VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-21-03

July 21, 2003

Mr. Arnold Thielen
President, MIXNET Corporation
Fairfax, 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 correspondence of June 17, 2003.

Dear Mr. Thielen:

You have asked two questions relating to access to court records under the Virginia Freedom of Information Act (FOIA). First, you ask if a clerk of a circuit court would be required to provide digital copies of its digital databases of land conveyance documents or other court records not sealed by the court or subject to an exemption. Secondly, you ask if the clerk of the court may only offer paper copies at 50 cents each in lieu of digital copies of the real estate transfer records when the request is made for the digital index and associated digital images.

The Virginia Freedom of Information Advisory Council has specifically addressed your first question in a prior opinion.¹ 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.³

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. Likewise, a requester would also have the right to request a paper copy of the records maintained in the database. It is not, however, within the discretion of the clerk of the court to only offer the option of receiving paper copies of the records if the records already exist in digital format; the choice of the format lies with the requester.

Subdivision A 8 of § 17.1-275, relating to fees collected by clerks of circuit courts for various services, indicates that a clerk shall charges a fee of 50 cents per page [f]or making out a copy of any paper or record to go out of the office. However, this provision has little relevance to electronic or digital records that may be requested from the clerk. A digital database is not identified by the number of pages it contains; instead, a digital database is a set of data that may be copied and transferred from one computer to a computer disk or other storage medium. In providing digital records, a clerk would be required to comply with subsection G of § 2.2-3704, which requires that records in an electronic database shall be made available to a requester at a reasonable cost, not to exceed the actual cost in accordance with subsection F. Subsection F of § 2.2-3704 allows a public body to recoup its actual costs incurred in accessing, duplicating, supplying, or searching for the requested records. Therefore, if you request a digital copy of records maintained in a digital database, the clerk of the court may charge you for the time it takes to access and copy the nonexempt portions of the database that you requested, and for any other incidental, actual costs, such as the cost of the computer disk onto which the records are copied.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ See Virginia Freedom of Information Advisory Opinion 11 (2002).
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. 94; 2000 Va. AG LEXIS 54 (No. 00-058, Sept. 27, 2000), 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.
³ See also 2002 Op. Atty. Gen. Va. 9; 2002 Va. AG LEXIS 159 (No. 02-095, December 19, 2002), holding that all court records, whether in digital or paper format, are subject to disclosure under FOIA unless sealed by a court or otherwise exempt from disclosure by law.