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

Millette, S.JJ.

THE DAILY PRESS, LLC, ET AL.

 OPINION BY

v. Record No. 160889 JUSTICE STEPHEN R. McCULLOUGH

 June 29, 2017 

OFFICE OF THE EXECUTIVE SECRETARY 

OF THE SUPREME COURT OF VIRGINIA, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

David F. Pugh, Judge 

 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. 

BACKGROUND

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 
2

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 
3

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. 
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This appeal followed. 

ANALYSIS

At the outset, it is worth emphasizing that this Court’s role is limited. Public policy 

questions concerning where to draw the line with respect to VFOIA fall within the purview of 

the General Assembly. In a regime of separated powers that assigns to the legislature the 

responsibility for charting public policy, our function is limited to adjudicating a question of law: 

does VFOIA compel the Executive Secretary to answer the request from The Daily Press or does 

the law instead require The Daily Press to make its VFOIA request to individual Clerks of 

Court? 

Because the issue before us is a matter of statutory interpretation, we review the trial 

court’s decision de novo. Fitzgerald v. Loudoun Cnty. Sheriff’s Office, 289 Va. 499, 504, 771 

S.E.2d 858, 860 (2015). 

I. CLERKS OF COURT ARE THE EXPRESSLY DESIGNATED CUSTODIANS OF COURT 

RECORDS. 

VFOIA requires “public records” to be “open to inspection and copying by any citizens 

of the Commonwealth during the regular office hours of the custodian of such records.” Code 

§ 2.2-3704(A). It is undisputed that the Executive Secretary is a “public body” as that term is 

defined by VFOIA. A Virginia citizen making a VFOIA request must make that request to the 

custodian of the record. Id. VFOIA, however, does not define the term “custodian.” 

The Executive Secretary and the court clerks point to Code § 17.1-242 to argue that the 

clerks of court are the designated custodians of court records. That statute provides as follows: 

The circuit court clerks shall have custody of and shall keep all 

court records, including books, evidence, records, maps, and 

papers, deposited in their offices or at such location otherwise 

designated by the clerk, as well as records stored in electronic 
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format whether the storage media for such electronic records are 

on premises or elsewhere. 

The Executive Secretary and the clerks rely on this statute to argue that the clerks of court are the 

statutorily designated custodians of what are indisputably court records, and, therefore, The 

Daily Press must make its records request to the clerks of court.

While in the construction of statutes the constant endeavor of the 

courts is to ascertain and give effect to the intention of the 

legislature, that intention must be gathered from the words used, 

unless a literal construction would involve a manifest absurdity. 

Where the legislature has used words of a plain and definite import 

the courts cannot put upon them a construction which amounts to 

holding the legislature did not mean what it has actually expressed. 

Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins 

v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). We conclude that Code § 17.1-242 plainly 

establishes the clerks as the custodians of the court records. In addition, this statute plainly 

provides that the clerks’ custody extends to court records that are “stored in electronic format” 

and that they remain custodians even if the electronic records are stored off premises, in this 

instance at the Executive Secretary’s offices. Because the clerks of court are the expressly 

designated custodians of court records, The Daily Press must address its VFOIA request to them.

This straightforward reading of Code § 17.1-242 is bolstered by a 2002 official opinion 

of the Attorney General. Although the question addressed in the opinion was different, the 

reasoning is germane to the question before us. Relying on Code § 17.1-242, the Attorney 

General explained that

the circuit court clerk is responsible for the integrity of all records 

maintained by the clerk’s office. That responsibility is not shared 

with any other court official, but rests exclusively with the elected 

clerk of the circuit court . . . . 

Accordingly, I must conclude that automated case management 

systems maintained by the clerk of a circuit court, whether the 
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storage media is on or off premises, are records of the clerk’s 

office under the custody of such clerk. Access to such a case 

management system lies within the sound discretion of the clerk.

