A retired circuit court judge has ruled the Virginia Freedom of Information Act does not apply to the state’s judiciary, a ruling that could potentially hinder access to records of the judicial branch of government, like expense reports or phone bills.
The Oct. 15 ruling by retired Judge William Alexander II came in a dispute between William Turner, who lives on the Eastern Shore, and state officials. Turner had filed a lawsuit requesting records of long-distance phone calls from the Supreme Court of Virginia’s Office of the Executive Secretary.
The judge ruled that enforcement of FOIA did not apply to the Office of Executive Secretary and that the doctrine of sovereign immunity and separation of powers barred enforcement of FOIA against the office.
In January the Supreme Court of Virginia announced that it would adopt rules regarding access to judicial records. On Friday, four days after the ruling, the court issued a news release saying it planned to adopt new rules about access to court records.
The Office of the Executive Secretary, according to the news release, publishes statistics, manuals, policies court forms, court directories and judicial branch expenditures on its website. “The proposed Rules are consistent with current law and practice in the Commonwealth and track closely the access policies adopted by other state judiciaries and the federal courts,” the news release said.
The Supreme Court is accepting comments on the proposed rules until Dec. 3.
Megan Rhyne, executive director of the Virginia Coalition for Open Government and one of the state’s foremost experts on access to public records and meetings, said in an email that her group “remains quite concerned about the potential reach of this court ruling.”
“Last week the courts issued a proposal to govern access to court records that would presumably stand in place of access under FOIA, but at this stage we are still looking into the impact of both the ruling and the proposal on real-world questions about the public’s ability to monitor the performance of the judicial system, from expenditures and caseloads to employment policies and other basic government operations that can be scrutinized at the legislative and executive branches of state and local government.”
Alexander retired as a circuit judge in 2014 in the judicial district that includes Franklin and Pittsylvania counties and Danville.
A state senator, working with the Office of the Executive Secretary, unsuccessfully tried to pass legislation early this year to exempt administrative records of the judiciary from Virginia FOIA.
But the bill from Sen. Richard Stuart, R-Stafford, grew so controversial in this year’s General Assembly session that he withdrew it in February.