VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-03-15

April 23, 2015

Digby A. Solomon
Publisher and Chief Executive Officer
Daily Press
Newport News, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your letter dated February 13, 2015, and telephone conversations with staff of the Office of the Executive Secretary of the Supreme Court of Virginia on April 16 and 23, 2015.

Dear Mr. Solomon:

You have asked whether the Office of the Executive Secretary of the Supreme Court of Virginia (OES) has improperly withheld certain records from you. Specifically, you asked for the electronic compilation of circuit court case status records in OES' case management system. You stated that OES has released those records in the past, but declined repeated requests for it recently, citing a change in policy last year. You related that OES maintains that the records are not subject to FOIA pursuant to subdivision A 5 of § 2.2-3703, which states that the Virginia Freedom of Information Act (FOIA) does not apply to records required by law to be maintained by the clerks of the courts of record, as defined in § 1-212, and courts not of record, as defined in § 16.1-69.5. You contend that subdivision A 5 of § 2.2-3703 does not apply in this situation because OES is not a clerk of court and the case management system is optional, not required. Additionally, you stated that OES indicated it had fulfilled its responsibilities to respond by allowing an online search of individual case status records through its circuit court case information website. You disagreed because that online search only goes to single cases, whereas your request is for the entire compilation of records (i.e., the entire database) in the case management system. Specifically, it appears that the Virginia Courts Case Information system allows any user online access to search individual cases by selecting the court, whether the case is criminal or civil, and then entering either a case name, case number, or hearing date.¹ Based on conversations with OES staff, it is my understanding that the online system does access the same database as the case management system, although access to certain data fields (such as social security numbers and concealed carry handgun permit applications) is not made available in the online version. It is my further understanding that in practice, OES will release circuit court records in the case management system database by jurisdiction only when it has received prior permission to do so from the clerk of the circuit court of that jurisdiction. Without such permission, OES will not release that jurisdiction's database or make it available online through the Virginia Courts Case Information system. In this instance, my understanding is that two such databases were released to the Daily Press with permission of the respective clerks, but other requested databases were withheld because OES did not receive authorization from the clerks to release them.

The policy of FOIA set forth in subsection B of § 2.2-3700 is that [a]ll public records and meetings shall be presumed open, unless an exemption is properly invoked. The policy continues to state that FOIA

shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.

In applying FOIA, we must first determine that the entity in question is a public body subject to FOIA and, in a situation dealing with records, that the records at issue are public records subject to FOIA. This office has already considered whether OES is a public body as defined in § 2.2-3701; the conclusion was that OES is a public body because OES is an agency in the Commonwealth supported wholly or principally by public funds.² As there appear to be no new facts, relevant changes in the law, or contrary legal opinions since that opinion was issued, the conclusion that OES is a public body subject to FOIA remains unchanged.

FOIA defines public records to include all writings and recordings that consist of letters, words or numbers, or their equivalent...however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. The definition then concludes by distinguishing records which would not be subject to FOIA: Records that are not prepared for or used in the transaction of public business are not public records. It is clear that whether a record is in the transaction of public business is of critical importance in determining whether the record is a public record, but FOIA itself does not define what is meant by the phrase the transaction of public business. In examining what is meant by this phrase in the context of 911 calls, the Supreme Court of Virginia stated as follows:

The "transaction of public business" includes public safety. Indeed, every citizen in Surry County relies on the 911 System, and to say that the operation of the system by the [Surry County Sheriff's Office] and Sheriff Brown is not "in the transaction of public business" is simply inaccurate. Furthermore, Sheriff Brown is a public official, see Va. Const. art. VII, 4, and acts in that capacity when managing the 911 System. Thus, we conclude that the 911 Tape is an official record under FOIA.³

In considering elected officials' electronic mail messages and drawing a distinction between matters of public business and matters of public interest, the Circuit Court of Loudoun County that "public business encompasses those matters over which the public governmental body has supervision, control, jurisdiction, or advisory power."⁴ The Court went on to hold that "[t]here must be some nexus between the record produced and the public trust imposed upon the official or governmental body."⁵ The Attorney General cited the same Circuit Court case in examining whether an email distribution list for a newsletter sent by a member of a county board of supervisors would be a public record. The Attorney General observed that the answer would depend on the contents of the newsletter and how the distribution list was used, stating that "the email distribution list may not appear to transact public business in and of itself, [but] once it is used to send a newsletter that is a public record, it becomes a record used in the transaction of public business and therefore is a public record subject to FOIA."⁶ This office has similarly opined that whether a record is in the transaction of public business must be determined on a case by case basis and depends on the contents of the record. ⁷We also advised that a public body is responsible for providing the records it uses in the transaction of its own public business, not records used in the transaction of the public business of other public bodies. ⁸

