Present: All the Justices
YVONNE G. SMITH
OPINION BY
v. Record No. 000337 JUSTICE LAWRENCE L. KOONTZ, JR.
January 12, 2001
RICHMOND NEWSPAPERS, INC., ET AL.
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
In this appeal, we consider whether audio tape recordings
of a felony criminal trial are open to inspection by the public
under Code § 17.1-208 and, if so, whether mandamus is the proper
remedy to compel the clerk of the trial court to allow such
inspection.
BACKGROUND
The facts have been stipulated. Yvonne G. Smith (the
Clerk) is the Clerk of the Circuit Court of Henrico County. It
is the practice of that court to record audio tapes of felony
criminal trials when a court reporter is not present. These
audio tapes are recorded on equipment kept in the courtrooms and
operated by court personnel. When the trials are concluded, the
audio tapes are kept in the Clerk’s office. Should a written
transcript be required of a trial recorded on one of these audio
tapes, a court reporting service will prepare the transcript.
Otherwise, the only record of the trial are the audio tapes
themselves.
On June 2, 1999, Thomas C. Campbell, a reporter for
Richmond Newspapers, Inc., which publishes the Richmond Times-
Dispatch, asked the Clerk if he could listen to the audio tapes
of a specific trial for which no written transcript had been
prepared. The Clerk denied this request.
On June 3, 1999, Richmond Newspapers, Inc. and Campbell
(the petitioners) petitioned the circuit court for a writ of
mandamus directing the Clerk to allow them, or any person, to
listen to the audio tapes. 1 In addition to her answer to the
petition for mandamus, the Clerk filed a demurrer to the
petition, asserting that the audio tapes are not a record open
to inspection pursuant to Code § 17.1-208. The Clerk further
asserted that mandamus does not lie because the duty sought to
be enforced is discretionary and that the petitioners do not
have a clear right to the relief sought. Thereafter, the
circuit court conducted a hearing on the pleadings, supporting
briefs, and the stipulated facts.
By order dated November 19, 1999, the circuit court
concluded that a “tape recording of [a] felony trial[] is a
record of the trial and thus open for public inspection.”
1
In the petition for mandamus, the petitioners made
reference to Code § 17-43, the predecessor statute to Code
§ 17.1-208. Title 17 was superseded by Title 17.1 effective
October 1, 1998 without material change concerning the issue
presented by this appeal. Accordingly, we will address the
current statute in this opinion.
2
Accordingly, the trial court awarded mandamus and directed that
the Clerk “allow the petitioners, or any person, to listen to
requested audio tapes of felony trials conducted in the Circuit
Court of Henrico County that are maintained in her office.” We
awarded the Clerk this appeal.
DISCUSSION
In support of her position that audio tape recordings of
felony criminal trials are not records of the circuit court
within the purview of Code § 17.1-208, the Clerk places primary
reliance upon our decision in Shenandoah Publishing v. Fanning,
235 Va. 253, 368 S.E.2d 253 (1988). She asserts that Shenandoah
Publishing stands for the proposition that the records which are
required to be open for inspection pursuant to this statute are
those “records as that term is defined in Rule 5:10,” which
provides for the contents of the record on appeal from the trial
court to this Court. Rule 5:10, however, was not discussed in
the Shenandoah Publishing opinion, and the Court nowhere in that
decision defined the trial court records that must be open for
inspection by reference to the components of the appellate
record listed in that rule. Nonetheless, the Clerk asserts that
because audio tape recordings are not mentioned in Rule 5:10,
such recordings are not included within the meaning of records
of the circuit court under Code § 17.1-208.
3
The Clerk’s reliance upon Shenandoah Publishing is
misplaced. There, in a medical malpractice case, we were
concerned with public access, under the predecessor of Code
§ 17.1-208, to certain data sealed by the trial court after the
parties reached a compromise settlement. “To facilitate our
analysis, we separate[d] the data sealed by the trial court into
two classes[:]” pretrial documents and judicial records.
Shenandoah Publishing, 235 Va. at 256-57, 368 S.E.2d at 254-55.
The documents classified as judicial records were held to
“include the pleadings and any exhibits or motions filed by the
parties and all orders entered by the trial court in the
judicial proceedings leading to the judgment under review.” Id.
at 257, 368 S.E.2d at 255. Pursuant to the “broad sweep” of the
language contained in what is now Code § 17.1-208 and the
generally accepted common-law rule of openness of judicial
proceedings and judicial records, we concluded that the trial
court erred in sealing these judicial records. Id. at 258-60,
368 S.E.2d at 255-56. No audio tape recordings or transcripts
of the proceedings were involved in Shenandoah Publishing.
Moreover, nothing in that case even suggests that we intended
our classification of the data involved in that case to be a
comprehensive and exclusive definition of “records” for purposes
of determining the application and scope of Code § 17.1-208.
4
Finally, the Clerk asserts that Code § 8.01-420.3 and Rule
1:3 support her position. She argues that a transcript of the
trial is the most apt analogue to the tape recording at issue
here. Thus, because this statute is consistent with the
provision of Rule 1:3 that trial transcripts may be made
available to interested persons “upon terms and conditions to be
fixed in each case by the judge,” trial transcripts, or audio
tape recordings, are not “open to inspection” under Code § 17.1-
208. We disagree with this reasoning. Code § 8.01-420.3 and
Rule 1:3 specifically address transcripts of the proceedings and
the circumstances under which copies may be obtained. Audio
tape recordings are not transcripts of the proceedings, and here
we are concerned only with the inspection of these tapes and not
a request to obtain copies of them.
