Attorney General's Opinion 2002 #095

ADMINISTRATION OF GOVERNMENT: VIRGINIA FREEDOM OF INFORMATION ACT.
COURTS OF RECORD: CLERKS, CLERKS’ OFFICES AND RECORDS.
Presumption of openness regarding requests for court records in digital format. Duty of circuit court clerks to furnish copies of records requested by citizens, without distinction between paper and digital formats, provided records are not sealed by court order or otherwise exempt from disclosure by law.

December 19, 2002

The Honorable J. Jack Kennedy, Jr.
Clerk, Circuit Court for Wise County and City of Norton
P.O. Box 1248
Wise, Virginia 24293-1248

Dear Mr. Kennedy:

This is in response to your request for an official advisory opinion in accordance with §2.2-505 of the Code of Virginia.

Issues Presented

You pose two questions regarding digital databases held as part of a public record. you first ask whether circuit court clerks are bound by two decisions of the Supreme Court of the United States as they relate to First Amendment access to civil and criminal documents that are stored exclusively in digital format. You next ask whether The Virginia Freedom of Information Act and §17.1-208 impose a duty on the clerk of a circuit court to provide public access to digital copies of the court’s database of land conveyance documents and other documents relating to civil and criminal proceedings, unless otherwise sealed by court order.

Response

It is my opinion that the two United States Supreme Court decisions you reference are not applicable to whether a circuit court clerk has a duty to provide public access to digital copies of the court’s database of judicial or court records. It is my opinion that there is a presumption of openness with regard to requests for court records in digital format. Specifically, The Virginia Freedom of Information Act and §17.1-208 impose a duty on circuit court clerks to furnish copies of records requested by a citizen, without distinction between paper and digital formats, provided the records are not sealed by court order or otherwise exempt from disclosure by law.

Applicable Law and Discussion

You first inquire concerning the applicability of two United States Supreme Court decisions.1 as they relate to access to civil and criminal documents that are stored exclusively in digital format. In the case of Richmond Newspapers, Inc. v. Virginia, the Supreme Court of the United States specifically held, for the first time, that a trial judge cannot exclude members of the press from a criminal trial, stating that "a presumption of openness inherent in the very nature of a criminal trial under our system of justice."[2] The Court further notes that the First Amendment protests "[t]he explicit, guaranteed rights to speak and to publish concerning what takes place at a trial," and that such a right "would lose much meaning if access to observe the trial could . . . be foreclosed arbitrarily."[3]

The limits of this presumption of openness for criminal trials were at issue in Globe Newspaper Co. v. Superior Court for the County of Norfolk, where a Massachusetts statute required the exclusion of the press and general public during the testimony of a minor victim regarding certain sexual offenses.[4] The Court rejected the application of mandatory exclusions, noting that where "the State attempts to deny the rights of access in order to inhibit the disclosure of sensitive information," such conclusion may stand only if it is "shown that the denial is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest."[5] The right of access, however, is not absolute.[6] "[T]he circumstances under which the press and public can be barred from a criminal trial are limited: the State’s justification in denying access must be a weighty one."[7] Exclusions from criminal proceedings, therefore, are not unconstitutional but must meet both the "compelling governmental interests" and "narrow tailoring" tests to be sustained.

These two cases pertain to the openness of criminal trials and not to the openness of court records. The United States has held that "the courts of the country recognize a general right to inspect and copy public records and documents, including judicial records," and that such right is of common law origin.[8] The right of access to court records is preserved at common law rather than under the First Amendment, and is fully subject to applicable statutes and other constitutional provisions.[9]

There are numerous exceptions to the presumption of openness. A court may seal records under its inherent power to control trial proceedings. As observed by the Supreme Court, "[e]very court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes."[10] Nor does this presumption permit the independent testing of evidence in criminal proceedings.[11] Additionally, the General Assembly has provided for the sealing of and the denial of access to specific records, with certain exceptions.[12] Most records, however, held in a circuit court clerk’s officer, including land records,[13] are nonconfidential records required to be open to the public and are not subject to exception.[14]

Your next inquiry concerns the statutory obligations imposed on a circuit court clerk to provide copies of digital databases requested by a citizen. Your question pertains to court records and digital databases of land records in the custody of the clerk.

Section 2.2-3701 of The Virginia Freedom of Information Act[15] defines "public records" 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." This definition is sufficient to include the court and land records in a circuit court clerk’s office. Section 2.2-3704(G) requires that records in electronic format "shall be made available to a requester at a reasonable cost." Section 2.2-3705(A) contains eighty-one exemptions to the mandatory disclosure provisions of the Act. If an electronic record contains both exempt and nonexempt information, access must be provided to that portion of the record that is nonexempt.[16]

Section 17.1-208 mandates that "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 specially provided." Section 17.1-208 further requires that such inspection will not interfere with the business of the clerk’s office or reasonable use by the public. Section 17.1-242 provides that the clerk "shall have custody of an shall keep all . . . records, [including] records stored in electronic format whether the storage media for such electronic records are on premises or elsewhere." The Supreme Court of Virginia has noted that "[§17.1-208] makes no distinction between criminal and civil proceedings."[17] Moreover, the Court has held that §17.1-208 creates "a rebuttable presumption of public access . . . in civil proceedings to judicial records."[18]

The clerk’s affirmative duty to provide records, as set forth in The Virginia Freedom of Information Act[19] and under §17.1-208 applies to both paper and electronic records. Section 2.2-3700(B) of the Act requires that "[a]ny exemption from public access to records . . . shall be narrowly construed" and that any such exemption must relate to a "specific provision of law." I also note that §17.1-279(B) imposes an obligation on circuit court clerks who seek funding from the Technology Trust Fund to develop systems providing "statewide remote access to land records."

