ANALYSIS OF JUNE 29, 2017 SUPREME COURT OPINION
(Posted June 29, 2017) The Supreme Court of Virginia today decides an appeal that open-government advocates have been following carefully. In The Daily Press v. Office of the Executive Secretary, the justices interpret who is the custodian of electronically stored court records.
The Daily Press is the dominant newspaper on the Virginia Peninsula. A reporter there made a FOIA request to the Executive Secretary of the Supreme Court for a database of records related to a series of stories he was writing about race and the criminal-justice system. The reporter knew that the OES stores records for the various circuit courts, and it was presumably easier to make one FOIA request than one to each of the 120 circuit-court clerks in Virginia. More important, it would be vastly easier to search a sortable database for the entire Commonwealth, rather than a patchwork of individual courts’ records.
The Executive Secretary balked, claiming that by law, the individual clerks were the custodians of the records. The reporter and the paper sued the Executive Secretary and joined 68 circuit-court clerks who had not consented to the release of their records.
The circuit court ruled in favor of OES, and today the justices unanimously affirm. The dispositive issue in the case is just who really is the custodian of the records.
Justice McCullough’s opinion for the court notes that while FOIA permits citizens to demand access from the custodians of public records, the Act doesn’t define custodian. But Title 17.1, which relates to courts of record, contains a provision expressly providing that the clerks “shall have custody of and shall keep all court records …” That’s a pretty solid indication that the legislature intended that the clerks will be the custodians.
But isn’t it possible for there to be two custodians? After all, the records exist (in digital form) at Ninth and Franklin, not just in individual clerk’s offices. The Supreme Court concludes today that the express legislative statement quoted above evinces an intention that the clerks are the sole custodians. Additional language in the same statute bolsters this conclusion, since it provides that the clerk remains the custodian even if the records are stored elsewhere.
Today’s opinion notes that the clerks had asserted that FOIA didn’t apply to them at all. In a footnote, the court observes that it isn’t necessary to decide that question in order to resolve this appeal, so the justices defer it unto another day.
While I’m emphatically in favor of open-government laws, I concur with the court’s conclusion. The justices don’t have the luxury of rewriting FOIA, and the legislative setup seems clear to me: the clerks are the custodians.
Today’s decision isn’t a permanently closed door for the reporter. He can still file individual FOIA requests to the clerks, who may try to resist them, subject to a court challenge. The real loss for the reporter is that even full sets of records won’t constitute a unified searchable database. It’s a mountain of work to evaluate all those thousands of individual records and compile them into something he can explain to his readers. It’s conceivable that the paper might persuade a legislator to introduce a bill to amend FOIA and require OES to provide the records. If so, you should expect the powerful clerks’ association to fight that one at the palisades.