Handling of public records emerges as top focus of Fairfax Circuit Court clerk race

How public records should be handled will be a key issue in the race to replace retiring Fairfax County Circuit Court Clerk John Frey.

Democrat Chris Falcon and Republican Gerarda Culipher are both vying to fill the position that Frey will vacate when he retires in December. Frey, a Republican, has served as clerk of the county’s circuit court for the last 32 years. He ran for Virginia Attorney General in 2012.

Election Day is Nov. 7, but early voting starts in less than a month on Sept. 22.

The two candidates have distinctive points of view when it comes to how public records — like divorce cases, property records, and civil matters — should be made accessible.

Under Frey’s tenure, Fairfax County made records available online through its Court Public Access Network (CPAN) system, but it has a paywall, costing $150 a quarter, or $600 a year, to access.

While most jurisdictions utilize a platform run by Virginia’s Supreme Court, Fairfax County uses its own system and is the only Northern Virginia jurisdiction to charge for viewing information remotely, as permitted by Virginia code.

Records can be accessed for free in person at the Fairfax County Courthouse, and the court launched an e-filing system last year so residents and lawyers can submit documents online, though it also comes with subscription and search fees.

Currently the deputy clerk of the court for Arlington County, which offers free access to records through the Virginia platform, Falcon resides in Annandale and is a graduate of W.T. Woodson High School in Fairfax.

He told FFXnow that he’s running for court clerk to bring some reforms from Arlington to his home jurisdiction.

“I’ve encountered countless people who have reached barriers along the way when trying to access justice and access the court system,” Falcon said. “Those can be barriers because of their inability to pay for counsel or because of their lack of proficiency with the English language, or even because of transportation issues or childcare issues. For the past nine years, I’ve been working for the court system over here in Arlington, and I’ve been very proud that we’ve been able to take down a lot of those barriers.”

He called it a “real shame” that Fairfax County does not provide “free, online case information” — and he intends to change that if elected.

Falcon said this lack of access particularly hurts those representing themselves in civil cases or those who may not know the process.

“A lot of those people are not able to find the necessary information that they need, like their case numbers, their hearing dates and times, because that information is currently blocked behind a paywall that the Fairfax Circuit Court clerk’s office has in place,” he said. “I don’t know that they understand actually how many people it’s hurting.”

Culipher argues there are good reasons why the county handles its records and operates in the way it does. Currently the chief deputy clerk, she’s worked in the Fairfax County Circuit Court Clerk’s Office for a decade.

She agreed with Falcon that the “default posture” of the court is to provide public, open records, but there are “notable exceptions.”

Calling the Fairfax County Circuit Court the “hearth and home” court, since it deals with life events like probate, adoption, marriage, and divorce, Culipher noted that many records are “sensitive” and deserve to be treated “thoughtfully.”

Her office also has concerns about “bad actors” and “attempts to abuse” the open record system. Charging for subscription access allows the court to monitor and limit access as needed, she said.

“We have technology that helps us identify people who are…screen scraping or they’re data mining,” Culipher said. “We have the ability to say we’re going to suspend your account. You’re not going to have remote access anymore. In over a decade [working in the office], I’ve seen it [happen].”

Culipher cited the growing concern around artificial intelligence and how it may make the office’s job harder. Providing safeguards and limits may be the only way to protect residents’ private and sensitive information.

“We have responsible custodianship of it and we take it seriously,” she said. “So, yes, I’ve seen [attempts to abuse the system] and I will say, into the future, I think there’s probably going to be more of it.”

Fairfax County is also about twice the size of the next largest circuit court. The sheer amount of information and records was another reason why a separate system needed to be built out, Culipher said.

Last month, Frey has endorsed Culipher. In the announcement, he called Falcon a “nice guy,” but noted that Fairfax County Circuit Court has four times as many employees and six times the budget of Arlington County.

“Gerarda’s opponent would like to put all of the court’s data online for free,” Frey said. “That sounds great at first but when you consider that Fairfax County is home to federal and state judges, CIA, DEA, FBI, military leaders, state and local police, and your family, the idea of putting court data online for free does not sound like a great idea.”

Falcon called that an “inaccurate representation” of his stance.

“I’m talking about case numbers, names of cases, and hearing dates and times. And it’s already put out into the public sphere by every other county except for Fairfax County in Virginia,” he said. “So I’m certainly not talking about leaking people’s private information. We don’t do that here in Arlington and this is the home of the Pentagon.”

Falcon also wants to improve language access, start Saturday service, and improve constituent services, like virtual name change applications and marriage licenses.

“At the end of the day, it’s about helping people,” Falcon said. “It’s about increasing transparency in this very important office and delivering better service to our residents.”

Culipher said she’s also for much of that and isn’t opposed to ensuring public records are accessible. But she wants there to be careful consideration of what is public and to whom it’s available.

“I stand for that balancing act, and I stand to be a major voice for Virginia as she begins to look at more open access to records,” she said. “And maybe I just want to be that cautionary voice.”