Since 1967, the federal Freedom of Information Act (FOIA) has provided the public with the right to access records or information from any federal agency, except those records protected under legal exemptions. Each state has implemented its own public records laws, with differences regarding how such records are retained and who they can be shared with, as well as nuances among state guidelines for response times, exemptions, fees, and which branches of government are included.
In Virginia, the Commonwealth’s “Non-Attorney Access Restriction” provides that Virginia-barred attorneys and governmental employees have remote access to court records in all civil cases through the court system’s online judicial records portal — known as Officer of the Court Remote Access, or OCRA — but such access is denied to the press and general public. Courthouse News Service (CNS) is challenging the policy, claiming that it violates the qualified right of access to judicial proceedings and documents under the First Amendment to the U.S. Constitution.
CNS, which reports on civil cases in all 50 states, filed suit in September 2021 in the U.S. District Court for the Eastern District of Virginia, alleging that the OCRA nonattorney access restriction constitutes an unconstitutional speaker-based restriction on speech that violates the press’ and the general public’s presumptive right of contemporaneous access to civil court records under the First Amendment. The district court denied the news organization’s motion for summary judgment and entered summary judgment in favor of the clerk of the Circuit Court for Prince William County and the Commonwealth of Virginia. CNS appealed the ruling to the U.S. Court of Appeals for the Fourth Circuit, and on December 7, the appeals panel heard arguments from both sides.
Virginia argued that the state met its First Amendment obligations by allowing reporters to access court records by physically traveling to the courthouse from which they are seeking records. The state also cited concerns over privacy risks and the potential for fraudulent use of sensitive personal information that may not be redacted depending on where the record is accessed. However, U.S. Circuit Judge Roger Gregory noted that reporters could still access that information and disseminate it if they went to the courthouse.
CNS, in its February 2 brief, argued that timely access is an essential element of its substantive First Amendment right, and requiring the press to travel prohibitively long distances to obtain records from each individual courthouse is “effectively equivalent to a deliberate statutory scheme of censorship,” especially when online access is available to certain members of the public (i.e., Virginia-licensed attorneys).
In support of CNS, 38 different news organizations, led by the Reporters Committee for the Freedom of the Press, joined an amicus brief urging the appeals court to reverse the district court’s order.
Why It Matters
While this case specifically involves access to civil case court records filed in Virginia state courts, the broader underlying issue of public and commercial access to electronic court records is a significant issue, with state agencies struggling to balance an individual’s privacy interest with the public’s right to know. CNS filed a similar suit in California and, earlier this year, the NAACP agreed to settle their landmark First Amendment litigation against South Carolina Court Administration in exchange for historical eviction records and timely access to all new eviction filings. We expect to see more such challenges being brought to laws and regulations governing how records are accessed, in the coming days. The Virginia case, in particular, is important, as a reversal of the district court’s orders in Virginia may open the door to similar cases in other states.
