PRESENT: Mims, McClanahan, Powell, Kelsey, and McCullough, JJ., and Russell and
Millette, S.JJ.
THE DAILY PRESS, LLC, ET AL.
OPINION BY
v. Record No. 160889 JUSTICE STEPHEN R. McCULLOUGH
June 29, 2017
OFFICE OF THE EXECUTIVE SECRETARY
OF THE SUPREME COURT OF VIRGINIA, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
David F. Pugh, Judge
The question before us on appeal is whether the Virginia Freedom of Information Act,
Code § 2.2-3700 et seq. (“VFOIA”) entitles The Daily Press to obtain a copy of a database from
the Office of the Executive Secretary of the Supreme Court of Virginia (“Executive Secretary”)
or whether, instead, The Daily Press must ask each jurisdiction’s clerk of court for certain court
records. The answer turns on whether the Executive Secretary is the legal custodian of court
records or whether the clerks of court fulfill that role. We conclude that the clerks of court are
the statutorily designated custodians of court records and, therefore, The Daily Press must make
its request to them, not to the Office of the Executive Secretary. Consequently, we affirm the
judgment of the trial court.
BACKGROUND
The Daily Press publishes a daily newspaper that is circulated on the Virginia Peninsula
and surrounding communities. It also publishes stories that are available on the internet. David
Ress is a reporter for The Daily Press. Ress has written articles for The Daily Press about race
and the criminal justice system. Ress made a request to the Executive Secretary under the
Virginia Freedom of Information Act asking for a searchable version of a database hosted on
servers operated and housed at the Executive Secretary’s offices in Richmond. The Executive
Secretary took the position that the circuit court clerks are the custodians of the requested
information and that the request should be addressed to them. The Executive Secretary reached
out to the 118 individual clerks whose information it hosted to request permission to provide this
information to The Daily Press. Fifty of the clerks consented to allow the Executive Secretary to
provide the information; sixty-eight clerks objected.
The Daily Press and Ress filed a petition for a writ of mandamus to compel the Executive
Secretary to honor the request. The Executive Secretary defended the petition by arguing,
among other things, that it is not the custodian of the records. In addition, the 68 objecting clerks
of court were joined as necessary parties.
The court heard evidence about the respective duties of clerks of court and the Executive
Secretary. Among other duties, the Executive Secretary serves as “the administrator of the
circuit court system, which includes the operation and maintenance of a case management
system.” Code § 17.1-502(A). In its capacity as court administrator, the Executive Secretary has
created, operated and maintained multiple electronic systems. One of those systems is the
Circuit Case Management System (“CCMS”), an electronic case management database. CCMS
can be used to monitor the status of cases, prepare orders and forms, prepare civil and criminal
reports, generate a master calendar for the courts, and assemble daily dockets. CCMS was
created in the 1980s. The clerks decide whether to use CCMS or a different system. The great
majority of the clerks of the circuit courts – 118 out of 120 – have opted to use CCMS.
Clerks enter case information data into the CCMS database. This data includes a range of
information about the defendant and information relating to the case, and it also includes
personal information such as birthdays and social security numbers. The CCMS database is
stored on a computer server that is located in the Executive Secretary’s office in Richmond. The
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Executive Secretary owns the server. The Executive Secretary does not enter data into CCMS.
The clerks bear the responsibility of deleting data or records from CCMS.
The Online Case Information System, or OCIS, is another database that resides on
servers at the Executive Secretary’s offices. OCIS is designed to provide broader public access
to case information through the internet. Like CCMS, clerks must elect to participate in OCIS.
Clerks who have chosen to participate have provided written authorization to the Executive
Secretary to display the case data through this database. A clerk who chooses to participate in
OCIS can limit the date range of cases that can be viewed and the types of cases that can be
viewed. The Executive Secretary honors the clerks’ directions with respect to what information
it displays on OCIS. To create the OCIS database, the Executive Secretary licenses database
software which replicates information contained in the CCMS database and creates a new,
second database. OCIS is an exact copy of the CCMS database. The copying process
automatically occurs every 15 minutes. Unlike CCMS, OCIS is a read-only database; that is, its
content cannot be changed.
