VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-11-02

October 16, 2002

Mr. Jack Kennedy
Clerk of Circuit Court, Wise County
Wise, 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 of August 15, 2002.

Dear Mr. Kennedy:

You have asked two questions concerning public access to documents held by a circuit court clerk in digital format. Your questions will be addressed in turn below.

1. You asked, "Are Virginia Circuit Court Clerk's bound to the United States Supreme Court rulings in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982); and, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980) as opinions may relate to First Amendment access to civil and criminal orders and documents that are held exclusively in digital format in response to a citizen request for a copy of the digital database?"

As I understand your question, you ask whether there is a First Amendment right of access to court records. Neither the United States Supreme Court nor the Virginia Supreme Court has decided whether the constitutional right of access to trials also extends to judicial records and documents.¹ The Virginia Freedom of Information Advisory Council has the authority to furnish advisory opinions regarding the application and interpretation of the Virginia Freedom of Information Act (FOIA), which provides for a statutory right of access to public records and meetings in Virginia. To the extent that your question involves interpretation of the First Amendment of the United States Constitution, it is outside the scope and authority of this office to offer an opinion.

2. You also asked, "Does the Virginia Freedom of Information Act and Virginia's open record laws impose a duty upon a Clerk of Circuit Court to provide digital copies of its digital databases of land conveyance documents and such other public documents relating to civil and criminal proceedings unless otherwise sealed by court order to a citizen making a request for a copy of the digital database?"

Subsection A of § 2.2-3704 of the Code of Virginia states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying. Section 2.2-3701 defines a public body as any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. (Emphasis added.) The Office of the Attorney General of Virginia has found that this definition includes a circuit court as an agency of the state supported wholly or principally by public funds.² In addition to falling under the definition of a public body in FOIA, § 17.1-208 states that [e]xcept as otherwise provided by law, the records and papers of every circuit court shall be open to inspection by any person and the clerk shall, when required, furnish copies thereof, except in cases in which it is otherwise specifically provided.

FOIA defines a public record at § 2.2-3701 as all writings and recordings...set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, 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. More specifically, subsection G of § 2.2-3704 states that [p]ublic records maintained by a public body in an electronic data processing system, computer database, or any other structured collection of data shall be made available to a requester. Furthermore, the section explicitly states that if a database contains exempt and nonexempt information, the public body must provide access to the nonexempt portions. Based upon these statutes, it makes no difference for purposes of FOIA whether a public record is a sheet of paper or a computer file -- either must be released upon request, unless specifically exempt by law.

Subsection G of § 2.2-3704 states that [p]ublic bodies shall produce nonexempt records maintained in an electronic database in any tangible medium identified by the requester...if that medium is used by the public body in the regular course of business. Thus, because the records are already maintained in a digital format, a requester would have the right to receive a copy of the records in the digital format used by the public body in the course of its regular business. Likewise, a requester would also have the right to request a paper copy of the records maintained in the database.

In conclusion, this office is unable to opine as to whether a constitutional right of access attaches to not only judicial proceedings, but also judicial records. FOIA, however, statutorily mandates the disclosure of all public records, regardless of physical form or characteristic, unless an exemption in law applies. Court records, like records of other public bodies, fall under this mandate. If a citizen requests a copy of a digital database containing court documents held exclusively in digital format, the court would be required to provide access to those records, and may redact out only those portions of the database subject to an exemption. The requester has the right to request those records in any medium used by the court in the regular course of business, whether that be a digital copy of the digital database or a paper print-out of the records.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ In re Worrell Enterprises, 14 Va. App. 671 at 676 (Ct. App. 1992).

² 1981-82 Op. Atty. Gen. Va. 60. A number of other opinions, while not specifically addressing the issue, are based upon the assumption that court records are open to public inspection pursuant to FOIA. See, e.g., 2000 Op. Atty. Gen. Va. 54, 1987 Op. Atty. Va. 255, 1984-85 Op. Atty. Gen. Va. 428, 1982-1983 Op. Atty. Gen. 723, and 1982-83 Op. Atty. Gen. Va. 709.