In virtually every federal court in the United States, members of the public can access court documents — lawsuits, indictments, judge’s orders — from their home computer, at a cost of 10 cents per page. In 37 states and the District of Columbia, according to Courthouse News Service (CNS), the public can also call up dockets and actual legal filings online, often for free.
But not in Virginia or Maryland. In both states, access is granted only to attorneys, and to the individual parties to a case. Now, CNS has filed a lawsuit in federal court in Richmond challenging Virginia’s restricted access to online records, citing First Amendment precedents that guarantee public access to the courts, and 14th Amendment and federal civil rights laws ensuring equal protection for all.
No such challenge has been filed in Maryland, state courts officials said. There, attorneys may access only their own cases — not the full range of criminal and civil litigation that is available for the public to view in person at the courthouse — but not remotely. Electronic access to Maryland court documents, for lawyers, is not available in all counties yet: it is available in Montgomery and Howard counties but is not available in Prince George’s County and Baltimore City.
Similarly, not all Virginia counties offer electronic access to documents for lawyers. Loudoun, Prince William and Arlington counties do, but Alexandria city and Fairfax County do not. But Virginia courts prohibit online access, in all counties, for non-lawyers unless they are parties to a case.
The state has argued that Virginia law prohibits online access in all counties for non-lawyers, unless they are parties to a case, because confidential information might be in a filing. But attorneys for CNS contend that state law does not prohibit such access and that Virginia is interpreting the law overbroadly.
“We have long been complaining about the dual system of access,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government. The courts have said they fear that public users will access people’s private information, whether it’s their birth date or Social Security number, and abuse it. Rhyne said the answer to that is to require lawyers to redact such information before filing a document or posting it online.
“They just have to realize,” Rhyne said of the Virginia courts, “at this point there’s just such a different expectation among the public. Millennials grew up with the Internet, they don’t expect to have to show their face in the courthouse. The courts may have kept up with the technology 20 years ago, but not now.” The news media have relied on the federal court system PACER for 24-hour access to cases big and small nationwide, and lawyers use the 24-hour access to file documents at all hours. There have been few reported examples of abuse of PACER access.
The plaintiff in the Virginia case, CNS, has already had success suing for access to Virginia court documents. The service collects and reports on new lawsuits and filings in courthouses around the country, both for its website and for its subscriber service. In 2018, CNS sued the clerks of the Prince William and Norfolk circuit courts because they did not make new civil suits immediately available. A federal judge in Norfolk ruled last year that the clerks were able to make the lawsuits available and ordered them to do so, saying they “are not at liberty to deny rights guaranteed by the federal Constitution.”
The clerks appealed to the U.S. Court of Appeals for the 4th Circuit, lost and were ordered to pay the attorney’s fees for CNS. The service posted a photo of the check for $2.4 million in fees from the Commonwealth of Virginia after the state paid up.
This time, CNS is suing both Prince William Circuit Clerk Jacqueline C. Smith and Karl R. Hade, the executive secretary of the Virginia Supreme Court, which oversees the online court records management for the state courts. And it is asking Senior U.S. District Judge Henry E. Hudson in Richmond to rule that the Virginia law limiting public access to the online records is unconstitutional.
The law states that no clerk shall post on the Internet certain personal information including an actual signature, a Social Security number, a birth date, financial account numbers or the name and age of a juvenile. The law provides an exception, allowing clerks to provide “secure remote access” to “members in good standing with the Virginia State Bar and their authorized agents” and to individuals who are party to a case. The remote system developed by the state Supreme Court is called the Officer of the Court Remote Access, or OCRA — seeming to exclude members of the public from the start.
The law also states that any data remotely accessed may not be “redistributed to any third party,” and subscribers must ensure that “such data is not made available to the general public.”
Smith cited the law in defending her refusal to allow CNS to have online access to Prince William’s circuit court records. “Absent a change in the OCRA system or the governing statute,” Smith’s attorney John Altmiller said, “I don’t see how a circuit court clerk can give CNS or any non-attorney access.” Altmiller noted that attorneys who abuse such access are subject to state bar or local court discipline, while members of the public and media are not.
Smith sought an opinion from the Virginia Attorney General’s Office, and received a response in June from an assistant attorney general, which did not have the same status and weight as a formal attorney general’s opinion. In that response, Assistant Attorney General Robert B. McEntee III wrote that because documents in Virginia’s OCRA contain private information, it “must be restricted to officers of the court.”
McEntee then was assigned to defend Hade, the Supreme Court secretary, and argued that the Supreme Court doesn’t control the individual websites operated by each circuit clerk, and so doesn’t control access to them. Lawyers for CNS responded that the high court serves as the administrator of the circuit court system under state law, and provides the technology platform through which circuit clerks grant access to OCRA.
“Attorney General [Mark] Herring supports public access to eligible court records and other filings,” spokeswoman Charlotte P.L. Gomer said. “The General Assembly is responsible for limiting who has access to these online court records.”
Lawyers for CNS said that requiring its reporters to physically visit courthouses to obtain documents, which can be viewed at any time by lawyers, is financially burdensome and logistically difficult. “It is simply not possible,” attorney Jon Ginsberg told CNS, “for a news service, such as CNS, to send reporters on a daily basis, if at all, to the 120 courts throughout Virginia … This impediment to access undermines the benefit of public scrutiny and effectively results in suppression, all while one subclass of the public can review new filings remotely on a daily basis.”
Nearly all circuit courts in Virginia provide remote public access to the dockets of individual cases through a Supreme Court-run system, though Fairfax and Alexandria are not part of this system and require separate subscriptions. But none of them provide remote public access to actual documents.
Such an arrangement “is less than ideal,” said CNS founder and editor William Girdner in an affidavit, “because, without access to the actual complaint, CNS cannot fully inform its subscribers and the public regarding who has been hauled into the courts and why. This, in turn, suppresses the ability of lawyers, professors, law students, news reporters, and readers of our New Litigation Reports and website to know about and freely discuss a new legal contest pending in a public court of law.”
This report originally stated that Virginia law prohibits public online access to court documents. Virginia law prohibits such access to documents with confidential information. Since documents with such information are routinely filed, Virginia’s clerks have interpreted the law to mean that no documents should be publicly available online.
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