Through OCIS, members of the public can search for a particular case through a party’s
name, hearing date, or case number. OCIS provides information about specific cases in a
particular jurisdiction. Statewide searches are not available and neither are bulk-data downloads
of case information. Software limits the information that the public can see through the OCIS
system. For example, the public cannot see birthdates and social security numbers.
The trial court denied the petition for mandamus, reasoning that
the public records sought by the Daily Press and contained in the
online case information system (OCIS) database are not in the
“custody” of [the Executive Secretary], as that term is used in
Virginia’s Freedom of Information Act, and, instead, each circuit
court clerk is the custodian of that clerk’s respective case data
contained in the OCIS database.
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This appeal followed.
ANALYSIS
At the outset, it is worth emphasizing that this Court’s role is limited. Public policy
questions concerning where to draw the line with respect to VFOIA fall within the purview of
the General Assembly. In a regime of separated powers that assigns to the legislature the
responsibility for charting public policy, our function is limited to adjudicating a question of law:
does VFOIA compel the Executive Secretary to answer the request from The Daily Press or does
the law instead require The Daily Press to make its VFOIA request to individual Clerks of
Court?
Because the issue before us is a matter of statutory interpretation, we review the trial
court’s decision de novo. Fitzgerald v. Loudoun Cnty. Sheriff’s Office, 289 Va. 499, 504, 771
S.E.2d 858, 860 (2015).
I. CLERKS OF COURT ARE THE EXPRESSLY DESIGNATED CUSTODIANS OF COURT
RECORDS.
VFOIA requires “public records” to be “open to inspection and copying by any citizens
of the Commonwealth during the regular office hours of the custodian of such records.” Code
§ 2.2-3704(A). It is undisputed that the Executive Secretary is a “public body” as that term is
defined by VFOIA. A Virginia citizen making a VFOIA request must make that request to the
custodian of the record. Id. VFOIA, however, does not define the term “custodian.”
The Executive Secretary and the court clerks point to Code § 17.1-242 to argue that the
clerks of court are the designated custodians of court records. That statute provides as follows:
The circuit court clerks shall have custody of and shall keep all
court records, including books, evidence, records, maps, and
papers, deposited in their offices or at such location otherwise
designated by the clerk, as well as records stored in electronic
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format whether the storage media for such electronic records are
on premises or elsewhere.
The Executive Secretary and the clerks rely on this statute to argue that the clerks of court are the
statutorily designated custodians of what are indisputably court records, and, therefore, The
Daily Press must make its records request to the clerks of court.
While in the construction of statutes the constant endeavor of the
courts is to ascertain and give effect to the intention of the
legislature, that intention must be gathered from the words used,
unless a literal construction would involve a manifest absurdity.
Where the legislature has used words of a plain and definite import
the courts cannot put upon them a construction which amounts to
holding the legislature did not mean what it has actually expressed.
Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins
v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). We conclude that Code § 17.1-242 plainly
establishes the clerks as the custodians of the court records. In addition, this statute plainly
provides that the clerks’ custody extends to court records that are “stored in electronic format”
and that they remain custodians even if the electronic records are stored off premises, in this
instance at the Executive Secretary’s offices. Because the clerks of court are the expressly
designated custodians of court records, The Daily Press must address its VFOIA request to them.
This straightforward reading of Code § 17.1-242 is bolstered by a 2002 official opinion
of the Attorney General. Although the question addressed in the opinion was different, the
reasoning is germane to the question before us. Relying on Code § 17.1-242, the Attorney
General explained that
the circuit court clerk is responsible for the integrity of all records
maintained by the clerk’s office. That responsibility is not shared
with any other court official, but rests exclusively with the elected
clerk of the circuit court . . . .
Accordingly, I must conclude that automated case management
systems maintained by the clerk of a circuit court, whether the
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storage media is on or off premises, are records of the clerk’s
office under the custody of such clerk. Access to such a case
management system lies within the sound discretion of the clerk.
