remaining questions, OES’s letter reinforces the importance of the clerks. It’s time to lobby those clerks for improvements in access. It’s time to question them about access. It’s time to elect only clerks who favor real public access.

Databases are different

Va. Code § 2.2-3704(G) says that whole databases cannot be withheld from the public when only part of the information in the database is exempt and says that public bodies are to work with requesters to arrange the production format.  At the same time, it provides that public bodies need not produce records in a format not regularly used by the public body.

OES’s letter reads § 2.2-3704(G) in an aggressively anti-transparency way, saying that anything other than its current systems would require creating a whole new database, which the statute doesn’t require. That doesn’t pass a technological smell test. OES already has created system interfaces that query the database to produce public information. Those queries should be able to be repurposed, with minimal effort, to execute an automated dump of that public data into one or more files that the Daily Press and others can work with. Instead, OES says it’ll take “over 250,000 hours” to review each case individually to generate data for the Daily Press. That’s nuts.

Similarly bizarre is OES’s attempt to use confidential and expunged case records as a shield. OES has already written the queries and code that exclude all of that information – in the public and attorneys-only system interfaces that already exist. Given that the Daily Press only wants that public information, where’s the problem?

As FOIA Council Executive Director Maria Everett noted at the FOIA Council meeting this week, more and more information is being kept in databases. (Indeed, modern email and document management systems are really just big databases with fancy interfaces.) It is essential that people who value openness and have some technological expertise are able to contribute to improving how FOIA treats databases.  It is equally essential that those, like OES, who dislike openness and produce inexplicably poor technology are not able to hoard nonconfidential government data.

Technology is scary

It’s fascinating to see an office whose job includes maintaining electronic records sow FUD about technology. OES’s letter warns of “the increased threat of identity theft and internet fraud that accompanies electronic records generally.” Umm, thanks guys.

It’s true that electronic access will give more people access to more stuff than would exist if you had to visit each circuit court and get stuff on paper. But why is that bad in this case? What security are we concerned about? Again, the Daily Press and others only want access to non-confidential case information and records — to which the public has a well-established constitutional and statutory right of access.

The statute that requires access actually doesn’t

Va. Code § 17.1-208 provides that circuit court clerks’ records “shall be open to inspection by any person and the clerk shall, when requested, furnish copies thereof” subject to a fee. It’s a nice statutory complement to the constitutional right of access to case records.

But according to OES, § 17.1-208 really means that clerks need only provide “reasonable” access whenever they get around to it.  It is true that § 17.1-208 contains a safeguard against abuse — against copying “to such extent, as will, in the determination of the clerk, interfere with the business of the office or with its reasonable use by the general public.” But in OES’s bizarro-world, this rarely-applicable safeguard becomes a rule that clerks “may not be required to produce public records on demand or even within five working days.” In effect, says OES, you should be thankful when you get anything.

You got no right at all (to electronic copies)

We’ve written before about how clerks point to Va. Code § 17.1-293(H) to justify prohibiting those who obtain case records electronically from sharing or reposting them, how reading that statute as a prohibition on access or distribution is wrong, how it’s unconstitutional to control and restrict speech about records, and how the gratuitous restrictions obstruct access to key cases.

OES’s letter ups the ante on misreading § 17.1-293 – according to OES, this statute “makes it clear that with respect to electronic records the clerk is not required to provide electronic access or duplicates.”  Wow. Just wow.

OES (and all other parts of the judiciary?) aren’t public bodies

OES’s letter argues that the word “legislative” in Va. Code § 2.2-3701’s definition of “public body” “suggests an intent to exclude the Supreme Court, including its administrative office, from VFOIA.” This makes no sense. If “legislative” actually means only the legislative branch, as OES suggests, then everyone in the world has been wrongly reading FOIA to apply to executive branch agencies.

There doesn’t seem to be any definitive law on point, but there are two obvious readings to the word “legislative” that make far more sense than the reading OES advances:  (1) The word “legislative” is a qualification only on “body”, not on the rest of the words listed in the definition. In other words, a public body is a “legislative body”, an authority, or a board, and so on.  (2) The word “legislative” means that the various words in the first part of the definition refer to entities established or given authority by statute.

Aside from butchering yet another statute, OES musters up only one thing in support of its argument here – a 1995 decision by an intermediate Illinois appellate court (which isn’t even the final word in Illinois, let alone Virginia).  But it’s not even clear that this case and comparison helps OES.  The Virginia Freedom of Information Act does “reference” the courts and judiciary – see the very clerks exemption that OES claims elsewhere in the letter, Va. Code § 2.2-3703(A)(5).  And the Virginia statute omits the word “executive” in the definition, a significant difference from the Illinois statute.  When all you’ve got is an out-of-state case that can’t even be persuasively stated in your letter, you don’t have much.

