Legislation is likely to be filed during the 2016 General Assembly session to address if digital databases are public records and subject to release under Virginia’s Freedom of Information Act.
The issue stems from a denial by the Office of the Secretary of the Supreme Court of a FOIA request from the Daily Press in Newport News seeking the court case status database. The Supreme Court agency refused to release compiled court records to the Daily Press, but instead required case-by-case requests.
Using one assembled case-by-case by Code For America volunteers covering a single year, the Daily Press found indications of racial bias in plea bargaining and in punishment for probation violations.
“You can’t ask about gaps in the court system if you can’t look at the whole system,” said Daily Press reporter Dave Ress, who has asked the Supreme Court for its records. “Courts are too important for their records to be exempt from that great protection of our democracy, the right to know.”
In an April 2015 opinion, Freedom of Information Advisory Council Executive Director Maria J.K. Everett wrote that the database requested by the Daily Press is a public record. The Council’s opinion is non-binding.
“In our opinion, clearly it’s a public record, if it’s owned, prepared or in the possession of government as it relates to the transaction of public business,” Everett said during a FOIA Council meeting in May. She noted during the briefing that more and more information is being kept in these online databases.
Council Chairman Sen. Richard H. Stuart, R-Montross, said during the meeting he anticipates legislation in the upcoming session to address the issue. Everett said that was one of the recommendations she included in the opinion.
“You need to classify those records and how you want them treated. If you say nothing, as in the Supreme Court issue, there is nothing about who has the right of access,” Everett said. “Absent a specific exemption, it is subject to FOIA.”
Even in the wake of the FOIA Council opinion, the Supreme Court continues to deny Daily Press requests for access to the database.
“Government agencies in the Commonwealth of Virginia do not get to randomly decide to take information once considered public out of the public’s purview because they no longer think it’s their job to share that information,” said Marisa Porto, vice president of content for the Daily Press. “We will continue to try to negotiate to get the information we think is important about our court system. In the meantime, we are considering our legal options.”
Porto was elected president of the Virginia Press Association Board of Directors at the association’s annual meeting in April.
According to the newspaper, Assistant Executive Secretary Edward Macon wrote the office would reject the Daily Press request because FOIA can’t be enforced against it, though he added that the office recognizes “the importance of the information you request.”
However, in the FOIA Council opinion, Everett writes, “Denying access to the complete database while at the same time allowing access to individual case entries does not appear to serve any public purpose, but instead acts as an artificial impediment to access to public records, which stands in contradiction to the stated purposes of FOIA.”