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Federal court to hear arguments over access to court records in Virginia

Building with large windows
Peter Aaron/Peter Aaron
Richmond's federal courthouse for the Eastern District of Virginia. (Photo in public domain)

Update: After publication, the hearing was rescheduled to Jan. 10.

On Tuesday, a federal court in Richmond will hear arguments in a lawsuit against the state of Virginia over it’s policy of barring the public from accessing court records remotely.

The national legal publication Courthouse News Service sued the Executive Secretary of the Supreme Court of Virginia and the Clerk of the Circuit Court for Prince William County in September over the practice. The complaint alleges the law discriminates against the press and violates free speech under the First and 14th Amendments. 

Unlike most states and the federal court system, Virginia law only grants remote access to attorneys and their staff. Members of the public, including the media, must travel in person to the courthouse where the relevant lawsuit was filed to access civil, nonconfidential, public court filings. 

That can be challenging for people like Brad Kutner, who’s the Richmond reporter for CNS.

Almost daily, he visits state courts in Richmond, Chesterfield, Henrico and Hanover, takes a seat at a public terminal in the clerk’s office and accesses the latest filings. 

“These cases can deal with civil rights issues, or they can deal with even smaller issues like complaints against plumbers or mechanics shops,” Kutner said. “Limiting the public’s access to these filings keeps us out of the loop. It keeps journalists out of the loop obviously, but it keeps the public out of the loop as well.”

The state does have a publicly accessible database that allows access to some case data, including parties’ names and dates. Many details, including the complaints themselves, are not on the database however.

The news service maintains a database of daily civil court filings that’s accessible through paid subscriptions. But it also publishes staff-written news reports and commentary at no cost to readers.

Of Virginia’s 120 circuit courts, CNS says in the complaint that it is able to cover only 18 on a semi-regular basis. The remaining circuit courts, it says, are too remote to justify sending reporters every day.

CNS says it’s willing to pay a subscriber’s fee to access the statewide database. The complaint notes that in Prince William, it costs $200 per year for an attorney and one support staff to have access to the state’s database, OCRA. Access for each additional employee costs $75 annually.

Both defense teams have filed motions to dismiss the lawsuit.

Lawyers for Karl Hade, Executive Secretary of the Supreme Court, said because of his official capacity as an officer of the state, Hade is immune from civil lawsuits. Their motion also says the executive secretary doesn’t have the authority to grant or deny access to any circuit court’s records; they argue that authority lies with the circuit clerk.

Prince William County Circuit Court Clerk Jaqueline Smith’s attorneys argue in their motion that while the U.S. Supreme Court has upheld the First Amendment right to access criminal trials, it has not specifically held that the same right applies to civil cases. It adds the documents aren’t being restricted so much as the method of access. 

Whittney Evans is VPM News’ features editor.