-----------------------------------------------------------------

CRIMINAL PROCEDURE DL-77

1996 Op. Va. Att'y Gen. DL-77, Nov. 11, 1996

-----------------------------------------------------------------

CRIMINAL PROCEDURE: BAIL AND RECOGNIZANCES.

ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

PRISONS AND OTHER METHODS OF CORRECTION: LOCAL CORRECTIONAL FACILITIES - DUTIES OF SHERIFFS.

COSTS, FEES, SALARIES AND ALLOWANCES: SALARIES AND EXPENSES OF OFFICE - SHERIFFS AND SERGEANTS.

Records identifying accused charged with criminal offense maintained in sheriff's office are official records, subject to disclosure under Act, that sheriff must make available to magistrate who requests them. No statutory authority for Compensation Board to fund specific positions to assist in compiling identifying information for use by magistrates. Magistrates, in considering release or detainment of accused pending judicial proceedings, require information to comply with federal and state law.

The Honorable Gary W. Waters
Sheriff for the City of Portsmouth

November 11, 1996

You ask several questions relating to information contained in documents maintained by a sheriff's office that is requested by magistrates for their use in the conduct of bail release hearings.

You relate that magistrates frequently request from a sheriff copies of commitment papers, continuance cards and other dispositional information ("identifying information") for the purpose of conducting detention hearings and making determinations regarding release of persons on bail. The sheriff obtains identifying information at the time an individual arrested on criminal charges is taken into custody pending disposition of the charges. You also advise that magistrates request identifying information twenty-four hours a day, seven days a week, in considering the admission to bail of an accused pursuant to section 19.2-120 of the Code of Virginia, and that the sheriff does not have sufficient personnel to provide the requested identifying information on such a frequent basis.¹

You first ask whether a sheriff, upon request, is required to provide a magistrate with identifying information to be used by the magistrate in making determinations regarding bail.

Although it has been a common practice in the Commonwealth for a sheriff, upon request, to provide identifying information to a magistrate, I am aware of no statutory requirement that a sheriff, upon request, provide such identifying information to a magistrate. The office of the sheriff, however, generally is responsible for maintaining such identifying information.² A prior opinion of the Attorney General comments that under the provisions of The Virginia Freedom of Information Act,³ "records which are kept by the Sheriff's department in the transaction of public business would constitute official records, which are subject to disclosure unless specifically exempted by statute."⁴ Another prior opinion concludes that "the jail register or list of those incarcerated is subject to disclosure under sections 2.1-342(a) and 2.1-342(b)(1) of the Act."⁵ Consequently, since the records to which you refer are maintained by the sheriff and are subject to disclosure pursuant to section 2.1-342(A) and (B)(1) of the Act, the sheriff must make such records available to a magistrate who requests them.⁶

You next ask whether, if such a duty is imposed on a sheriff, the Compensation Board is required to fund positions to provide such assistance.

I am unaware of any statutory duty placed on a sheriff to provide identifying information to magistrates, and, therefore, it is not necessary to respond to this inquiry.⁷

You also ask whether magistrates considering release or detention pending judicial proceedings of an accused require such identifying information to be in compliance with applicable federal and state law.⁸

A prior opinion of the Attorney General notes that " Section 19.2-123 provides the basic authority for a magistrate to determine whether a person accused of a crime should be detained or released."⁹ In determining whether to release an accused, the magistrate shall consider the accused's family ties, employment, financial resources, the length of his residence in the community, his record of convictions and other criteria relevant to assurance of a court appearance.¹⁰ A 1980 opinion concludes that "these factors necessarily require identifying information."¹¹ Furthermore, that opinion considers the use of identifying information in considering release of an accused of such importance that "when a person refuses to supply information identifying himself probable cause arises that such person will not appear for trial, and a magistrate may refuse to release him on bond or upon his promise to appear."¹² Consequently, I am of the opinion that magistrates do require such identifying information to comply with federal and state law.

Your final question is whether magistrates may obtain identifying information from a police department or their own criminal information system. You have provided no facts upon which an opinion may be rendered pursuant to section 2.1-118.¹³ Virginia Attorneys General historically have declined to render official opinions when the request involves a question of fact rather than one of law.¹⁴ Therefore, consistent with this long-standing policy, I must respectfully decline to respond to this final question.

