Clerk calls foul

Published 10:03 am Wednesday, August 19, 2015

by Rick Francis

In Friday’s edition, this paper reprinted an article that originally appeared in the Daily Press suggesting that voters oust any clerk that did not voluntarily turn over to them a bulk database of criminal case file information. It’s a cheap shot to initiate a lawsuit and then pick at your opponent who is “gagged” on advice of counsel. However, I’ll take the bait.

I, as clerk (as do most around the Commonwealth), consider myself a temporary “steward” of the public’s records — maintaining them on behalf of past, present and future generations. Thus far, I have sought and received about $150,000 in grants to physically preserve and digitize our paper records which date back to 1749. Of the 120 clerks in the Commonwealth, I think only three have put more records on line than have I (with the help of Ken Brantley, Bruce Saunders and their teams).

Every citizen should know that, other than military discharge papers, pre-sentence reports, CHPs and unserved search warrants, practically all of Southampton/Franklin’s records are freely open to the public, without appointment, at the Courthouse.

Additionally, civil/criminal case information is already freely available on-line, with SSNs and DoBs removed. Thus, unlike what the Daily Press would have you believe, the Courthouse IS a “transparent temple” for the public, as well as the press, to access, review and critique the operation of law and justice in our circuit, as well as in our Commonwealth.

In addition, what the newspaper article did not mention is that the Daily Press seeks to use Virginia’s Freedom of Information Act (FOIA) to compel the Supreme Court, and now the individual clerks, to expend taxpayer money to CREATE a database and deliver it to the paper — a for-profit company. This sets a dangerous precedent.

Virginia’s Freedom of Information Act (§2.2-3700) has its roots in the Watergate Era and guarantees open access to public records, with all “close calls” going in favor of the public’s right-to-know. Over the years, only limited exceptions have been recognized.

The Daily Press litigation may turn on the Court’s interpretation of §2.2-3703(A)(5), which says that Virginia’s FOIA, “…shall not apply to the records required by law to be maintained by the clerks of the courts of record… . However, other records maintained by the clerks of such courts shall be public records and subject to the provisions of the Chapter.”

I believe that part of my job as clerk is to protect the personal information of my constituents, at least to the extent permitted by law. We all already get too many phone and mail solicitations. My concerns with the Daily Press are: (1) they are not asking for “access” but “ownership” of the database, and (2) they are just one of 11 newspapers owned by Tribune Publishing, a publicly traded conglomerate registered in Delaware and headquartered in Chicago. The board of any publicly traded company has only one duty — to maximize profits for shareholders. While the stated study has a worthy goal, their having just come out of bankruptcy in 2012, makes me wonder what Tribune Publishing would ultimately do with the data. Every company in America would LOVE to be given their own database of personal information, tailor-made for data mining and resale.

When interviewed by The Tidewater News, I had not yet received the database from the Supreme Court and I was fearful that it would include defendants and victims’ personal information. I received the database at 4:44 p.m. on Friday afternoon. As far as personal information is concerned, the database only gives the defendants’ name, partial SSN, partial DoB, city and zip (no street address).

This being the case, if I can remove the defendants’ names from the database (I owe a duty to both convicted and exonerated defendants as well), I will likely offer the Daily Press a copy in settlement of the lawsuit — if I do, (1) it will be without cost, (2) I will send a copy to the TN (which, as regards these records, I trust more than the DP), and (3) I will ask my IT person to add it as a link to my website.

However, it will take a Court’s order to compel me to give over any names.

The Daily Press also asserts that clerks are out selling public data. Here is the scoop on that: I, and clerks across the Commonwealth, have the option to offer two services by “subscription:” Secure Remote Access to Land Records (SRA) and Officer of the Court Remote Access (OCRA). Using SRA, attorneys and title companies can perform title searches from their offices to ensure that you have clean titles for your properties. The cost to non-governmental entities is $50 per month and the funds generated can be used by the Clerk for certain statutorily prescribed “operational expenses.” With these funds I am working to: (1) upgrade our computer server; (2) install LED lighting (no UV damage); (3) digitize marriage records; and (4) upgrade Record Room security, among other improvements (which our County cannot now afford).

The second subscription service, OCRA, gives probation officers (who get it free) and attorneys (who pay $125/yr) access to the criminal and civil case files. However, they cannot view pre-sentence reports or other documents “sealed” by the Court. The State charges us $1,500/yr for maintenance, so there is practically no “profit.” The beauty of OCRA is that it provides off-site, backup storage of all of our case files. For both SRA and OCRA, bulk downloads of information are not permitted.

As with all monies coming into a clerk’s office, these subscriptions and the uses of the funds generated, are controlled by statute and are routinely audited. The results of my office’s (clean) audits are also available on-line.

Being a child of the Watergate era, I am personally committed to the access established by Virginia’s Freedom of Information Act as being essential to a democracy. Thus far in this, my first term of office, of the records over which I have custody, I believe I have refused only the following FOIA requests: (A) three separate attempts to get Concealed Handgun Permit holders’ information, and (B) one inmate’s request for a decedent’s probate details.

Anyway, that’s my story. Far from trying to cling to a database so that I might sell it to a corporation for profit, I seek to maintain the records so that all may have access. I am just not in favor of establishing the precedent of expending taxpayers’ money to create a database to be handed over on a silver platter to a “for profit” company, and I will, to the extent allowed by law, continue to resist turning over the names and personal data of my constituents. I do agree with the Daily Press on one point; if the voters conclude that I have not properly performed the duties of my office, then I am not worthy of their vote in November.

I put my trust in the voters.

RICK FRANCIS is the Circuit Court Clerk for Southampton County. He can be reached at 653-2200.