Attorney General's Opinion 1981-82 #060

CLERKS. DIVORCE. VIRGINIA FREEDOM OF INFORMATION ACT. CLERK OF CIRCUI T COURT NOT AUTHORIZED, ABSENT COURT ORDER, TO DENY PUBLIC ACCESS TO PAPERS FILED IN SUITS FOR DIVORCE NOTWITHSTANDING SENSITIVITY OF SUCH PAPERS.

January 13, 1982

The Honorable Robert P. Crouch, Jr.
Clerk, Circuit Court of Henry County

81-82 60

You ask whether the clerk of a circuit court is authorized, absent a Court order, to deny public access to papers filed with the circuit Court in suits for divorce, because of the potential sensitivity of such papers, for the parties and their families.

Section 20-99 of the Code of Virginia (1950), as amended, provided that in most respects a suit for divorce shall be instituted and conducted as other suits in equity. I find no statute generally applicable to suits in equity that authorizes the clerk of a circuit court, absent a court order, to deny public access to papers filed with the circuit court.1

Section 20-124 provided that upon motion of a party to any suit for divorce, the court may order the record thereof to be sealed and withheld from public inspection and thereafter the same shall only be opened to the parties, their respective attorneys, and to such other persons as the judge of such court at his discretion decides have a proper interest therein

Sections 20-99 and 20-124 must be read in accordance with the accepted principle of statutory construction that mention of one thing implies exclusion of another.2 Section 20-99 provided that suits for divorce are to be instituted and conducted much as other suits in equity. Section 20-124 deals specifically with sequestration of court records in suits for divorce, and authority to sequester is expressly conferred on the court. The clear implication is that the clerk of the circuit court has no authority, absent a court order, to sequester records in suits for divorce.

Further, under the Virginia Freedom of Information Act,3 a circuit court is an agency of the State, or in the State, supported wholly or principally by public funds. See §2.1-341 (a). A circuit court is therefore a public body under §2.1-341(e).  4 Under §2.1-342(a), except as otherwise provided by law, all official records shall be open to inspection and copying during the regular office hours of the custodian of such records.

Section 2.1-342 (b) (5) provides an exemption, for records compiled specifically for use in litigation and material furnished in confidence with respect thereto. This exemption, however, relates primarily to public bodies which may become parties to litigation, not to bodies whose public function is to preside over litigation between other parties5 Accordingly, it is my opinion that the clerk of a circuit court is not authorized, absent a court order, to deny public access to papers filed with the circuit court in suits for divorce, notwithstanding the potential sensitivity of such papers for the parties to such suits, and their families.6

______________________

Footnotes:

1 See 17-43 (records and papers of every court shall be open to inspection by any person, except in cases in which it is otherwise specially provided).

See, also, Opinion to the Honorable Basil C. Burke, Jr., Judge, Sixteenth Judicial District, dated April 28, 1977, found in Report of the Attorney General (1976-1977) at 222 (court records on commitment of mentally ill persons open to public inspection, absent court order sealing records).

Specific exceptions include: §16.1-307 (in juvenile proceedings in circuit court, clerk directed to maintain separate files, to be open for inspection only per §16.1-305); §63.1-235 (in adoption cases, authority conferred on clerk of court, with approval of judge entered of record).

2 See, for example, Opinion to the Honorable Terrell Don Hutto, Director, Department of Corrections, dated March 13, 1981, found in Report of the Attorney General (1980-1981) at 209 (statute, limiting things to be done in a particular manner, implies they are not to be done otherwise).

3 Chapter 21 of Title 2.1 (2.1-340 to 2.1-346.1).

4 See, for example, Opinion to the Honorable Edward E. Wild, Member, Senate of Virginia, dated October 13, 1972, found in Report of the Attorney General (1972-1973) at 487 (applicable to judicial branch of government - Virginia Judicial Conference of Courts of Record).

5 See Opinion to the Honorable Elmo G. Cross, Jr., Member, Senate of Virginia, dated January 15, 1980, found in Report of the Attorney General (1979-1980) at 377 (judge s notes concerning cases over which he presides need not be disclosed).

6 Section 2.1-344(a)(3) authorizes closed meetings to protect the privacy of individuals in certain personal matters, and §2.1-342(b)(11) provides an exemption for certain records of lawful closed meetings, but your inquiry does not concern closed meetings and related records.