____________

Footnotes:

1. Section 19.2-120 provides:

"An accused, or juvenile taken into custody pursuant to section 16.1-246 who is held in custody pending trial or hearing for an offense, civil or criminal contempt, or otherwise shall be admitted to bail by a judicial officer as defined in section 19.2-119, unless there is probable cause to believe that:

"1. He will not appear for trial or hearing or at such other time and place as may be directed, or

"2. His liberty will constitute an unreasonable danger to himself or the public.

***

"The judicial officer shall inform the accused or juvenile of his right to appeal from the order denying bail or fixing terms of bond or recognizance consistent with section 19.2-124."

"Judicial officer" as defined in section 19.2-119 means "any magistrate within his jurisdiction."

2. See section 53.1-116(A) (requiring jailer to keep (1) record describing each person committed to jail, terms of confinement, what offense was committed, and date of confinement; and (2) prisoner records); section 53.1-122 (requiring each sheriff and jail superintendent to keep daily record showing total number of prisoners confined in local jail, number of prisoners admitted to and released from jail, and time of such admittance and release); section 53.1-123 (requiring sheriff to maintain certain records concerning each person committed to, and prison population confined in, his jail, and to furnish such information and reports to Department of Corrections as may be required).

3. Sections 2.1-340 to 2.1-346.1.

4. 1976-1977 Op. Va. Att'y Gen. 250, 252.

5. 1983-1984 Op. Va. Att'y Gen. 446, 447. In 1988, section 2.1-342(a) and (b)(1) was redesignated as section 2.1-342(A) and (B)(1). See 1988 Va. Acts: Ch. 39, at 38, 38-39; Ch. 411, at 507, 507-08; Ch. 891, at 1874, 1881; Ch. 902, at 2039, 2039-40.

6. In addition to the identifying information being subject to the Act, I note that a sheriff is a law-enforcement officer. See section 9-169(9); see also 1990 Op. Va. Att'y Gen. 98, 99. A magistrate is a judicial officer. See section 19.2-119. Both offices operate within the criminal justice system of the Commonwealth. Consequently, given the obligations placed on magistrates by section 19.2-120, it is not advisable that a magistrate be required to make a request for the disclosure of identifying information under the Act.

7. I am also unaware of any statutory provision expressly requiring the Compensation Board to fund specific positions in a sheriff's office to provide assistance in compiling such identifying information requested by magistrates.

8. Federal law provides that "[u]pon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be_

"(1) released on personal recognizance or upon execution of an unsecured appearance bond, under subsection (b) of this section;

"(2) released on a condition or combination of conditions under subsection (c) of this section;

"(3) temporarily detained to permit revocation of conditional release, deportation, or exclusion under subsection (d) of this section; or

"(4) detained under subsection (e) of this section." 18 U.S.C.A. section 3142(a) (West Supp. 1996).

Applicable Virginia law provides: "If any judicial officer has brought before him any person held in custody and charged with an offense, other than an offense punishable by death, or a juvenile taken into custody pursuant to section 16.1-246, the judicial officer shall consider the release pending trial or hearing of the accused on his recognizance." Section 19.2-123(A).

9. 1981-1982 Op. Va. Att'y Gen. 238, 238; see also 1979- 1980 Op. Va. Att'y Gen. 233, 233 (section 19.2-123 authorizes release of accused on unsecured bond or promise to appear).

10. Section 19.2-121.

11. 1979-1980 Op. Va. Att'y Gen., supra, at 233.

12. Id. at 234.

13. I note that a computerized criminal justice information system is maintained by the State Police pursuant to Chapter 2 of Title 52, sections 52-12 to 52-15, entitled "Basic State Police Communication System." See 1991 Op. Va. Att'y Gen. 130, 133 (through computer terminals connected to Virginia Criminal Information Network, law-enforcement agencies and other authorized users may gain access to information stored in Department of Motor Vehicles records, Virginia criminal history record information, data banks of federal National Crime Information Center, and various other data banks.)

14. See 1991 Op. Va. Att'y Gen. 122, 124, and opinions cited therein.