Present: All the Justices 

YVONNE G. SMITH 

 OPINION BY 

v. Record No. 000337 JUSTICE LAWRENCE L. KOONTZ, JR. 

 January 12, 2001 

RICHMOND NEWSPAPERS, INC., ET AL. 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 In this appeal, we consider whether audio tape recordings 

of a felony criminal trial are open to inspection by the public 

under Code § 17.1-208 and, if so, whether mandamus is the proper 

remedy to compel the clerk of the trial court to allow such 

inspection. 

BACKGROUND 

 The facts have been stipulated. Yvonne G. Smith (the 

Clerk) is the Clerk of the Circuit Court of Henrico County. It 

is the practice of that court to record audio tapes of felony 

criminal trials when a court reporter is not present. These 

audio tapes are recorded on equipment kept in the courtrooms and 

operated by court personnel. When the trials are concluded, the 

audio tapes are kept in the Clerk’s office. Should a written 

transcript be required of a trial recorded on one of these audio 

tapes, a court reporting service will prepare the transcript. 

Otherwise, the only record of the trial are the audio tapes 

themselves. 
 On June 2, 1999, Thomas C. Campbell, a reporter for 

Richmond Newspapers, Inc., which publishes the Richmond TimesDispatch, asked the Clerk if he could listen to the audio tapes 

of a specific trial for which no written transcript had been 

prepared. The Clerk denied this request. 

 On June 3, 1999, Richmond Newspapers, Inc. and Campbell 

(the petitioners) petitioned the circuit court for a writ of 

mandamus directing the Clerk to allow them, or any person, to 

listen to the audio tapes.1 In addition to her answer to the 

petition for mandamus, the Clerk filed a demurrer to the 

petition, asserting that the audio tapes are not a record open 

to inspection pursuant to Code § 17.1-208. The Clerk further 

asserted that mandamus does not lie because the duty sought to 

be enforced is discretionary and that the petitioners do not 

have a clear right to the relief sought. Thereafter, the 

circuit court conducted a hearing on the pleadings, supporting 

briefs, and the stipulated facts. 

 By order dated November 19, 1999, the circuit court 

concluded that a “tape recording of [a] felony trial[] is a 

record of the trial and thus open for public inspection.” 

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In the petition for mandamus, the petitioners made 

reference to Code § 17-43, the predecessor statute to Code 

§ 17.1-208. Title 17 was superseded by Title 17.1 effective 

October 1, 1998 without material change concerning the issue 

presented by this appeal. Accordingly, we will address the 

current statute in this opinion. 

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Accordingly, the trial court awarded mandamus and directed that 

the Clerk “allow the petitioners, or any person, to listen to 

requested audio tapes of felony trials conducted in the Circuit 

Court of Henrico County that are maintained in her office.” We 

awarded the Clerk this appeal. 

DISCUSSION 

 In support of her position that audio tape recordings of 

felony criminal trials are not records of the circuit court 

within the purview of Code § 17.1-208, the Clerk places primary 

reliance upon our decision in Shenandoah Publishing v. Fanning, 

235 Va. 253, 368 S.E.2d 253 (1988). She asserts that Shenandoah 

Publishing stands for the proposition that the records which are 

required to be open for inspection pursuant to this statute are 

those “records as that term is defined in Rule 5:10,” which 

provides for the contents of the record on appeal from the trial 

court to this Court. Rule 5:10, however, was not discussed in 

the Shenandoah Publishing opinion, and the Court nowhere in that 

decision defined the trial court records that must be open for 

inspection by reference to the components of the appellate 

record listed in that rule. Nonetheless, the Clerk asserts that 

because audio tape recordings are not mentioned in Rule 5:10, 

such recordings are not included within the meaning of records 

of the circuit court under Code § 17.1-208. 

3
 The Clerk’s reliance upon Shenandoah Publishing is 

misplaced. There, in a medical malpractice case, we were 

concerned with public access, under the predecessor of Code 

§ 17.1-208, to certain data sealed by the trial court after the 

parties reached a compromise settlement. “To facilitate our 

analysis, we separate[d] the data sealed by the trial court into 

two classes[:]” pretrial documents and judicial records. 

Shenandoah Publishing, 235 Va. at 256-57, 368 S.E.2d at 254-55. 

The documents classified as judicial records were held to 

“include the pleadings and any exhibits or motions filed by the 

parties and all orders entered by the trial court in the 

judicial proceedings leading to the judgment under review.” Id.

at 257, 368 S.E.2d at 255. Pursuant to the “broad sweep” of the 

language contained in what is now Code § 17.1-208 and the 

generally accepted common-law rule of openness of judicial 

proceedings and judicial records, we concluded that the trial 

court erred in sealing these judicial records. Id. at 258-60, 

368 S.E.2d at 255-56. No audio tape recordings or transcripts 

of the proceedings were involved in Shenandoah Publishing. 

Moreover, nothing in that case even suggests that we intended 

our classification of the data involved in that case to be a 

comprehensive and exclusive definition of “records” for purposes 

of determining the application and scope of Code § 17.1-208. 

4
 Finally, the Clerk asserts that Code § 8.01-420.3 and Rule 

1:3 support her position. She argues that a transcript of the 

trial is the most apt analogue to the tape recording at issue 

here. Thus, because this statute is consistent with the 

provision of Rule 1:3 that trial transcripts may be made 

available to interested persons “upon terms and conditions to be 

fixed in each case by the judge,” trial transcripts, or audio 

tape recordings, are not “open to inspection” under Code § 17.1-

208. We disagree with this reasoning. Code § 8.01-420.3 and 

Rule 1:3 specifically address transcripts of the proceedings and 

the circumstances under which copies may be obtained. Audio 

tape recordings are not transcripts of the proceedings, and here 

we are concerned only with the inspection of these tapes and not 

a request to obtain copies of them. 

