Is the Virginia term jury list (the pool of potential jurors for a term of circuit court) open to the public, and can lawyers copy it?

Plain-English summary

Virginia uses three kinds of jury lists in its circuit courts. The master jury list is the broad pool from which prospective jurors are drawn. The term jury list is the subset assembled for a particular term of court. The panel jury list is the smaller group called for a specific trial.

Fredericksburg Circuit Court Clerk Jeff Small asked the Attorney General whether the term jury list is open to public review, and whether lawyers can copy it.

Attorney General Herring concluded:

1. Term jury lists are not public records under FOIA. The Virginia Supreme Court held in Archer v. Mayes (1973) that jury lists fall outside the meaning of "official records" under FOIA.

2. Only counsel of record in cases that will be tried during the term may inspect the term jury list. Pro se litigants in those cases have the same right.

3. Inspection does not include copying. Section 8.01-351 says the list is available "for inspection by counsel," and the absence of any reference to copying (compare FOIA, which says public records "shall be open to inspection and copying") means the General Assembly didn't intend to allow copying. Under the canon expressio unius est exclusio alterius, mentioning one thing excludes the other.

4. Copying is permitted only by leave of court upon a showing of good cause, in keeping with the policy from Archer that "[e]xposure of the list to the public could lead to tampering with and harassment of potential jurors."

The Archer good-cause standard had been applied in Prieto v. Commonwealth (2012) to expired master jury lists, and Herring extended the same logic to term jury lists.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Virginia Freedom of Information Act has been amended multiple times in the years since. Verify current statutes and Supreme Court of Virginia rules before relying on any specific procedure mentioned here.

Common questions

Can I see the names of people on the jury pool if I'm just curious?

No. Term jury lists are not public records, so a member of the public has no right to inspect them.

What if I'm an attorney representing a defendant going to trial that term?

Then you have the right to inspect the list in the clerk's office. Your inspection right doesn't automatically include a right to make a copy.

How do I get permission to copy it?

You'd have to ask the court for leave to copy and show good cause. The Archer decision frames the standard around protecting jurors from tampering and harassment.

What about a journalist investigating jury selection issues?

The opinion didn't directly address journalist requests, but it makes clear that public access is denied. A journalist would face the same need to seek court permission, likely with a higher good-cause hurdle given the privacy concerns.

Does the same restriction apply to master jury lists and panel lists?

Master lists are the subject of Archer and Prieto and are subject to the good-cause standard for release. Panel jury lists are addressed in the Circuit Court Clerk's Manual; this opinion doesn't change that guidance.

Background and statutory framework

The Virginia Freedom of Information Act (Va. Code § 2.2-3704) generally requires public records to be open for inspection and copying by Virginia citizens. But the Virginia Supreme Court held in Archer v. Mayes (1973) that jury lists fall outside FOIA's scope.

Section 8.01-351 governs term jury lists. It requires the clerk to prepare a list of potential jurors for the upcoming term and provides that the list "shall be available in the clerk's office for inspection by counsel in any case to be tried by a jury during the term." That's it. The statute says nothing about copying or public access.

The case law that governs jury list disclosure starts with Archer v. Mayes (1973) and was reaffirmed in Prieto v. Commonwealth (2012). The policy concern is consistent: tampering, harassment, and privacy. Even expired jury lists raise privacy concerns sufficient to warrant a good-cause requirement.

Herring also referenced Va. Code § 17.1-208, which lets the clerk restrict the use of the clerk's office for record-copying that "interfere[s] with the business of the office or with its reasonable use by the general public." That provides an additional handle for clerk's office management of any copying.

A 1997 AG opinion (1997 Op. Va. Att'y Gen. 27) had earlier reached a parallel conclusion: a circuit clerk cannot release master jury list info or jury questionnaire info to DMV or law enforcement without a court finding of good cause.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 2.2-3704 (FOIA inspection and copying)
• Va. Code Ann. §§ 8.01-343 to 8.01-363 (jury selection)
• Va. Code Ann. § 8.01-351 (term jury list)
• Va. Code Ann. § 17.1-208 (clerk's authority to limit copying)
• Archer v. Mayes, 213 Va. 633 (1973)
• Norfolk S. Ry. Co. v. Bowles, 261 Va. 21 (2001)
• Prieto v. Commonwealth, 283 Va. 149 (2012)
• Fisher v. Tails, Inc., 289 Va. 69 (2015)
• Smith Mtn. Lake Yacht Club, Inc. v. Ramaker, 261 Va. 240 (2001)
• 1997 Op. Va. Att'y Gen. 27

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/15-023_Small_Issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

June 3, 2016

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071

The Honorable Jeff Small
Clerk, City of Fredericksburg Circuit Court
701 Princess Anne Street, Suite 100
Fredericksburg, Virginia 22401

Dear Mr. Small:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a "term jury list," or list of potential jurors for a term of court as described in § 8.01-351 of the Code of Virginia, may be made available for public review, and whether the list may be copied.

Applicable Law and Discussion

The Virginia Freedom of Information Act ("FOIA") provides that public records generally be made available to citizens of the Commonwealth for inspection and copying.[1] However, jury lists are excluded from the scope of FOIA.[2]

Three types of jury lists are used by clerks for trials in Virginia's circuit courts: master jury lists, term jury lists, and panel jury lists.[3] Each list is prepared at a separate stage in the jury selection process.