OES is above the law

We’ve written before about the appallingly bad decision of Christian v. State Corporation Commission, 282 Va. 392, 718 S.E.2d 767 (2011), in which the Supreme Court of Virginia concluded that FOIA’s failure to specify a channel to sue the State Corporation Commission meant FOIA didn’t apply to the SCC.

OES is all over that.  FOIA “does not include a constitutional enforcement mechanism application to the Supreme Court of Virginia” says OES’s letter. And, in a nifty sleight-of-hand, OES says that means you can’t sue OES either because OES is “an arm of the Supreme Court of Virginia.”

The idea that OES is above the law is convenient for OES and fits with OES’s “any port in a storm” approach to resisting openness. It doesn’t fit with the principles in the Supreme Court of Virginia’s opinion in Hunter v. Va. State Bar, 285 Va. 485, 744 S.E.2d 611 (2013), which approvingly quoted the following remarks from a 1947 U.S. Supreme Court case:

“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.”

Virginia’s justices and legislators need to determine whether administrative offices in the judiciary are above the law or not.  And the justices in particular need to decide whether they want judicial branch staff claiming special privileges against openness.

This is just like the governor’s phone records

For another flavor of the judiciary-is-special approach, OES argues that applying FOIA “would violate the principle of separation of powers.”  OES’s letter cites Taylor v. Worrell Enterprises, 242 Va. 219, 409 S.E.2d 136 (1991).

In Taylor, the requester wanted the monthly phone bills of the Governor’s Office, and in particular the detailed call logs in those bills. Noting that the metadata in phone call logs contains “substantive information” (hello, NSA!) and that release “could have a chilling effect on the Governor’s use of the telephone for conducting the Commonwealth’s business,” the Court held that “Compelled disclosure of that data impairs, though it does not completely destroy, the ability of the executive to perform his constitutionally required duties.” That potential disruption, the Court said, was not outweighed by the open government policy in FOIA.

If you’re wondering how disclosure of case information to which the public has constitutional and statutory rights of access and which is already made public in other forms is anything like the Governor’s phone records, we’re right there with you. But again, OES will do anything to avoid openness, so this isn’t really a question OES cares to ask (much less answer).

Pay no attention to another FOIA Council opinion (or two)

FOIA requires that a request “identify the requested records with reasonable specificity.” Va. Code § 2.2-3704(B).  FOIA does not impose any limit on the number of records that a requester may obtain.

The FOIA Council has made an important and sensible distinction between specificity and volume.  If a request is “vague and easily susceptible to multiple interpretations,” it is not reasonably specific.  See Advisory Opinion AO-03-08. On the other hand, if the public body “know[s] what records the requester seeks, but [the request] also appears to be voluminous and as result, likely to be very time-consuming,” that request is reasonably specific. See Advisory Opinion AO-02-14.  Says the FOIA Council, “the volume of a records request may be the cause of increased charges for production, and may be grounds for a public body to seek additional time to respond. However, volume alone is not grounds for denial of a request.” Id.

OES says the exact opposite – that a request for “all records in the CMS which contains over seven (7) million case records is not” reasonably specific. The idea that a request can simply be denied because it reaches some unknown too-many-records threshold should be of great concern, especially in today’s day and age, where electronic records are generated on a scale previously unknown in the paper records era.

The bottom line and where we go from here

OES’s bottom line is this (with a lot more lawyer-talk and less gravelly, dramatic flair). Fortunately, OES doesn’t have the last word, and everyone can have a role in cleaning up the mess at OES:

  • Lawyers, individually and through bar associations, and others in a position to do so should use their relationships with policymakers to lobby for technology and transparency improvements. It’s not just the Daily Press. All of us can benefit from better access to judicial records.
  • Media need to use their megaphone to press policymakers, including the justices of the Supreme Court of Virginia, for change. The Daily Press got a great start on this recently, but there’s much more to be done. When the justices speak in public, they should be asked about the judicial branch’s lack of openness in practice, and interviews should be sought with the justices in order to go beyond what individual public questions may allow. (Indeed, a minute or two spent Googling 2014 columns in the Richmond Times-Dispatch can get you an email address for Justice Mims. Why not write him – respectfully – about this?  Send a copy by snail mail to Chief Justice Lemons too.)
  • Voters need to elect circuit court clerks who are committed to openness and push existing clerks in that direction. Clerks are constitutional officers with significant power regarding case records. If even a small group of clerks were to push for improved technology and openness, their authority and position inside the judicial branch would make change far more likely.
  • Last but not least, General Assembly members and the Governor should demand that the judicial branch embrace technology and openness, through statutory changes but also through other opportunities for influence.  (For example, applicants for positions on Virginia appellate courts should be asked about access and technology.)  Sensible court administrators would favor the efficiency and other benefits of openness already, but the administrators at OES plainly need a strong push.

Dave Ress says that the Daily Press is still considering all its options but isn’t going to let this go.  Neither should the rest of us.

 

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