Virginia Public Access to Court Records Grows

Virginia State Capitol buildings

Thanks to some articles on Medium.com we learned that the Virginia courts have opened court records to online access and bulk download last week.  This follows years of litigation from news media organizations that resulted in a Virginia Supreme Court ruling in 2017 denying access.  However, in the interim political pressure resulted in first the Virginia Supreme Court announced on January 23, 2018, that they would “promulgate a court rule concerning public access to judiciary records on or before December 1, 2018, and later legislation requiring that “bulk data” be made available.

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The start of the quest for Virginia’s court data was a regionally based analysis done by our local newspaper, the Daily Press that tried to look at potential racial disparity criminal sentencing.  Their initial analysis seemed to indicate that there could be an issue, but there was not enough data to make a definitive finding.  Therefore, a multiple year effort ensued by the press and freedom on information advocates to encourage and later force the court to expose their data online.

My colleague, Bill Raftery of the Gavel to Gavel Blog fame noted that while Virginia now puts all their criminal and misdemeanor (not civil yet) data online, there may be some potential problems with usability. Specifically, it is not easy to discern whether a case has been dismissed or not from the list view.  One must click on the case item to access the CMS record to see that information.

Bill further writes that there have been two ways other states have tried to handle the not guilty/charges dropped issue:

1) New Jersey won’t post criminal information online until you are found guilty or take a plea.
2) Alaska will pull the information offline if you are found not guilty, charges dropped, etc.

Newspapers and good government groups objected to these practices; the argument being that while privacy is important, it is just as important to see if certain police departments were arresting/ticketing people who were not being found guilty at the end. Law enforcement groups objected because they believed that having this information online would make people safer.

But the other issue is that only at the exact time that the data is viewed/collected from the court is the only time that it is accurate.  This has resulted in problems with the commercial system data collection, and criminal history systems particularly in the past.  The changes in the case results such as sealing/expungement are often not captured and reflected in the non-court systems and therefore results in inaccurate information.

Elsewhere Bill reports that Maine is currently implementing its new case management system and opted to not put anything online (yet).  The objection there was that if the public is paying for the new system, the public has a right to access public records.

For more on these subjects and for reference the NCSC has posted the following resources:

• National Center for State Courts (July 2017) Best Practices for Court Privacy Policy Formulation 
• Council for Court Excellence (April 2017) Remote Public Access to Electronic Court Records: A Cross-Jurisdictional Review for the D.C. Courts 

Balancing public access and privacy is not an easy issue.  Good luck.