Transparency News 1/26/18

January 26, 2018
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Please contact the members of the Senate Courts of Justice Committee -- ESPECIALLY if one of the member is YOUR senator -- to express your opposition to SB727.

Sen. Mark Obenshain (Chairman) 
Sen. Richard Saslaw 
Sen. Thomas Norment
Sen. Janet Howell
Sen. Louise Lucas 
Sen. John Edwards
Sen. Ryan McDougle
Sen. Richard Stuart
Sen. Bill Stanley
Sen. Bryce Reeves 
Sen. Ben Chafin
Sen. Creigh Deeds
Sen. Glen Sturtevant
Sen. Chap Petersen
Sen. Mark Peake

SB727 proposes to take all courts (from general district all the way up to the Supreme Court) as well as the Office of Executive Secretary (the courts' administrative arm) entirely out of FOIA.

Public access to court case records is guaranteed by the First Amendment and is accomplished through a series of online subscription services and in-person visits to the local courthouses.

These case law files are NOT subject to FOIA and so are not affected by the bill.

But, the courts and the OES have other records, too, and for years we've operated under the notion that these other records ARE subject to FOIA.
  • Records about the courts' performance, for example, statistical and aggregate data about case and outcomes or evaluations and reports about the effectiveness of various court programs.
  • Records about the court as a government agency spending taxpayer money, for example, payroll data procurement records, service contracts and the like.
For years, the clerks of court have operated under both FOIA for their administrative records and another title of the Virginia Code (Title 17.1) for their court case (and land) records. See § 2.2-3703(A)5).

The bill (and the Supreme Court -- read the stories below) says that the Supreme Court will write rules to govern access to these other categories of records. But NO RULES HAVE YET BEEN WRITTEN. That means, if the bill passed, there would be a vacuum where the public would have no guaranteed means of holding the judicial branch accountable to the public that it serves until the Supreme Court writes its rules.

This would be an unacceptable state of affairs for any other agency, and the courts are no different.

A conversation is warranted, but making a policy change of this magnitude without prior vetting is the wrong approach.

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Facing a handful of legislative plans for public access to court records, the Supreme Court of Virginia says, in essence, “Leave it to us.” In a Jan. 23 press release, the court said it will promulgate a court rule concerning public access to judiciary records on or before Dec. 1. The court also said it is committed to working with clerks, legislators, attorneys and other interested parties to develop statewide access to online case information by July 1 of next year. At least one legislator said he welcomed the rare public pronouncement from the court on an issue under debate at the legislature. The court’s statement appeared timed to deflect legislative directives on access to courthouse records. At least five bills at the Capitol seek to remove barriers to public access through various means.
Virginia Lawyers Weekly
The Supreme Court’s plan bears resemblance to two bills by Del. Greg Habeeb, R-Salem. The first provides for a free system that allows online lookup of court documents related to criminal cases. The second creates a statewide electronic filing system for civil court cases with a subscription-based model that charges users an annual fee.  “My impression is that the court gets it,” Habeeb said. “What the letter says to me is the Supreme Court recognizes the need to address these issues. Their actions have also backed that up in their willingness to work with us on legislation.”
The Roanoke Times
editorials & columns
quote_3.jpg"When it comes down to it, the judiciary just isn’t special."
The judiciary claims that the bill would respect the separation of powers.  But the General Assembly is Virginia’s policy-making branch and is directly responsive to the people, unlike the judiciary.  As Chief Justice Lemons wrote in a 2016 Supreme Court decision, the elected Executive and Legislative Branches have the dominant role in defining public policy and are where “public policy should be shaped.”  The General Assembly should regulate the courts.  And, in fact, the General Assembly does so all the time.  The central judicial bureaucracy, the Office of the Executive Secretary, was created by statute, and there are literally hundreds of sections of the Code of Virginia regulating Virginia’s courts and clerks at every level, from the Supreme Court down to General District Courts.   For a sanity check, ask delegates and senators whether they would favor completely exempting the executive branch from FOIA and letting the governor write rules for public access.  After all, the executive is a separate branch of government too. When it comes down to it, the judiciary just isn’t special. 
Guest column, VCOG Blog

The judicial database, and the information it contains, is of vital interest to the public and the news media. In the past, we have agreed with the argument our colleagues at the Daily Press have made for the records to be subject to FOIA. But the court’s 2017 ruling against forcing release of the data threw the ball into the legislature’s court. That venue, we believe, is where the matter should be hashed out. This is public information that should be readily and easily available to the public. Amending FOIA to reflect this fact is the job of the state’s elected leaders, not judges who seemingly want to restrict access. It is time for the Supreme Court to cease its efforts to keep Virginians in the dark about their courts.
Register & Bee

In the name of justice and public safety, it is routine for police departments and law enforcement agencies to share information about criminals and suspects. It is counterintuitive then that these same agencies would not, or could not, share information about those within their own ranks who potentially pose a risk. And yet, in Virginia a law enforcement officer fired for serious misconduct can apply for work in another community without worrying that the police chief or sheriff will learn about past misconduct. There are rules that prevent their human resources department from sharing that information. Del. Marcia Price, D-Newport News, hopes to change that with proposed legislation that would require chiefs and sheriffs to provide that information about officerswho were arrested or sued for misconduct. Her bill would require disclosure of any internal investigation.
Daily Press

The Facebook page (on the front of this week’s Messenger) belongs to new Charlotte County School Board member Teresa Dunaway. It is an invitation only page which means members have to be invited to be a member. The page was started In May of 2017, has 383 members including all five school board members who voted to non-renew Charlotte Superintendent Nancy Leonard’s contract. Citizens are concerned because any time more than two board members meet (including electronically) constitutes a meeting, minutes must be kept and the public must be notified of the meeting in advance. Other citizens are concerned at the lack of African Americans in the group.
Southside Messenger