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July 21, 2003
Mr. Arnold Thielen
President, MIXNET Corporation
Fairfax, Virginia
The staff of the Freedom of
Information Advisory Council is authorized to issue advisory
opinions. The ensuing staff advisory opinion is based solely upon
the information presented in your correspondence of June 17,
2003.
Dear Mr. Thielen:
You have asked two questions relating to access to court records
under the Virginia Freedom of Information Act (FOIA). First, you
ask if a clerk of a circuit court would be required to provide
digital copies of its digital databases of land conveyance
documents or other court records not sealed by the court or subject
to an exemption. Secondly, you ask if the clerk of the court may
only offer paper copies at 50 cents each in lieu of digital copies
of the real estate transfer records when the request is made for
the digital index and associated digital images.
The Virginia Freedom of Information Advisory Council has
specifically addressed your first question in a prior
opinion.1 Subsection A of §
2.2-3704 of the Code of Virginia states that [e]xcept as
otherwise specifically provided by law, all public records shall be
open to inspection and copying. Section 2.2-3701 defines a
public body as any legislative body, authority, board, bureau,
commission, district or agency of the Commonwealth or of any
political subdivision of the Commonwealth, including cities, towns
and counties, municipal councils, governing bodies of counties,
school boards and planning commissions; boards of visitors of
public institutions; and other organizations, corporations or
agencies in the Commonwealth supported wholly or principally by
public funds. (Emphasis added.) The Office of the
Attorney General of Virginia has found that this definition
includes a circuit court as an agency of the state supported wholly
or principally by public funds.2 In
addition to falling under the definition of a public body in FOIA,
§ 17.1-208 states that [e]xcept as otherwise provided by
law, 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
specifically provided.
FOIA defines a public record at § 2.2-3701 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, prepared or owned by, or in the
possession of a public body or its officers, employees or agents in
the transaction of public business. More specifically,
subsection G of § 2.2-3704 states that [p]ublic records
maintained by a public body in an electronic data processing
system, computer database, or any other structured collection of
data shall be made available to a requester. Furthermore, the
section explicitly states that if a database contains exempt and
nonexempt information, the public body must provide access to the
nonexempt portions. Based upon these statutes, it makes no
difference for purposes of FOIA whether a public record is a sheet
of paper or a computer file -- either must be released upon
request, unless specifically exempt by law.3
Subsection G of § 2.2-3704 states that [p]ublic bodies
shall produce nonexempt records maintained in an electronic
database in any tangible medium identified by the requester...if
that medium is used by the public body in the regular course of
business. Thus, because the records are already maintained in a
digital format, a requester would have the right to receive a copy
of the records in the digital format. Likewise, a requester would
also have the right to request a paper copy of the records
maintained in the database. It is not, however, within the
discretion of the clerk of the court to only offer the option of
receiving paper copies of the records if the records already exist
in digital format; the choice of the format lies with the
requester.
Subdivision A 8 of § 17.1-275, relating to fees collected
by clerks of circuit courts for various services, indicates that a
clerk shall charges a fee of 50 cents per page [f]or making out
a copy of any paper or record to go out of the office. However,
this provision has little relevance to electronic or digital
records that may be requested from the clerk. A digital database is
not identified by the number of pages it contains; instead, a
digital database is a set of data that may be copied and
transferred from one computer to a computer disk or other storage
medium. In providing digital records, a clerk would be required to
comply with subsection G of § 2.2-3704, which requires that
records in an electronic database shall be made available to a
requester at a reasonable cost, not to exceed the actual cost in
accordance with subsection F. Subsection F of § 2.2-3704
allows a public body to recoup its actual costs incurred in
accessing, duplicating, supplying, or searching for the requested
records. Therefore, if you request a digital copy of records
maintained in a digital database, the clerk of the court may charge
you for the time it takes to access and copy the nonexempt portions
of the database that you requested, and for any other incidental,
actual costs, such as the cost of the computer disk onto which the
records are copied.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1 See Virginia
Freedom of Information Advisory Opinion 11 (2002).
2 1981-82 Op.
Atty. Gen. Va. 60. A number of other opinions, while not
specifically addressing the issue, are based upon the assumption
that court records are open to public inspection pursuant to FOIA.
See, e.g., 2000 Op. Atty. Gen. Va. 54,
1987 Op. Atty. Va. 255, 1984-85 Op. Atty.
Gen. Va. 428, 1982-1983 Op. Atty. Gen.
723, and 1982-83 Op. Atty. Gen. Va.
709.
3 See also 2002 Op. Atty. Gen. Va.
02-095, holding that all court records, whether in digital or paper
format, are subject to disclosure under FOIA unless sealed by a
court or otherwise exempt from disclosure by law.
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