2002 Op. Atty. Gen. Va. No. 02-026 (April 04, 2002). The Attorney General reiterated this 

conclusion in 2013. 2013 Op. Atty. Gen. Va. No. 13-047 (August 20, 2013). The General 

Assembly has taken no corrective action to dispel the Attorney General’s conclusion that the 

clerk of court is the official who has custody of court records.

This designation of court clerks as the custodians of court records accords with 

longstanding historical practice. Clerks of court have borne the responsibility of maintaining 

court records for public access since colonial times. See 1 William Waller Hening, Statutes at 

Large 303-04 (1823) (citing the Act X of November 1645 under King Charles I, designating 

“clerkes [sic] of the courts . . . [to] keep records of the proceedings of all actions and causes 

aforesaid”); see also Hugh F. Rankin, The General Court of Colonial Virginia, Colonial 

Williamsburg Foundation Library Research Report Series – 0088, Colonial Williamsburg 

Foundation Library (1958) (“The Clerk of the General Court was responsible for keeping the 

records of the court . . . the publication of court orders, issuing subpoenas, and the preparation of 

the court docket.”). 

The VFOIA directs persons who wish to obtain public records to direct the request at the 

custodian of the records. Code § 17.1-242 designates the clerks of court as the custodians of 

court records. Both CCMS and OCIS are indisputably “court records.” Accordingly, a request 

for court records must be made to the custodian of those records, the clerks of court.

The Daily Press makes several arguments to resist this conclusion. First, it argues that 

Code § 17.1-242 is irrelevant and that we should instead look exclusively to VFOIA as the sole 

text to determine who is the custodian of a record. Code § 17.1-242 is not part of VFOIA. The 
7

term “custodian” is not defined in VFOIA, so, The Daily Press argues, we should give that word 

its ordinary meaning, namely, someone who has possession of something. Since the Executive 

Secretary is a “public body” in possession of a “public record,” it is the “custodian” of the record 

and, therefore, the database must be disclosed. 

We conclude that this is the wrong approach. VFOIA states that public records must be 

open to copying and inspection from the custodian, “[e]xcept as otherwise specifically provided 

by law.” Code § 2.2-3704. We agree that in the ordinary situation, a “custodian” for VFOIA 

purposes is the public body in possession of such a record. It is certainly possible that there 

might be more than one custodian of a public record. With respect to court records, however, the 

General Assembly has “otherwise specifically provided by law” by designating court clerks as 

the persons who have custody of court records. Therefore, a VFOIA request for court records 

must be made to them.1

This conclusion draws further support from the functions the General Assembly has 

ascribed to court clerks and to the Executive Secretary. A wide range of statutes call for clerks 

of court to maintain court records for, among other things, public access. See Code § 17.1-206 

et seq. The Executive Secretary, on the other hand, is tasked with a support role for “the circuit 

court system, which includes the operation and maintenance of a case management system.” 

Code § 17.1-502(A). The General Assembly’s designation of circuit court clerks as the 

custodians of court records in Code § 17.1-242 is part of an overall statutory scheme that 

delineates for circuit court clerks the role of maintaining court records and providing the public 

 1 The clerks intimate that VFOIA may not apply at all to them, at least with certain kinds 

of public court records. We do not address this question, because it is not before us. What is 

before us is a VFOIA request addressed to the Executive Secretary and whether the Executive 

Secretary must answer such a request or whether that request should be directed elsewhere.
8

with access to court records. The General Assembly has allocated a support role for the 

Executive Secretary. The fact that the Executive Secretary supplies the software and server

hardware for CCMS and OCIS does not render the Executive Secretary the custodian of the court 

records any more than if the Executive Secretary had supplied the clerks with the ink, paper, and 

file cabinets to generate and store these records.

Amicus for The Daily Press argues that Code § 17.1-242 is limited to records that are 

“deposited” in the clerks’ offices. The plain language of Code § 17.1-242, however, does not 

lend itself to this construction. It designates clerks as the custodians of “all court records,” which 

certainly includes those records that are “deposited in their offices,” but the statute further 

designates the clerks as custodians of all “records stored in electronic format whether the storage 

media for such electronic records are on premises or elsewhere.” Id.

