Now that the Senate Judiciary Committee has passed a bill that would allow the public free access to federal court records, in part to ensure people with low incomes have access, some say one of the nation’s wealthiest counties, Fairfax County, Virginia should do the same for its circuit court.
“In Fairfax County, these records are behind a paywall that costs you hundreds of dollars a year,” said Jim McElhatton, a private investigator and longtime journalist.
While all other Northern Virginia jurisdictions provide free, remote public access to basic docket information for individual criminal and civil cases in circuit court, Fairfax County’s CPAN system costs $150 per quarter, or $600 per year.
“It’s concerning anytime you have a system in which access to judicial records is based on your ability to shell out hundreds of dollars a year — it really does tilt the scales of justice,” said McElhatton.
Most circuit courts in Virginia provide access to basic docket information through a platform run by Virginia’s Supreme Court. The City of Alexandria provides the basic docket information through its own system.
“It’s stunning to me that one of the most affluent counties in the country would charge what really seems like predatory rates to provide access to records that aren’t government records, they’re public records,” said McElhatton.
Members of the public, including media, can access circuit court records for Fairfax County, in person, in the clerk’s office in the courthouse.
“People who don’t have $600 a year to do a court search really have do take off a half day of work and go spend a day at the courthouse to chase this stuff down,” McElhatton said.
While free, remote access is available to basic docket information for most jurisdictions in Virginia, and all of Maryland, the District of Columbia’s online case search for Superior Court provides free access to each document filed in a case. In Virginia and Maryland, accessing specific documents necessitates a trip to the clerk’s office.
“With Fairfax you don’t even know if the case exists or not until you actually go to the courthouse and check,” said McElhatton.
The District of Columbia’s system of providing access to actual documents is similar to the federal PACER — Public Access to Court Electronic Records — system, which currently costs 10 cents per page, although the Senate action is a step toward making it free.
However, Virginia is arguing in a federal lawsuit, filed by Courthouse News Service, that state law precludes posting specific circuit court documents with confidential information.
While McElhatton would support the additional transparency and convenience of being able to access actual documents remotely, at minimum he said he believes Fairfax County should be providing basic docket information remotely.
“You can easily provide access to basic case information online, which almost all other jurisdictions do,” McElhatton said. “If the Commonwealth of Virginia is telling the public that this can’t be done, they need to open up their eyes and look across the rest of the country.”
County budget information shows the CPAN system brings in about $377,000 per year in fees. McElhatton said a wealthy county like Fairfax County can easily absorb that amount, without charging the public.
“Most jurisdictions have long since provided the public access to these important public records, and the way to do it is not put it behind a very expensive paywall,” said McElhatton.
WTOP sent several emails seeking comment from Fairfax County Clerk of the Court John Frey, without response.
Fairfax County Board of Supervisors Chair Jeff McKay released a statement to WTOP: “The cost to access County Circuit Court records virtually is determined by the Clerk of Court, not the Board of Supervisors. The Clerk is elected by the residents of Fairfax County and represents the County’s 1.2 million people. Circuit Court records can be accessed in person at no cost. Moving forward we plan to work with the court system to improve opportunities for transparency and remote access.”
Benjamin Shnider, spokesperson for Commonwealth’s Attorney Steve Descano said: “Transparency continues to be a priority for Commonwealth’s Attorney Descano. If there is anything our team can do to help the Clerk’s office improve access to court records, we are always eager to be of assistance.”
