VIRGINIA FREEDOM OF INFORMATION ACT. CRIMINAL FILES IN CIRCUIT COURT CLERK'S OFFICE SUBJECT TO DISCLOSURE WITH CERTAIN EXCEPTIONS.

January 14, 1983

The Honorable J. Curtis Fruit
Clerk Circuit Court for the City of Virginia Beach

82-83 709

This is in reply to your recent letter requesting an Opinion whether criminal files, both felony and misdemeanor, filed in your office are open for public inspection.

Section 2.1-342 of the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"), provides in pertinent part:

"Except as otherwise specifically provided by law, all oral records shall be open to inspection and copying by any citizens of this Commonwealth during the regular office hours of the custodian of such records." (Emphasis added.)

Additionally, 17-43 provides, in part:

"The records and papers of every 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 (Emphasis added)

We must, therefore, look to other sections of the Code to ascertain whether the records in question are exempt from disclosure.

First, §2.1-342(b)(1) excludes from the disclosure requirements of the Act, "[m]emoranda, correspondence, evidence and complaints related to criminal investigations' Therefore, if active investigative records were contained in the clerk's files, disclosure of such records would not be mandated by the Act.¹

Second, §19.2-389 restricts the dissemination of criminal history record information.² Sections 9-184³ and 9-187,⁴ when read together, provide that court records of public criminal proceedings are not subject to the restrictions of §19.2-389 which authorizes the dissemination by the Central Criminal Records Exchange of criminal history record information only to certain specified persons and entities. Additionally, §19.2-299 provides that pre-sentence reports made by probation officers are to be sealed upon the entry of a sentencing order and may only be made available by court order or to certain specified persons or criminal justice agencies. Thus, presentence reports contained in the clerk's files may not be made public.

Third, Art. 12, Ch. 11 of Title 16.1 governs the dissemination of records concerning juveniles If the clerk's files contain juvenile records which may not be made public pursuant to Title 16.1, such records shall retain their confidentiality and are not subject to the Act.

In summary, if the clerk's files contain pre-sentence reports made pursuant to §19.2-299 or protected information regarding a juvenile, the records containing such information would not be subject to disclosure under either the Act or §17-43.⁵ Similarly, if the clerk's file contains memoranda, correspondence, evidence and complaints related to active criminal investigations, such records would not be subject to the mandatory disclosure provisions of the Act.⁶ All other records in the clerk's file would be subject to disclosure under the Act.

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Footnotes:

1 See 1980-1981 Report of the Attorney General at 392.

2 Section 9-169 defines "criminal history record information" to mean "records and data collected by criminal justice agencies on adult individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal charges, and any disposition arising therefrom. The term shall not include juvenile record information which is controlled by Chapter 11 (§16.1-226 et seq.) of Title 16.1 of this Code, criminal justice intelligence information, criminal justice investigative information, or correctional status information.

3 Section 9-184 provides in pertinent part: `B. The provisions of this article [regarding the criminal justice information system] do not apply to original or copied...(ii) court records of public criminal proceedings...."

4 Section 9-187 provides: "Criminal history record information shall be disseminated, whether directly or through an intermediary, only in accordance with 19.2-389."

5 See Opinion rendered December 15, 1982, to the Honorable William P. Robinson, Jr., Member, House of Delegates, which holds that if records contain information which by law may not be made public, the Act would not require their disclosure.

6 Id.