2002 Op. Atty. Gen. Va. No. 02-026 (April 04, 2002). The Attorney General reiterated this
conclusion in 2013. 2013 Op. Atty. Gen. Va. No. 13-047 (August 20, 2013). The General
Assembly has taken no corrective action to dispel the Attorney General’s conclusion that the
clerk of court is the official who has custody of court records.
This designation of court clerks as the custodians of court records accords with
longstanding historical practice. Clerks of court have borne the responsibility of maintaining
court records for public access since colonial times. See 1 William Waller Hening, Statutes at
Large 303-04 (1823) (citing the Act X of November 1645 under King Charles I, designating
“clerkes [sic] of the courts . . . [to] keep records of the proceedings of all actions and causes
aforesaid”); see also Hugh F. Rankin, The General Court of Colonial Virginia, Colonial
Williamsburg Foundation Library Research Report Series – 0088, Colonial Williamsburg
Foundation Library (1958) (“The Clerk of the General Court was responsible for keeping the
records of the court . . . the publication of court orders, issuing subpoenas, and the preparation of
the court docket.”).
The VFOIA directs persons who wish to obtain public records to direct the request at the
custodian of the records. Code § 17.1-242 designates the clerks of court as the custodians of
court records. Both CCMS and OCIS are indisputably “court records.” Accordingly, a request
for court records must be made to the custodian of those records, the clerks of court.
The Daily Press makes several arguments to resist this conclusion. First, it argues that
Code § 17.1-242 is irrelevant and that we should instead look exclusively to VFOIA as the sole
text to determine who is the custodian of a record. Code § 17.1-242 is not part of VFOIA. The
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term “custodian” is not defined in VFOIA, so, The Daily Press argues, we should give that word
its ordinary meaning, namely, someone who has possession of something. Since the Executive
Secretary is a “public body” in possession of a “public record,” it is the “custodian” of the record
and, therefore, the database must be disclosed.
We conclude that this is the wrong approach. VFOIA states that public records must be
open to copying and inspection from the custodian, “[e]xcept as otherwise specifically provided
by law.” Code § 2.2-3704. We agree that in the ordinary situation, a “custodian” for VFOIA
purposes is the public body in possession of such a record. It is certainly possible that there
might be more than one custodian of a public record. With respect to court records, however, the
General Assembly has “otherwise specifically provided by law” by designating court clerks as
the persons who have custody of court records. Therefore, a VFOIA request for court records
must be made to them. 1
This conclusion draws further support from the functions the General Assembly has
ascribed to court clerks and to the Executive Secretary. A wide range of statutes call for clerks
of court to maintain court records for, among other things, public access. See Code § 17.1-206
et seq. The Executive Secretary, on the other hand, is tasked with a support role for “the circuit
court system, which includes the operation and maintenance of a case management system.”
Code § 17.1-502(A). The General Assembly’s designation of circuit court clerks as the
custodians of court records in Code § 17.1-242 is part of an overall statutory scheme that
delineates for circuit court clerks the role of maintaining court records and providing the public
1
The clerks intimate that VFOIA may not apply at all to them, at least with certain kinds
of public court records. We do not address this question, because it is not before us. What is
before us is a VFOIA request addressed to the Executive Secretary and whether the Executive
Secretary must answer such a request or whether that request should be directed elsewhere.
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with access to court records. The General Assembly has allocated a support role for the
Executive Secretary. The fact that the Executive Secretary supplies the software and server
hardware for CCMS and OCIS does not render the Executive Secretary the custodian of the court
records any more than if the Executive Secretary had supplied the clerks with the ink, paper, and
file cabinets to generate and store these records.
Amicus for The Daily Press argues that Code § 17.1-242 is limited to records that are
“deposited” in the clerks’ offices. The plain language of Code § 17.1-242, however, does not
lend itself to this construction. It designates clerks as the custodians of “all court records,” which
certainly includes those records that are “deposited in their offices,” but the statute further
designates the clerks as custodians of all “records stored in electronic format whether the storage
media for such electronic records are on premises or elsewhere.” Id.