With respect to term jury lists, which are the focus of your inquiry, § 8.01-351 provides that a clerk shall prepare a list of potential jurors for civil and criminal cases pending in an upcoming term of court. It states that the list "shall be available in the clerk's office for inspection by counsel in any case to be tried by a jury during the term."[4] There is no other statute either authorizing or requiring disclosure of this list. Therefore, the list may be made available for viewing only by counsel in jury cases held during the term. Any litigant who is preceding pro se in a jury case enjoys this same right, and any reference in this opinion to "counsel" shall also include pro se litigants.

The other question posed by your inquiry is whether counsel of record may copy a term jury list in addition to inspecting it. Section 8.01-351 requires that term jury lists be available "for inspection by counsel."[5] It does not require the list to be available for copying by counsel. In contrast, FOIA requires that "public records shall be open to inspection and copying."[6] The statutory canon of expressio unius est exclusio alterius means that the express mention of one thing excludes all others.[7] The General Assembly could have provided a right to copy a jury list in § 8.01-351 as it did in FOIA. It chose not to do so. I must therefore conclude that the General Assembly, in enacting § 8.01-351, did not intend to give counsel the right to copy a term jury list.

In the case of Archer v. Mayes, the Supreme Court of Virginia articulated the policy considerations affecting disclosure of a master jury list, stating, "[e]xposure of the list to the public could lead to tampering with and harassment of potential jurors and seriously affect their impartiality and the proper administration of justice."[8] The Court further held that the "jury list be kept secret . . . unless good cause be shown."[9]

While Archer involved master jury lists, not the term jury lists which are the subject of your inquiry, its rationale, protecting the integrity of the jury system by judicial control of access to juror information, lends further support to the conclusion that § 8.01-351 authorizes only review of a term list by counsel, but not copying, unless a court finds good cause to permit copying.[10]

Conclusion

For the foregoing reasons, it is my opinion that only counsel of record has the right to view a term jury list. Copying of the list by counsel is permitted only by leave of court upon a showing of good cause.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] VA. CODE ANN. § 2.2-3704(A) (2014) (providing that "[e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records").

[2] See Archer v. Mayes, 213 Va. 633, 641 (1973) ("The jury list is not an 'official record' within the intent and meaning of the provisions of the Freedom of Information Act.").

[3] See VA. CODE ANN. §§ 8.01-343 to -363 (2015); Norfolk S. Ry. Co. v. Bowles, 261 Va. 21, 27-28 (2001); see also OFFICE OF THE EXEC. SEC'Y, VA. SUPREME COURT, CIRCUIT COURT CLERK'S MANUAL-CRIMINAL, at 4-82 to 4-90 (rev. July 2015); OFFICE OF THE EXEC. SEC'Y, VA. SUPREME COURT, CIRCUIT COURT CLERK'S MANUAL-CIVIL, at 3-18 to 3-29 (rev. July 2015).

[4] Section 8.01-351.

[5] Id. (emphasis added).

[6] VA. CODE ANN. § 2.2-3704(A) (2014) (emphasis added).

[7] Fisher v. Tails, Inc., 289 Va. 69, 75 (2015) (citing Smith Mtn. Lake Yacht Club, Inc. v. Ramaker, 261 Va. 240, 246 (2001)).

[8] Archer v. Mayes, 213 Va. 633, 641 (1973).

[9] Id. at 640-41; see also Prieto v. Commonwealth, 283 Va. 149, 184-85 (2012), cert. denied, 133 S. Ct. 244 (2012) (observing the "good cause" standard pertinent to the release of a master jury list and holding, in part, that a circuit court did not err in denying a criminal defendant access to certain expired master jury lists). The Prieto decision also states, at 185, "The disclosure of an expired jury list does not raise the same tampering or harassment concerns that the disclosure of a current jury list does, but it still raises privacy concerns. A jury list contains sensitive information that should be protected. We thus believe that a good-cause standard is appropriate for the release of both a current and expired jury list."

[10] Consistent with the Archer decision, a 1997 Opinion of this Office opined that a circuit clerk may not release information contained in a master jury list or jury commissioner's questionnaires regarding potential jurors to law enforcement or the Department of Motor Vehicles without the Circuit Court finding good cause to do so. 1997 Op. Va. Att'y Gen. 27. I note that the Circuit Court Clerk's Manual (the "Manual"), issued by the Office of the Executive Secretary of the Supreme Court of Virginia, discusses access to panel jury lists in civil and criminal jury trials. Because this opinion deals only with term jury lists, it does not affect the guidance provided by the Manual for panel jury lists. See OFFICE OF THE EXEC. SEC'Y, VA. SUPREME COURT, CIRCUIT COURT CLERK'S MANUAL-CRIMINAL, at 7-22 (rev. July 2015). In addition, I note that § 17.1-208 of the Code restricts the means of copying of records, stating, "No person shall be permitted to use the [Circuit Court] clerk's office for the purpose of making copies of records in such manner, or to such extent, as will, in the determination of the clerk, interfere with the business of the office or with its reasonable use by the general public."