Turning to the records at issue, subsection A of § 17.1-502 provides in relevant part that OES shall be the administrator of the circuit court system, which includes the operation and maintenance of a case management system. Following the precedents cited above, there can be no doubt that as a statutory responsibility of OES, the operation and maintenance of the case management system for the circuit courts is the transaction of public business by OES as a public body. Therefore case management system records held by OES would appear to be public records subject to FOIA, and as such, they would be subject to mandatory disclosure upon request unless there is a specific provision of law that provides otherwise.

Note also that besides meeting the statutory definition of public record under FOIA, the fact that individual case records may be accessed online by anyone who uses the Virginia Courts Case Information system⁹ seems to belie any assertion that these are not public records, because they are already in the public domain. Voluntarily providing access to individual case records improves access overall by creating another means to get case records besides going to the courthouse to physically examine dockets and case files, and is to be commended as a good use of technology to help inform citizens of the activities of government. Such access comports well with the policy statement in subsection B of § 2.2-3700 that [t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. However, if the goal is to increase public awareness of the activities of the circuit courts, from a practical standpoint it does not follow that access should be limited to one case at a time, and only if the user already knows the jurisdiction and a party name, case number, or hearing date for that case. Consider that anyone who wishes to do so could get a docket for each participating court, then access the individual information for every case in the system and thereby compile the entire database on a case-by-case basis. While it would be possible to recreate the database this way, doing so would be unnecessarily time consuming when a complete database already exists. Denying access to the complete database while at the same time allowing access to individual case entries does not appear to serve any public purpose, but instead acts as an artificial impediment to access to public records, which stands in contradiction to the stated purposes of FOIA. Again, absent a specific provision of law that states otherwise, it appears at this point in the analysis that the case management system records at issue are public records subject to FOIA.

However, you stated that OES asserts that these records are not subject to FOIA pursuant to subdivision A 5 of § 2.2-3703, which provides in full as follows:

A. The provisions of this chapter shall not apply to:
* * *
5. The records required by law to be maintained by the clerks of the courts of record, as defined in § 1-212, and courts not of record, as defined in § 16.1-69.5. However, other records maintained by the clerks of such courts shall be public records and subject to the provisions of this chapter.

As quoted previously, the policy of FOIA is that [a]ny exemption from public access to records or meetings shall be narrowly construed. Additionally, rules of statutory construction as applied by the Supreme Court of Virginia require that

when the language of a statute is plain and unambiguous, we are bound by the plain meaning of that statutory language. Thus, when the General Assembly has used words that have a plain meaning, courts cannot give those words a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed.¹⁰

The plain language of subdivision A 5 of § 2.2-3703 excepts from the operation of FOIA records required by law to be maintained by the clerks of the courts of record, as defined in § 1-212, and courts not of record, as defined in § 16.1-69.5. The phrase courts of record is defined in § 1-212 to mean the Supreme Court of Virginia, the Court of Appeals of Virginia, and the circuit courts. The phrase courts not of record is defined in § 16.-69.5 to mean all courts in the Commonwealth below the jurisdictional level of the circuit courts including general district courts and juvenile and domestic relations district courts. Clerks of the courts of record are constitutional officers,¹¹ with additional powers and duties set forth in Title 17.1 of the Code. A separate provision of Title 17.1 provides that there shall be a clerk of the Supreme Court of Virginia.¹² The clerks of the courts not of record have their powers and duties set forth in various statutes in Title 16.1 of the Code. OES is established separately by statute in Title 17.1:

The Office of Executive Secretary to the Supreme Court, to be filled by a person having the qualifications as may be prescribed by the justices of the Supreme Court, is hereby created to be the court administrator for the Commonwealth. He shall be appointed by the Supreme Court, shall hold office at the pleasure of the Court, and during his term of office shall not engage in the private practice of law. He shall receive such compensation as may be fixed by the Court. He may, with the approval of the Court, employ such persons as are necessary for the performance of the duties of his office, whose compensation shall be fixed by the Court within the limits of the amounts appropriated by law.¹³

Nothing therein states that OES is a clerk of any court. Reading all of these provisions together, it is clear that the clerks of the various courts and OES are separate offices.