The Attorney General also points to Code § 2.2-3704(J), which specifies that 

[i]n the event a public body has transferred possession of public 

records to any entity, including but not limited to any other public 

body, for storage, maintenance, or archiving, the public body 

initiating the transfer of such records shall remain the custodian of 

such records for purposes of responding to requests for public 

records made pursuant to this chapter and shall be responsible for 

retrieving and supplying such public records to the requester.

Disputing the applicability of this provision, The Daily Press argues that no records were ever 

“transferred” to the Executive Secretary. We disagree. The evidence establishes an agreement 

between the clerks of court and the Executive Secretary to transfer custody of computerized 

court records from the moment of their creation to the Executive Secretary. Here, the record is 

the data. The clerks of court enter case information and case management data into a computer 

system. In so doing the clerks are either creating or updating an electronic record. Once they 

have keyed in the information, the clerks then transfer the data via electronic impulse to the 
9

Executive Secretary servers, where the data is stored. To “transfer” simply means “to carry or 

take from one person or place to another” or “to cause to pass from one person or thing to 

another: transport.” Webster’s Third New International Dictionary 2426-27 (1993). Code 

§ 2.2-3704(J) establishes that when clerks create or update a record and then send or transfer that 

record to the Executive Secretary, that transfer does not turn the Executive Secretary into the 

custodian of the record. 

Amicus for The Daily Press seeks to draw a distinction between a “stream of data” and a 

“record” for purposes of VFOIA. The term “public records” is very broadly defined as 

all writings and recordings that consist of letters, words or 

numbers, or their equivalent, 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. 

Code § 2.2-3701. With computer database systems, to which data is constantly added, and 

which data are transmitted and stored electronically, the electronically stored data is the public 

record. The data constitute letters, words, and numbers, that are “prepared” by the clerks “in the 

transaction of public business.” Any distinction between “records” and “data” in this context 

would be entirely artificial.

The Daily Press also raises the prospect that governmental actors could play a confusing 

shell game, shifting records from one governmental actor to another and thereby thwarting public 

access. We see little danger of such a practice here. The Code expressly designates the clerks as 

custodians of court records. Clerks have served as the custodians of court records for centuries. 

The public knows or can easily find out where to ask for court records. 
10

The Daily Press also attempts to draw a distinction between CCMS and OCIS. It stresses 

the fact that OCIS is an entirely different database that is created by the Executive Secretary

when it duplicates CCMS. First, like CCMS, OCIS is a “court record” brought into being by the 

consent of a clerk of court, to serve the needs of court clerks, and of which the clerks statutorily 

have custody under Code § 17.1-242. Second, Code § 2.2-3704(G) provides that “[t]he excision 

of exempt fields of information from a database or the conversion of data from one available 

format to another shall not be deemed the creation, preparation, or compilation of a new public 

record.” Therefore, when the Executive Secretary uses database replication software to create 

OCIS, which is a read-only copy of CCMS, it does not create a new record for purposes of 

FOIA.

 Finally, The Daily Press cites the provisions of Code § 2.2-3700, which call for the 

provisions of VFOIA to be “liberally construed to promote an increased awareness by all persons 

of governmental activities and afford every opportunity to citizens to witness the operations of 

government.” Code § 2.1-3700(B). The liberal construction of a statute is one thing. 

Substituting our judgment for what the General Assembly has expressed would be another. The 

General Assembly has expressly designated the clerks as the custodians of court records. The 

issue before us, moreover, is not whether records should be made public or shielded from public 

view. There is no question the public can gain access to a wide range of court records. The 

question is which governmental entity should respond to The Daily Press’ request under VFOIA 
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for public records. Here, court clerks are the expressly designated custodians of the public 

records sought by The Daily Press.2

CONCLUSION

For these reasons, the judgment below will be affirmed.3

Affirmed.

 2 We have considered United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136 

(1989), cited by The Daily Press, but consider it inapposite due to the differences in statutory 

language between the VFOIA and its federal counterpart.

3

 In light of our holding, The Daily Press’ request for attorney’s fees is moot.