Consequently, the clerk of a circuit court has a statutory duty to provide copies of digital databases of all records requested by a citizen, unless sealed by court order or otherwise specifically exempted by law. This duty applies to court records as well as to land records.[20]

Conclusion

It is my opinion that the two United States Supreme Court decisions you reference are not applicable to whether a circuit court clerk has a duty to provide public access to digital copies of the court’s database of judicial or court records. It is my opinion that there is a presumption of openness of court records that has its origins in the common law, and the Virginia statutory law creates a presumption of openness with regard to requests for court records in digital format. Specifically, The Virginia Freedom of Information Act and §17.1-208 impose a duty on circuit court clerks to furnish copies of records requested by a citizen, without distinctions between paper and digital formats, provided the records are not sealed by court order or otherwise exempt from disclosure by law.

With kindest regards, I am

Very truly yours.

s/ Jerry Kilgore
Jerry W. Kilgore
Attorney General

Footnotes:

1. Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).

2. Richmond Newspapers, 448 U.S. at 573.

3. Id. at 576-77.

4. Globe Newspaper, 475 U.S. at 596.

5. Id. at 606-07.

6. "Although the right of access to criminal trials is of constitutional stature, it is not absolute." Id. at 606. "The First and Fourteenth Amendments of the United States Constitution implicitly guarantee the public a qualified right of access to a criminal trial." Shenandoah Publishing v. Fanning, 235 Va. 253, 257, 368 S.E.2d 253, 255 (1988) (citing Richmond Newspapers, 448 U.S. at 580).

7. Globe Newspaper, 475 U.S. at 606.

8. Nixon v. Warner Communications Inc., 435 U.S. 589, 597 (1978); see also Shenandoah Publishing, 235 Va. at 258, 368 S.E.2d at 255 (1988) (footnote omitted) (construing legislative history of § 17-43, predecessor to § 17.1-208).

9. See Va. Code Ann. § 1 -- 10 (LexisNexis Repl. Vol. 2001) (continuing common law of England, insofar as it is not repugnant to principles of Bill of Rights and Constitution of Virginia and is not altered by General Assembly).

10. Nixon, 435 U.S. at 598; see also Charlottesville Newspapers v. Berry, 215 Va. 116, 117-18, 206 S.E.2d 267, 268 (1974).

11. Globe Newspaper Company v. Commonwealth, No. 012682, 2002 Va. LEXIS 156 (Nov. 1, 2002) (refusing to expand right of access to courts to include right of newspapers to conduct independent testing of evidence using modern methods that could establish guilt of defendant already executed for offense).

12. See, e.g., Va. Code Ann. § 2.2-3808.1 (LexisNexis Repl. Vol. 2001) (social security number on certain payments); § 16.1-305 (LexisNexis Supp. 2002) (juvenile records); § 19.2-299 (LexisNexis Supp. 2002) (presentence reports).

13. Va. Code Ann. §§ 17.1-223 to 17.1-229 (Michie Repl. Vol. 1999 & LexisNexis Supp. 2002).

14. I note, however, that certain personal information, such as social security numbers, may not be appropriate for inclusion in a public record. The Identity Theft Task Force of the Attorney General has recommended that Virginia law be modified in this area to prevent identity theft. See The Report of the Attorney General’s Identity Theft Task Force (Oct. 29, 2002), at http://www.oag.state.va.us/Protecting/Consumer%20Fraud/ID%20TASK%20Force/IDTHEFTFINALRPT.pdf.

15. Va. Code Ann. §§ 2.2-3700 to 2.2-3714 (LexisNexis Repl. Vol. 2001 & Supp. 2002).

16. See § 2.2-3705(D) (LexisNexis Supp. 2002).

17. Shenandoah Publishing, 235 Va. at 258, 368 S.E.2d at 255 (interpreting predecessor § 17-43).

18. Id. at 258, 368 S.E.2d at 256.

19. "For the purposes of [The Virginia Freedom of Information Act] applicable to access to public records, constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records." Section 2.2-3701 (LexisNexis Supp. 2002) (defining "public body").

20. The 2002 Session of the General Assembly established a joint legislative study committee to study the protection of information contained in court records available on the Internet and will submit its written findings and recommendations to the Governor and the 2003 Session of the General Assembly. 2002 Va. Acts H.J. Res. 89, at 2769, 2769-70.