Additionally, as stated above, subsection A of § 17.1-502 provides in relevant part that OES shall be the administrator of the circuit court system, which includes the operation and maintenance of a case management system. Subsection B of the same section provides as follows:

Any circuit court clerk may establish and maintain his own case management system, financial management system, or other independent technology using automation or technology improvements provided by a private vendor or the locality. Any data from the clerk's independent system may be provided directly from such clerk to designated state agencies. The data from the clerk's independent system may also be provided to designated state agencies through an interface with the technology systems operated by the Executive Secretary. [Emphasis added.]

The Supreme Court of Virginia has followed the rule of statutory interpretation that the word "may" is prima facie permissive, importing discretion, but the courts construe it to be mandatory when it is necessary to accomplish the manifest purpose of the Legislature.¹⁴ In this instance no interpretation is necessary, as the plain language of subsections A and B clearly establish options from which a circuit court clerk may choose, which necessarily means that the "may" in this instance is permissive, not mandatory. Furthermore, subsection C of the same section requires OES to provide an electronic interface with his case management system, financial management system, or other technology improvements upon written request of any circuit court clerk. Again, the plain language makes the provision of such an electronic interface necessary only if it is requested in writing by a circuit court clerk. Thus it appears that clerks of the circuit courts have the option to use the case management system maintained by OES, but they are not required to do so. The clerks of the circuit court may instead use some other case management system of their own choosing, in which case they then appear to have the further option of interfacing their own system with the system maintained by OES.

Applying the plain meaning rule of statutory construction along with the narrow construction policy of FOIA, it is clear that subdivision A 5 of § 2.2-3703 only applies to records required by law to be maintained by the clerks of the courts and does not apply to OES. That exception to FOIA makes no mention of OES, only of the clerks of the various courts, and other provisions of law make clear that OES is not a clerk of court. Again applying standard rules of statutory construction, if the General Assembly had intended to exempt OES' records from the operation of FOIA, it could have included OES explicitly within the provisions of § 2.2-3703. That the General Assembly did not do so can only lead to the conclusion that subdivision A 5 of § 2.2-3703 does not apply to OES. Additionally, note that OES' case management records are not records required by law to be maintained by the clerks of the courts. In fact, the plain language of § 17.1-502 states unequivocally that maintenance of a case management system is one of the statutory duties of OES, and maintenance of separate case management systems is an option each circuit court clerk may choose. As I am aware of no other specific provision of law that would exempt the records in question from mandatory disclosure, it would appear that OES must disclose its case management records upon request.

On the other hand, it is possible to construe subdivision A 5 of § 2.2-3703 differently, in a way that would make it appear that FOIA does not apply to the contents of the case management system database. This alternative argument would state that because the contents of the database are records required by law to be maintained by the clerks of the courts, those records are not subject to FOIA from the outset, and subdivision A 5 of § 2.2-3703 would continue to render such records outside the scope of FOIA, regardless of whether they are held by the clerks or in a case management system used by OES. Taken to its logical conclusion, this interpretation would except from the operation of FOIA all such records that are required by law to be maintained by the clerks regardless of what other public body might later come to possess copies of the records and use them in the transaction of its own public business. As a hypothetical example, imagine a public body was planning some building and landscape renovations, and obtained from the clerk of court a copy of the deed and easements for the property to use in planning the renovations. If a citizen or media representative were to ask for records related to the renovation project from the public body, under FOIA they would be given access to all relevant records owned, prepared, or possessed by the public body that were not otherwise exempt, including copies of the relevant deeds and easements. However, if we accept the alternative interpretation of subdivision A 5 of § 2.2-3703, then copies of the deeds and easements would not be subject to FOIA because they are records required by law to be maintained by the clerk of the circuit court, even though in this hypothetical instance, the deeds and easements at issue are merely copies held by a different public body in the transaction of that public body's own public business. Such a broad interpretation runs counter to the policy of FOIA to interpret its provisions liberally to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government and to construe narrowly all exemptions from disclosure. Additionally, consider that deeds, easements, and other court records are generally made public by laws outside of FOIA such as § 17.1-208, which provides in part:

Except as otherwise provided by law, any records that are maintained by the clerk of the circuit court shall be open to inspection by any person and the clerk shall, when requested, furnish copies thereof subject to any fee charged by the clerk pursuant to § 17.1-275, except in cases in which it is otherwise specially provided by statute.

