So much for transparency in the governance and operation of the court system of the Commonwealth of Virginia.
Late last month, the Virginia Supreme Court announced new rules pertaining to the state’s Freedom on Information Act and how the law pertains to the judicial system, from juvenile and domestic relations courts to circuit courts, from general district courts to the Court of Appeals of Virginia, from clerks’ offices around the state to the state Supreme Court itself.
The bottom line? FOIA, the state’s sunshine laws giving the public the right to pry information from government officials if it’s not freely forthcoming, does not apply to the state judiciary.
The high court decided Virginia’s courts and court officials simply are not subject to the same level of scrutiny the other two branches of government are. The public can request information, of any type, from the legislative and executive branches and from local government bodies. But when it comes to judges, the various clerks of court (juvenile, general district and circuit), they’re above the law.
According to the justices’ new rules, administrative records of judges, magistrates and local officials involved with promulgation of wills and oversight of estates are exempt. Written communications between court officials are exempt. The records of the Office of the Executive Secretary, an agency the General Assembly created to administer the judicial branch, are exempt. And any and all electronic records used to create and issue court orders are off limits.
(We must be clear, however, that case files remain open to the public and the news media.)
Del. Mike Mullins, a Newport News Democrat who led a bipartisan group of legislators in 2018 to work on legislation addressing transparency in the court system, was less than impressed by the high court’s new rules. Speaking with the Daily Press, he was blunt in his assessment: “You could drive a truck through these [rules].”
And he’s right; these rules are designed for the benefit of judges and court officials, certainly not the public.
The battle over court openness began more than three years ago when the Daily Press embarked on a statewide investigation project examining the differences in sentencing across the state, with an eye toward the defendant’s race and what type of legal representation the person had. The paper’s reporters discovered there was a tremendous discrepancy between counties regarding how such records were assembled and maintained, but that there was also a much more sophisticated database at the Supreme Court level. The paper sued for access to that database, but lost in court. From that legal battle, came the effort in the General Assembly to address transparency in the court system.
And not just the judicial system’s case records shielded from the public: The new rules put information about the court system’s finances and administration off limits to the public. Why the justices enacted these sweeping rules is anyone’s guess, but we believe they went much further than the Assembly intended in 2018. We hope, in 2020, legislators revisit the matter and pry the courts open.