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 Times-

Dispatch, 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.”


     1
      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.

                                  2
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.




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     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.




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        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


                                  6
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.


                                     8
     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



                                 9
tapes.   Accordingly, we will affirm the issuance of the writ of

mandamus by the circuit court.

                                                         Affirmed.




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