From a practical perspective, then, the hypothetical deeds and easements are open to the public anyway, and allowing the hypothetical public body to deny them under subdivision A 5 of § 2.2-3703 would merely drive the requester to get copies directly from the clerk of court instead. Effectively, this interpretation only serves to make a requester go to multiple public bodies to get the records he or she wants, despite the fact that they are all available from a single source. Again, such an interpretation runs counter to the policy of FOIA, and so we cannot adopt it when a narrower interpretation of subdivision A 5 of § 2.2-3703 provides greater transparency and insight into the workings of government.

However, there is also a further, more nuanced consideration: OES is required to operate and maintain the case management system in its role as administrator of the circuit court system pursuant to subsection A of § 17.1-502, but it does not actually enter the individual case data into the system it maintains. As reasoned above, it is clear that OES' records concerning the operation and maintenance of the case management system are public records in the transaction of OES' public business, but that reasoning does not establish that OES is the custodian of each individual circuit court's case management records that are entered into that system. My understanding is that the individual circuit court clerks generate the case management records and enter it into the system database, while OES merely maintains the system itself. The contention then is that the clerks retain legal custody over those records even though OES maintains the case management system where the records are stored, and therefore OES is not a custodian of the data entered into the case management system. As previously stated, it is my understanding that following this reasoning, OES maintains it is not required to produce the case management database in response to a request made under FOIA and in practice will only do so with the prior authorization of the clerk of the circuit court whose case management records are sought.

These considerations beg the question of who is the custodian responsible to respond to a FOIA request for the case management records database. FOIA refers to the custodian of public records in several places without defining the term custodian. This office examined the term custodian in an opinion last year¹⁵ and observed that FOIA uses it in referring to who receives and responds to records requests under FOIA, and who exercises discretion regarding exempt records.¹⁶ Recognizing the lack of a statutory definition and turning to common usage of the term custodian, this office has previously described a custodian as one in charge of something.¹⁷ The same opinion observed that that definition of custodian makes sense when considered in conjunction with the statutory definition of public records in § 2.2-3701, which includes records prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. A later opinion also found guidance in the Virginia Public Records Act (VPRA), which provides a similar definition of the term custodian in § 42.1-77 to mean the public official in charge of an office having public records.¹⁸ Therefore the term custodian for FOIA purposes is dependent on preparing, owning, or possessing public records.

In this instance, there is additional statutory guidance outside of FOIA itself that makes clear that the circuit court clerks are custodians of these case records by operation of law. Section 17.1-242 provides in full as follows:

The circuit court clerks shall have custody of and shall keep all court records, including books, evidence, records, maps, and papers, deposited in their offices or at such location otherwise designated by the clerk, as well as records stored in electronic format whether the storage media for such electronic records are on premises or elsewhere.

The last line makes clear that the clerks of the circuit courts are still custodians of such records even if they are stored elsewhere, which would appear to include records stored in OES' case management system. We must also take note of § 17.1-225, which addresses remote access to nonconfidential circuit court records as follows:

The clerk of the circuit court of any county or city may provide remote access, including Internet access, to all nonconfidential court records on an automated case management or other system maintained by his office and described in § 17.1-242. The clerk shall be responsible for insuring that proper security measures are implemented and maintained to prevent remote access users from obtaining any data that are confidential under this Code and to prevent the modification or destruction of any records by remote access users. For purposes of this section, remote access users are those individuals who are not employees of the clerk's office. Secure remote access to land records shall be governed by § 17.1-294.

My understanding of the facts at issue here is that the clerks of the individual courts prepare, own, and possess the data entered into the case management system, while OES maintains the system itself. It is clear that the individual clerks are the custodians of their own case files¹⁹ and remain so by operation of law even when those files are shared with OES.