While we disagree with the Clerk’s reasoning above, this
does not resolve the question whether these audio tape
recordings of felony criminal trials are “records” of the
circuit court open to inspection as contemplated by the
provisions of Code § 17.1-208, and we now turn to our analysis
of that question. Although not cited by either party, we begin
that analysis with the provisions of Code § 19.2-165, which are
particularly relevant to the inquiry sub judice. This statute
specifically directs that “[i]n all felony cases, the court or
judge trying the case shall by order entered of record provide
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for the recording verbatim of the evidence and incidents of
trial either by a court reporter or by mechanical or electronic
devices approved by the court.” (Emphasis added). This statute
further provides that the expense of recording the trial shall
be paid by the Commonwealth to the localities that maintain
mechanical or electronic devices for this purpose, unless the
defendant is convicted and, thus, required to bear that expense.
Pursuant to this statute, no transcript is prepared unless the
defendant appeals his conviction. In addition, the statute in
broad terms directs the individual designated to record the
trial to file the “original records” with the clerk of the
circuit court “who shall preserve them in the public records of
the court for not less than five years if an appeal was taken
and a transcript was prepared, or ten years if no appeal was
taken.”
In the instant case, the audio tapes are the only verbatim
recording of the evidence and incidents of the felony criminal
trial in question. There is no dispute that the audio tapes
were produced by a mechanical or electronic device approved by
the court and that court personnel designated to record the
trial operated that device. Furthermore, there is no dispute
that the audio tapes were properly filed with the Clerk who,
pursuant to this statute, must preserve it in the public record
of the circuit court for at least five years. Under such
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circumstances, and in view of the undisputed tradition of
openness to criminal proceedings in this Commonwealth, we are of
opinion that when, as here, the audio tape recording of a felony
criminal trial is the only record of that trial, it is a
“record” of the court as contemplated by the provisions of Code
§ 17.1-208 and, thus, open to inspection by any person.
Accordingly, we hold that the circuit court properly so
determined. 2
We turn now to the issue whether the mandamus was properly
issued by the circuit court. We recognize that mandamus is an
extraordinary remedy that lies only where there is a clear and
unequivocal duty of a public official to perform the act in
question. Hertz v. Times-World Corp., 259 Va. 599, 607, 528
S.E.2d 458, 462 (2000); see also Early Used Cars, Inc. v.
Province, 218 Va. 605, 609, 239 S.E.2d 98, 101 (1977). In
support of her position that mandamus is not the proper remedy
in this case, the Clerk reasserts that the petitioners do not
have a clear right to be permitted inspection of the audio tape
recordings. For the reasons previously stated herein there is
no merit to this assertion.
2
However, to the extent that the phase “open to inspection”
in the context of audio tapes needs any clarification, we hold
that this phrase means that one inspects audio tapes by
listening, and not merely by viewing.
7
The Clerk further reasserts that to the extent that she has
a duty to permit inspection of the audio tape recordings
pursuant to Code § 17.1-208, that duty is discretionary, not
ministerial. This is so, she contends, because she “would be
undertaking a judicial role were she to permit the tape
recordings to be released, inasmuch as Rule 1:3 permits
transcripts of proceedings to be released only pursuant to terms
fixed by a judge.” We disagree.
The release of the audio tapes is not at issue in this
case. The petitioners requested permission to listen to the
tapes; they did not request copies or to remove the tapes from
the clerk’s office. Similarly, the mandamus merely directed the
Clerk to allow the petitioners, or any person, “to listen” to
these tapes.
Finally, the Clerk makes the following assertion:
In addition, § 17.1-208 prohibits persons from
using the clerk’s office as will interfere with the
business of the office. The petitioners’ request
would require [her] to make the discretionary decision
whether permitting a person to listen to a tape
recording of a trial would interfere with her office’s
business. For example, if the petitioners intended to
use their own tape recorder to listen to the tape, the
noise and disturbance therefrom (unlike the situation
where a document is being inspected) could result in
such interference. And if petitioners intended to use
a county tape recorder, that, too, could result in
interference with the operations of the Clerk’s
office. Either way, [she] would be obligated to make
a discretionary decision as to whether the
petitioners’ request would interfere with her office’s
business.
8
The pertinent language from Code § 17.1-208 states that:
“[n]o person shall be permitted to use the clerk’s office for
the purpose of making copies of records in such a manner, or to
such extent, as will interfere with the business of the office
or with its reasonable use by the general public.” As
previously noted, we are not here concerned with a request to
make copies. Moreover, while we agree that the Clerk certainly
has the discretion to determine the manner in which a person may
be permitted to listen to the audio tape recordings so that such
does not interfere with the business of the office, that
discretion simply does not extend to a complete denial of the
right to listen to the tapes. And we are confident that the
clerks of the circuit courts are entirely adept in making the
necessary ministerial decisions to strike a reasonable balance
between providing the public the right to listen to these audio
tape recordings of felony criminal trials and avoiding any
interference with the other business of their offices.
CONCLUSION
For the reasons stated above, we hold that the circuit
court properly concluded that the audio tape recordings were
records of the circuit court and open to inspection pursuant to
Code § 17.1-208 and that mandamus was the proper remedy to
direct the Clerk to permit the petitioners to listen to these
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tapes. Accordingly, we will affirm the issuance of the writ of
mandamus by the circuit court.
Affirmed.
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