In September 2021, Courthouse News Services (CNS) filed a federal lawsuit in the Eastern District of Virginia against Virginia court officials for allegedly violating the First Amendment rights of the press and public by restricting access to newly filed civil complaints. Currently, only Virginia barred attorneys have digital access to newly filed court records through the Officer of the Court Remote Access system (OCRA) for an annual fee of $200. In contrast, members of the public and press can only access these records by in-person requests at Virginia courthouses.

Specifically, CNS brought its complaint against Karl R. Hade, executive secretary of the Supreme Court of Virginia, and Jacqueline C. Smith, clerk of the Circuit Court for Prince William County, VA, alleging that Virginia law gives both entities power to regulate access to newly filed civil complaints. CNS asserts that both defendants have power to grant access to the public and press under Virginia Code §17.1-502(A), which states “[t]he Executive Secretary of the Supreme Court [is] the administrator of the circuit court system, which includes the operation and maintenance of a case management system,” and Virginia Code § 17.1-242, which states that court clerks “have custody of … court records … as well as records stored in electronic format.” The complaint alleges that a court clerk offered CNS digital access to the court records for an annual payment of $1,200, and if CNS agreed not to publicly disseminate or report on any of the records. However, CNS argues that paying the fee to access court records still violates their First Amendment rights because the fee is six times higher than fees paid by Virginia barred attorneys, while still restricting CNS from reporting on the records. CNS requested both declaratory and injunctive relief for the alleged violations.

In his motion to dismiss, Hade notes that “although the First Amendment includes a right to access court records, it does not mandate remote internet access to avoid the inconvenience of a trip to the courthouse.” He also argues that lawyers receiving greater access to newly filed court records than the general public “furthers a legitimate state interest in protecting court records from the ease of exploitation that a limitless internet database would provide.”

The Eastern District of Virginia has not yet issued a ruling on the motion to dismiss, but Troutman Pepper will continue to monitor and provide updates on this case and other cases impacting the right of access to public records.