However, it appears that while the circuit court clerks are custodians of these records, OES also possesses the records in the transaction of OES' public business once the records are entered into the case management system maintained by OES. If OES possesses this data in the transaction of its public business, then following the definition of public record in FOIA and the considerations of who is a custodian presented above, OES would be a custodian of the case management system database and would be responsible for responding to a FOIA request for a copy of that database. FOIA does not say anything about there being only one custodian for any given public record. If records are shared among multiple public bodies in the transaction of each body's public business, then each body who possesses the records at issue may become a custodian of those records. In this instance, it appears that the clerks of the circuit courts remain custodians of the case management records they enter into OES' case management system, but as OES also possesses those records in the transaction of OES' public business, OES is also a custodian of those records.

With regard to the provisions of §§ 17.1-225 and 17.1-242 quoted above, the General Assembly has imposed certain duties on the clerks of the circuit courts to keep custody of certain records and to prevent them from being improperly accessed, modified, or destroyed. In those provisions, the General Assembly did not state that the clerks were the sole custodians of those records nor that only the clerks could grant access to the nonconfidential records in the case management database. If the General Assembly wished to exempt OES' case management system from disclosure, it could craft an exemption for such records or even add OES to the list of exempt entities in § 2.2-3703. To date, it has not done so. The Attorney General has considered these statutes when considering whether circuit court judges have the authority to direct that the clerk grant access to the case management systems beyond the level of "inquiry only."²⁰ The Attorney General observed that

the circuit court clerk is responsible for the integrity of all records maintained by the clerk's office. That responsibility is not shared with any other court official, but rests exclusively with the elected clerk of the circuit court.

Accordingly, I must conclude that automated case management systems maintained by the clerk of a circuit court, whether the storage media is on or off premises, are records of the clerk's office under the custody of such clerk. Access to such a case management system lies within the sound discretion of the clerk.²¹

It is my understanding that this opinion of the Attorney General underpins OES' policy not to release these records unless the appropriate circuit court clerk has given his or her authorization to do so.

However, the factual context of the Attorney General's opinion is entirely different from the FOIA request at issue. The Attorney General noted an assumption that "inquiry only" access would "mean a level of access that permits an individual to view, but not to modify, nonconfidential information contained on the system."²² The question presented for the Attorney General's consideration was whether a judge could order a clerk to provide access beyond the level of "inquiry only." That is not the question here. FOIA only requires access to existing public records; it does not require any access to the underlying system used to maintain those records, nor does it grant any right or ability to modify or otherwise change public records. It is clear that the Attorney General's conclusion was based on a clerk's statutory duties to maintain the integrity of records in his or her custody. FOIA is entirely in accord in that regard, as subsection A of § 2.2-3704 states that [t]he custodian of such records shall take all necessary precautions for their preservation and safekeeping. The Attorney General's opinion also took into account a clerk's responsibility not to release confidential records. Again, that is entirely in accord with FOIA, as subsection A of § 2.2-3704 explicitly requires access to public records except as otherwise specified by law. To the extent records in the case management system are otherwise made confidential, they would not be required to be disclosed under FOIA. Because it was considering an entirely different factual situation, the Attorney General's opinion does not appear to be dispositive of the question presented here.

As an aside, please note that I am aware of several other such instances where one entity maintains an electronic data system that is accessed and used by some other entity, or entities, and such instances appear to be becoming more common as technology such as "cloud" computing develops and various public bodies share electronic resources. Questions of ownership, possession, and custody all too often appear to be obscured by technological advances even as the technologies involved enable more rapid and widespread sharing of information than ever before. This appears to be an emerging area of law without any controlling court opinions on point. This office will continue to monitor this area of law as it develops. With that in mind, there is a further provision of FOIA to consider, as FOIA addresses the issue of custody in regard to the transfer and storage of records in subsection J of § 2.2-3704:

In the event a public body has transferred possession of public records to any entity, including but not limited to any other public body, for storage, maintenance, or archiving, the public body initiating the transfer of such records shall remain the custodian of such records for purposes of responding to requests for public records made pursuant to this chapter and shall be responsible for retrieving and supplying such public records to the requester. In the event a public body has transferred public records for storage, maintenance, or archiving and such transferring public body is no longer in existence, any public body that is a successor to the transferring public body shall be deemed the custodian of such records. In the event no successor entity exists, the entity in possession of the public records shall be deemed the custodian of the records for purposes of compliance with this chapter, and shall retrieve and supply such records to the requester. Nothing in this subsection shall be construed to apply to records transferred to the Library of Virginia for permanent archiving pursuant to the duties imposed by the Virginia Public Records Act (§ 42.1-76 et seq.). In accordance with § 42.1-79, the Library of Virginia shall be the custodian of such permanently archived records and shall be responsible for responding to requests for such records made pursuant to this chapter.

