Note: This page covers information specific to Virginia. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide.
You have a right to inspect and copy most records and documents filed in Virginia state courts. Va. Code § 17.1-208 provides that, with certain exceptions, any records or papers of any circuit court that are maintained by the clerk of the circuit court “shall be open to inspection by any person.” The Supreme Court of Virginia has interpreted this provision to create “a statutory presumption of openness to the public.” Perreault v. The Free Lance Star, 666 S.E.2d 352, 358 (2008). However, your right of access is not absolute, and a court may seal records under certain circumstances.
If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). Refer to the Virginia judiciary's website to find the locations, phone numbers, and websites for the state's courts. Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.
As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings, among other items found in a case file. Virginia courts have also ruled that unsealed mental health evaluations admitted into evidence at a hearing, Lotz v. Commonwealth, 672 S.E.2d 833, 837 (2009), and unsealed petitions for approval of settlements in wrongful death suits, Perreult, 666 S.E.2d at 359, are subject to disclosure, notwithstanding other statutes providing for confidentiality. However, you will not be able to access other documents associated with a case, such as materials uncovered through discovery but not filed with the court, see Shenandoah Publ'g House, Inc. v. Fanning, 368 S.E.2d 253, 257 (1988), trial exhibits that were not admitted into evidence, and notes written by the judge or other court personnel.
Additionally, Virgina law does exclude certain categories of court records from being made available. One major exclusion is criminal records that may interfere with an ongoing investigation, compromise the privacy of a juvenile, or reveal the identity of a witness that has been promised anonymity. See Va. Code § 2.2-3706. The identity of victims of sexual assault may also not be disclosed in most circumstances. See Va. Code § 19.2-11.2.
Beyond that, a court may seal a record or records in a criminal case if it determines that disclosure would threaten the defendant's right to a fair trial. To overcome the presumption of public access, the party requesting the seal “bears the burden of establishing an interest so compelling that it cannot be protected reasonably by some measure other than” sealing the documents. Lotz, 672 S.E.2d at 837 (internal quotation omitted). In a civil case, a court may seal documents if it determines that one or both of the parties have an interest in keeping the documents confidential and that interest outweighs the presumptive right of the public in accessing the documents. The interest must be specific; the risk of damage to professional reputation, emotional damage, or financial harm, in the abstract is not sufficient to seal a record. Shiembob v. Shiembob, 685 S.E.2d 192, 197 (2009).
A court must issue an order to seal documents. If you are denied access to court records, ask the clerk for the order sealing the documents. If such an order exists, you may consider moving to intervene in the case to challenge the court's decision. The Virginia Supreme Court has issued conflicting decisions on whether a writ of mandamus – an order by a higher court commanding a lower court to perform some mandatory duty – is an appropriate remedy for challenging the sealing of a document. See Smith v. Richmond Newspapers, Inc., 540 S.E.2d 878 (2001); Hertz v. Times-World Corp., 528 S.E.2d 458 (2000). If you wish to challenge an order sealing court records, you should get legal assistance to determine how best to proceed.