 While we disagree with the Clerk’s reasoning above, this 

does not resolve the question whether these audio tape 

recordings of felony criminal trials are “records” of the 

circuit court open to inspection as contemplated by the 

provisions of Code § 17.1-208, and we now turn to our analysis 

of that question. Although not cited by either party, we begin 

that analysis with the provisions of Code § 19.2-165, which are 

particularly relevant to the inquiry sub judice. This statute 

specifically directs that “[i]n all felony cases, the court or 

judge trying the case shall by order entered of record provide 

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for the recording verbatim of the evidence and incidents of 

trial either by a court reporter or by mechanical or electronic 

devices approved by the court.” (Emphasis added). This statute 

further provides that the expense of recording the trial shall 

be paid by the Commonwealth to the localities that maintain 

mechanical or electronic devices for this purpose, unless the 

defendant is convicted and, thus, required to bear that expense. 

Pursuant to this statute, no transcript is prepared unless the 

defendant appeals his conviction. In addition, the statute in 

broad terms directs the individual designated to record the 

trial to file the “original records” with the clerk of the 

circuit court “who shall preserve them in the public records of 

the court for not less than five years if an appeal was taken 

and a transcript was prepared, or ten years if no appeal was 

taken.” 

 In the instant case, the audio tapes are the only verbatim 

recording of the evidence and incidents of the felony criminal 

trial in question. There is no dispute that the audio tapes 

were produced by a mechanical or electronic device approved by 

the court and that court personnel designated to record the 

trial operated that device. Furthermore, there is no dispute 

that the audio tapes were properly filed with the Clerk who, 

pursuant to this statute, must preserve it in the public record 

of the circuit court for at least five years. Under such 

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circumstances, and in view of the undisputed tradition of 

openness to criminal proceedings in this Commonwealth, we are of 

opinion that when, as here, the audio tape recording of a felony 

criminal trial is the only record of that trial, it is a 

“record” of the court as contemplated by the provisions of Code 

§ 17.1-208 and, thus, open to inspection by any person. 

Accordingly, we hold that the circuit court properly so 

determined.2

 We turn now to the issue whether the mandamus was properly 

issued by the circuit court. We recognize that mandamus is an 

extraordinary remedy that lies only where there is a clear and 

unequivocal duty of a public official to perform the act in 

question. Hertz v. Times-World Corp., 259 Va. 599, 607, 528 

S.E.2d 458, 462 (2000); see also Early Used Cars, Inc. v. 

Province, 218 Va. 605, 609, 239 S.E.2d 98, 101 (1977). In 

support of her position that mandamus is not the proper remedy 

in this case, the Clerk reasserts that the petitioners do not 

have a clear right to be permitted inspection of the audio tape 

recordings. For the reasons previously stated herein there is 

no merit to this assertion. 

 2

However, to the extent that the phase “open to inspection” 

in the context of audio tapes needs any clarification, we hold 

that this phrase means that one inspects audio tapes by 

listening, and not merely by viewing. 

7
 The Clerk further reasserts that to the extent that she has 

a duty to permit inspection of the audio tape recordings 

pursuant to Code § 17.1-208, that duty is discretionary, not 

ministerial. This is so, she contends, because she “would be 

undertaking a judicial role were she to permit the tape 

recordings to be released, inasmuch as Rule 1:3 permits 

transcripts of proceedings to be released only pursuant to terms 

fixed by a judge.” We disagree. 

 The release of the audio tapes is not at issue in this 

case. The petitioners requested permission to listen to the 

tapes; they did not request copies or to remove the tapes from 

the clerk’s office. Similarly, the mandamus merely directed the 

Clerk to allow the petitioners, or any person, “to listen” to 

these tapes. 

 Finally, the Clerk makes the following assertion: 

 In addition, § 17.1-208 prohibits persons from 

using the clerk’s office as will interfere with the 

business of the office. The petitioners’ request 

would require [her] to make the discretionary decision 

whether permitting a person to listen to a tape 

recording of a trial would interfere with her office’s 

business. For example, if the petitioners intended to 

use their own tape recorder to listen to the tape, the 

noise and disturbance therefrom (unlike the situation 

where a document is being inspected) could result in 

such interference. And if petitioners intended to use 

a county tape recorder, that, too, could result in 

interference with the operations of the Clerk’s 

office. Either way, [she] would be obligated to make 

a discretionary decision as to whether the 

petitioners’ request would interfere with her office’s 

business. 

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 The pertinent language from Code § 17.1-208 states that: 

“[n]o person shall be permitted to use the clerk’s office for 

the purpose of making copies of records in such a manner, or to 

such extent, as will interfere with the business of the office 

or with its reasonable use by the general public.” As 

previously noted, we are not here concerned with a request to 

make copies. Moreover, while we agree that the Clerk certainly 

has the discretion to determine the manner in which a person may 

be permitted to listen to the audio tape recordings so that such 

does not interfere with the business of the office, that 

discretion simply does not extend to a complete denial of the 

right to listen to the tapes. And we are confident that the 

clerks of the circuit courts are entirely adept in making the 

necessary ministerial decisions to strike a reasonable balance 

between providing the public the right to listen to these audio 

tape recordings of felony criminal trials and avoiding any 

interference with the other business of their offices. 

CONCLUSION 

 For the reasons stated above, we hold that the circuit 

court properly concluded that the audio tape recordings were 

records of the circuit court and open to inspection pursuant to 

Code § 17.1-208 and that mandamus was the proper remedy to 

direct the Clerk to permit the petitioners to listen to these 

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tapes. Accordingly, we will affirm the issuance of the writ of 

mandamus by the circuit court. 

Affirmed. 

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