FOIA does not offer a statutory definition of what it means to transfer possession of records in this context. Turning to ordinary usage, transfer is defined to mean "to convey or shift from one person or place to another" or "to make over the possession or legal title of or to another."²³ This provision appears best suited to cover situations where there has been a clear transfer of possession - i.e., a new entity actually has the records at issue, and the old entity no longer does. Before the widespread use of electronic records and data sharing technologies, it was relatively easy to determine who held a record, because it literally meant holding a physical copy of a record, whether it be paper, an audio tape, a video reel or cassette, or some other tangible object. Even with electronic records, if one entity is given a copy and retains it and the original entity deletes it, the question of who possesses the record is clearly answered, as only one copy remains. My understanding is that this provision was enacted to help clarify situations where one entity provides purely technical support or resources to another. For example, the Virginia Information Technologies Agency (VITA) provides information technology support to many other agencies of the Commonwealth, and in so doing, it may come to possess copies of records that the individual agencies no longer retain themselves. Following this provision, even when VITA stores records on behalf of other agencies, it does not become the custodian of those records for FOIA purposes.

However, this provision concerning transfer is insufficient to address situations such as the case at hand where it appears that the public bodies involved are sharing the records and both are using them in the transaction of their public business. My understanding is that VITA only stores records transferred from other agencies, and does not otherwise use such transferred records in the transaction of VITA's own public business. It is my understanding that OES does more in this instance, in that it not only operates and maintains the case management system, but also provides online access to it through the Virginia Courts Case Information system and uses the records entered by the clerks to generate aggregate and statistical data. Additionally, there is no indication that the court clerks who originally prepared the case management records have simply transferred them to OES for storage and no longer have access to them. To the contrary, it would defeat the purpose of the case management system if the clerks were denied access, and as noted above, the clerks already retain custody and responsibility for the integrity of these records. Therefore in this instance, it again appears that rather than a mere transfer for storage purposes, the records are issue are shared among the various circuit courts and OES. In this sense, these records appear somewhat analogous to concealed carry handgun permits, which are issued by the circuit court clerks but compiled into a central database by the Virginia State Police. At one time, such records were required to be released under FOIA as public records to which no exemptions applied.²⁴ Before the advent of electronic records, such records were protected by "practical obscurity" in that privacy was protected because most people simply would not physically go to the courthouse to view such records, even though they were publicly available under the law.²⁵ However, as technology progressed it came to pass that the State Police compiled a complete database containing all such concealed carry handgun permit records in an electronic format. In 2007 the complete database of such permits was obtained from the State Police and published online, causing considerable public outcry.²⁶ In response, the General Assembly passed legislation making the full database held by the State Police exempt from FOIA, while still allowing access at each individual circuit court.²⁷ Subsequent legislation made concealed carry handgun permits confidential at the level of the circuit courts as well.²⁸ Similarly, it appears that OES has compiled a case management database with records provided by all of the individual jurisdictions that have chosen to participate, whereas each individual jurisdiction otherwise maintains only its own records. The General Assembly could enact legislation to exempt from disclosure OES' case management system database, just as it did for the State Police's database regarding concealed carry handgun permits, but it does not appear that the General Assembly has done so. Absent a specific exemption, it appears that OES must disclose that database upon request, just as the State Police once disclosed the concealed carry handgun permit database under former law.

Finally, we address the contention that OES satisfied your request by providing an online search feature that allowed access to single cases. To address this contention, we first must presume that the records at issue are public records, that OES is a custodian of them, and that they are not exempt from mandatory disclosure. Considering the response then as a procedural matter, § 2.2-3704 sets forth the procedural requirements for making and responding to a request for public records under FOIA. Subsection A of that section provides the basic rule that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Subsection G of that section addresses access to records kept in electronic databases, stating in relevant part as follows:

Public bodies shall produce nonexempt records maintained in an electronic database in any tangible medium identified by the requester, including, where the public body has the capability, the option of posting the records on a website or delivering the records through an electronic mail address provided by the requester, if that medium is used by the public body in the regular course of business. No public body shall be required to produce records from an electronic database in a format not regularly used by the public body. However, the public body shall make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and public body, including the payment of reasonable costs. [Emphasis added.]

