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The Daily Press, LLC v. Office of Executive Secretary of Supreme Court of Virginia

Supreme Court of Virginia

June 29, 2017



          PRESENT: Mims, McClanahan, Powell, Kelsey, and McCullough, JJ., and Russell and Millette, S. JJ.



         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.


         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 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.

         This ...

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