by Dave Ress
dress@dailypress.com

Most court clerks oppose releasing an expanded set of the records that have shown sentencing disparity based on race and low rates of prosecution of sexual assaults in Virginia.

At least 51 of the elected clerks said they opposed releasing the records when asked by their association if they favored or opposed a request by court system administrators to provide the records to the Daily Press, according to an email from the president of the Virginia Circuit Court Clerks Association to members.

Four said they planned to release the records and two said they would ask the Office of the Executive Secretary of the Supreme Court to release the records.

The Daily Press has been seeking access to a statewide database of case records from the office, which is the administrative agency for Virginia’s courts, for more than a year. After the OES refused to release the database, which it had provided in past years, the Daily Press then worked with the Hampton Roads chapter of Code for America to compile one year of the data on a case-by-case basis. That data showed racial disparity in plea bargaining and probation cases.

Last week, the Daily Press filed a lawsuit in Newport News Circuit Court against the OES seeking a release of the portions of the compiled database that the OES already makes available on its website for looking up single cases.

The OES meanwhile extracted records for each circuit court, and this week asked them to review the information and then send it to the Daily Press.

That sparked an uproar.

“If you still want to add your vote to this poll to oppose sending your data to the Daily Press, please send me a quick email saying OPPOSE; or if you want to elaborate, feel free,” Cathy Hogan, president of the clerks’ association and clerk of the Bedford County Circuit Court emailed to the rest of the clerks Tuesday.

Hogan would not comment when asked her position on the issue, or about the specific concerns of the clerks.

She said she was doing so on the advice of the association’s lawyer.

Most other clerks also declined to comment when the Daily Press emailed them. In the email, they were asked if they opposed release, if they would say what their concerns were and how much money they made selling the data to companies that collect court records for sale to subscribers.

“Do not answer this. We may be brought into this suit and any such statements you made in response to this CAN AND WILL be used against you in court,” Suffolk clerk Randy Carter fired back in response to the Daily Press questions, replying to both the Daily Press and the other clerks.

Isle of Wight clerk Sharon Jones also sent an email to the clerks and to the Daily Press, writing, “I agree with you Randy. By the way….if a nice little convenient spreadsheet is handed to him, isn’t there a concern as to what they do with the data once it’s in their hands…….to be manipulated anyway they see fit?….and then sell to other newspapers?….I think there’s a code section about that!”

The OES has said it can’t release the entire database of information because the information belongs to the clerks.

Access to information

When the Daily Press asked the Freedom of Information Advisory Council if the OES database itself was a public record, that state agency said it was. The council agreed with the newspaper that the OES was the custodian of the record and that there was nothing in state law allowing it to withhold the database.

Analysis of compiled court records, even at the local level, has hinted at what could be learned from a more in-depth look at the data.

Using records provided by the clerks of the Newport News and Williamsburg-James City County circuit courts, the Daily Press reported earlier this year that no more than 5 percent of rapes ended up with a conviction, in part because there were no arrests and in part because charges were dropped.

Both Newport News clerk Gary Anderson and Williamsburg/James City clerk Betsy Woolridge have released even more comprehensive updates to the Daily Press since the reports on sentencing disparities and sexual assaults were published.

Other Peninsula area court clerks have declined or refused to respond to earlier direct requests for the records from the Daily Press.

The Norfolk Circuit Court and the clerk for the circuit court for Wise County and the city of Norton have sent their records to the paper in the past few days. Two other clerks, Barrett Chappell in Dinwiddie County and Gordy Erby in Lunenburg County, told the Daily Press they intend to release their records.

“The Daily Press is providing a pathway for the third branch of government to better understand itself,” Wise County/Norton clerk Jack Kennedy wrote, in a note accompanying his data.

“The insights to be learned from the analytical (measures) will benefit all parties. While many of my clerk of court colleagues may disagree with the method utilized or the law cited to open the criminal court data held in Richmond on each circuit court sentencing record from the past decade, the overriding public policy must be ‘equal justice under law.’”

Kristen Nelson, clerk of the York County/Poquoson Circuit Court, said she had “mixed feelings” when asked about her plans regarding the data. She said she couldn’t comment further because of the paper’s petition seeking the records from the OES.

“I was opposed,” said Jeff Small, clerk for the Fredericksburg Court. “If my neighbor wanted to come in and see this and say he wants us to get it altogether for him — in all fairness why should the press get special treatment?”

Small said he has always allowed the public access to any records they are allowed to see, but did not explain why he considered it special treatment to provide a copy of a database of records already available on a case-by-case basis.

The three other clerks who responded said they would not comment because of the lawsuit against the OES.

The Daily Press’ FOIA request and the lawsuit asking for enforcement of that state law was directed at the Office of the Executive Secretary and not the clerks. Circuit Court clerks in Virginia are elected officials, who serve eight-year terms and can earn up to $140,000 a year.

“It is deeply disturbing that any elected official would oppose release of public information regarding court records,” said Claire Guthrie Gastanaga, executive director of the American Civil Liberties Union of Virginia.

“Voters should consider a commitment to transparency and open government a minimum requirement for all elected officials,” she said.

“The clerks are guardians of some of Virginia’s most important public assets: the records detailing how we administer justice in our state,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government.

“That is not something that should be put to a popular vote. Such a poll trivializes the real public interest in our ability to maintain oversight of the judicial branch of our government.”

Ress can be reached by phone at 757-247-4535.

This article first appeared in The Daily Press, which is based in Newport News, and is reprinted with permission.