The Attorney General also points to Code § 2.2-3704(J), which specifies that
[i]n the event a public body has transferred possession of public
records to any entity, including but not limited to any other public
body, for storage, maintenance, or archiving, the public body
initiating the transfer of such records shall remain the custodian of
such records for purposes of responding to requests for public
records made pursuant to this chapter and shall be responsible for
retrieving and supplying such public records to the requester.
Disputing the applicability of this provision, The Daily Press argues that no records were ever
“transferred” to the Executive Secretary. We disagree. The evidence establishes an agreement
between the clerks of court and the Executive Secretary to transfer custody of computerized
court records from the moment of their creation to the Executive Secretary. Here, the record is
the data. The clerks of court enter case information and case management data into a computer
system. In so doing the clerks are either creating or updating an electronic record. Once they
have keyed in the information, the clerks then transfer the data via electronic impulse to the
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Executive Secretary servers, where the data is stored. To “transfer” simply means “to carry or
take from one person or place to another” or “to cause to pass from one person or thing to
another: transport.” Webster’s Third New International Dictionary 2426-27 (1993). Code
§ 2.2-3704(J) establishes that when clerks create or update a record and then send or transfer that
record to the Executive Secretary, that transfer does not turn the Executive Secretary into the
custodian of the record.
Amicus for The Daily Press seeks to draw a distinction between a “stream of data” and a
“record” for purposes of VFOIA. The term “public records” is very broadly defined as
all writings and recordings that consist of letters, words or
numbers, or their equivalent, 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.
Code § 2.2-3701. With computer database systems, to which data is constantly added, and
which data are transmitted and stored electronically, the electronically stored data is the public
record. The data constitute letters, words, and numbers, that are “prepared” by the clerks “in the
transaction of public business.” Any distinction between “records” and “data” in this context
would be entirely artificial.
The Daily Press also raises the prospect that governmental actors could play a confusing
shell game, shifting records from one governmental actor to another and thereby thwarting public
access. We see little danger of such a practice here. The Code expressly designates the clerks as
custodians of court records. Clerks have served as the custodians of court records for centuries.
The public knows or can easily find out where to ask for court records.
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The Daily Press also attempts to draw a distinction between CCMS and OCIS. It stresses
the fact that OCIS is an entirely different database that is created by the Executive Secretary
when it duplicates CCMS. First, like CCMS, OCIS is a “court record” brought into being by the
consent of a clerk of court, to serve the needs of court clerks, and of which the clerks statutorily
have custody under Code § 17.1-242. Second, Code § 2.2-3704(G) provides that “[t]he excision
of exempt fields of information from a database or the conversion of data from one available
format to another shall not be deemed the creation, preparation, or compilation of a new public
record.” Therefore, when the Executive Secretary uses database replication software to create
OCIS, which is a read-only copy of CCMS, it does not create a new record for purposes of
FOIA.
Finally, The Daily Press cites the provisions of Code § 2.2-3700, which call for the
provisions of VFOIA to be “liberally construed to promote an increased awareness by all persons
of governmental activities and afford every opportunity to citizens to witness the operations of
government.” Code § 2.1-3700(B). The liberal construction of a statute is one thing.
Substituting our judgment for what the General Assembly has expressed would be another. The
General Assembly has expressly designated the clerks as the custodians of court records. The
issue before us, moreover, is not whether records should be made public or shielded from public
view. There is no question the public can gain access to a wide range of court records. The
question is which governmental entity should respond to The Daily Press’ request under VFOIA
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for public records. Here, court clerks are the expressly designated custodians of the public
records sought by The Daily Press. 2
CONCLUSION
For these reasons, the judgment below will be affirmed. 3
Affirmed.
2
We have considered United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136
(1989), cited by The Daily Press, but consider it inapposite due to the differences in statutory
language between the VFOIA and its federal counterpart.
3
In light of our holding, The Daily Press’ request for attorney’s fees is moot.
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