The bold portions of that provision make clear that it is the requester's option to have the records posted on a website or to receive them in any other tangible medium that the public body uses in the regular course of business. Therefore providing you with online access to individual case records is insufficient when you requested a copy of the entire database, unless you agree to accept that response. More generally, this office has previously opined that while posting records online improves access and can save time and money for all involved, it is only a sufficient response to a FOIA request if the requester agrees to it.²⁹ If the requester does not agree, then the public body must provide the records in any tangible medium it uses in the regular course of business, as stated above.

In summary, it appears that OES by statute operates and maintains a case management system, the operation and maintenance of the system is the transaction of OES' public business, and therefore OES' case management records are public records subject to FOIA.³⁰ By operation of law, the respective clerks also remain custodians of those records, and they bear responsibility for maintaining the integrity of those records. To the extent that OES owns or possesses such data, it is also a custodian of such records and likewise responsible to respond to a request for it under FOIA.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹Virginia Courts Case Information website at http://ewsocis1.courts.state.va.us/CJISWeb/circuit.jsp.
²Freedom of Information Advisory Opinion 01 (2009).
³Tull v. Brown, 255 Va. 177, 183, 494 S.E.2d 855, 858 (1998)(internal citations, quotations omitted).
⁴Burton v. Mann, 74 Va. Cir. 471, 474 (Circuit Court of Loudoun County, 2008).
⁵Id.
⁶Op. Atty. Gen. Va. No. 13-072 (Sept. 27, 2013).
⁷Freedom of Information Advisory Opinion 04 (2010).
⁸Id.
⁹Supra, n. 1.
¹⁰Beck v. Shelton, 267 Va. 482, 488, 593 S.E.2d 195, 198 (Va. 2004).
¹¹Va. Const. art. VII, § 4.
¹²Va. Code § 17.1-200.
¹³Va. Code § 17.1-314.
¹⁴Harper v. Virginia Dep't of Taxation, 250 Va. 184, 194, 462 S.E.2d 892, 898, (1995)(internal quotations and citations omitted).
¹⁵Freedom of Information Advisory Opinion 02 (2014).
¹⁶.See subsections A and B of § 2.2-3704, and the prefatory language of §§ 2.2-3705.1 through 2.2-3705.7 and subdivision A 2 of § 2.2-3706 (The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law.).
¹⁷Freedom of Information Advisory Opinion 37 (2001)(quoting The American Heritage College Dictionary (3d ed. 1993)).
¹⁸Freedom of Information Advisory Opinion 05 (2007).
¹⁹Note that unlike OES' records, subdivision A 5 of § 2.2-3704 would render FOIA inapplicable to the case files required by law to be maintained by the clerks of the courts; this opinion only addresses those records held in OES' case management system.
²⁰2002 Op. Atty. Gen. Va. No. 02-026 (April 04, 2002).
²¹Id.
²²Id., n.1.
²³The American Heritage Dictionary 1286 (2d College ed. 1982).
²⁴See Freedom of Information Advisory Opinion 16 (2001).
²⁵“The notion that public records are limited by a built-in assumption of 'practical obscurity' was first advanced by the Supreme Court in a case denying a reporter’s request for an FBI rap sheet that compiled conviction records from several states because it would constitute an unwarranted invasion of privacy. Although the individual records were public, the court ruled that they were in a sense protected by the barriers of time and inconvenience involved in collecting them.” As Public Records GO Online, Some Say They’re Too Public, The New York Times, August 24, 2001.
²⁶See, e.g., minutes of the September 10, 2007, and December 3, 2007, meetings of the FOIA Council (available at http://foiacouncil.dls.virginia.gov/meetings.htm).
²⁷2009 Acts of Assembly, c. 235.
²⁸2013 Acts of Assembly, cc. 659. Note that there have been additional legislative amendments regarding access to concealed carry handgun permits; current laws regarding access to such permit information may be found at §§ 18.2-308.2 and 18.2-308.7.
²⁹Freedom of Information Advisory Opinion 08 (2009).
³⁰Note that such records may still be subject to other exemptions depending on their contents, such as records concerning access control features of such a system (which may be exempt under subdivision 3 of § 2.2-3705.2) or the underlying software itself (which may be exempt under subdivisions 6 or 7 of § 2.2-3705.1).

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