The joint subcommittee to study the protection of court records (HJR89) wrapped up its first year with five proposals to submit to the 2003 General Assembly.

Chaired by Vienna Republican Jeannemarie Devolites, the committee agreed to ask the General Assembly to extend the study commission for an additional two years. Committee members became increasingly aware that the simple description "court records" encompassed scores of subissues that could not be resolved in five meetings.

Speaking at VCOG's annual conference Nov. 15, committee member Rob Baldwin, who is the Executive Secretary of the Supreme Court, said the committee had decided to make a comprehensive study but had also decided to address certain hot-button issues.

Those hot-button issues include:

" A proposal to create a confidential "cover order" for divorce cases to protect Social Security numbers and credit-card and bank account numbers. Committee member and attorney Mark Barondess suggested that the presumption of open court records should be reversed in divorce cases, but his proposal was carried over for further study.
" A proposal to require a subscription fee for access to online, bulk-record databases. This proposal was suggested as a way to prevent anonymous, perhaps nefarious, uses, though committee member Del. Sam Nixon of Chesterfield said the committee shouldn't kid itself that this would seriously solve problems related to invasion of privacy. "Plenty of bad people are willing to plunk down the money to get the information," he said.
" A proposal to allow clerks of courts to refuse to record deeds of trust or other land records that have a Social Security number on them. Attorney General Jerry Kilgore may have assured its passage with a December letter opinion to Wise County/City of Norton Clerk of Court Jack Kennedy. He said clerks can't refuse to accept public documents just because they include a Social Security number, but that any attempt by a clerk to redact the SSN would subject that person to possible liability for manipulating public data.
" A proposal to forward a letter to the State Compensation Board, seeking clarification of policies for use of money from the clerks' Technology Fund. Several clerks testified before the committee in October, saying they are being pressured by citizen demands of privacy on the one side and the link between Technology Fund monies and putting records online.

The issue rose to such prominence when a Hanover County activist started a grass-roots campaign to remove land records from the Internet. At the Sept. 18 committee meeting, Betty J. Ostergren described her alarm upon discovering individual SSN and signatures on land records posted to the Internet. She then began contacting individual citizens in Hanover and around the state, alerting them to what she considers a dangerous situation.

At the VCOG conference, Baldwin was sympathetic to citizen concerns, but also stressed why it was important to have access to court records. Openness is a guard against the noxious proceedings of the pre-Colonial Star Chamber. Access to court records also sheds light on whether litigants receive equal treatment, whether the courts are being good stewards of public funds, whether judges are acting fairly and whether rights and liberties are being protected.

Should the General Assembly reauthorize the committee, it will have its work cut out for it. Policy decisions will have to be made regarding three types of court records: documents in civil and criminal court cases; documents kept by the court but which aren't part of cases, such as land records and marriage licenses; and documents kept by entities but which the court has access to.

Each category has several permutations, too. For instance, should records in juvenile cases be treated the same as in criminal, bankruptcy, divorce cases or garden-variety civil cases? How or should courts make their databases available for purchase? (The Kilgore opinion to Kennedy makes clear that access to computer databases is guaranteed by the Virginia's Freedom of Information Act.) How should access rules be reconciled with the steady expansion of rules encouraging court documents to be filed electronically? Is there a difference between electronic access to records at the courthouse and records available by "remote access" via the Internet or a dial-up bulletin board? Should Virginia follow the model guidelines proposed by the national project (see above) or start from scratch?

The committee's other members include vice-chair Sen. Bill Mims (R-Loudon), Sen. Leslie Byrne (D-Falls Church), Del. Robert Bell (R-Charlottesville), Del. Chip Woodrum (D-Roanoke), Rosanna Bencoach of the State Board of Elections and the FOI Advisory Council, and Norfolk Clerk of Court Al Teich Jr.