University of Virginia Library

I have been asked for an opinion as to whether or not the minutes of meetings of the Board of
Visitors of the University are public documents. Since the minutes of the Board may be more accurately
defined as "records", I will use the latter term in the following discussion.

In Greenleaf on Evidence, the writer in discussing "Writings", "Documents" and "Records",
divides them into two classes - public and private, public writings being again subdivided into those
which are public in every sense and those which he terms quasi public records. Records which are
public in every sense consist of the acts of public functionaries in the legislative, judicial and
executive departments of the government, while quasi public records are those which partake both of a
public and private character and are treated as the one or the other according to the relation in
which the applicant for inspection stands to them. Thus the books of a corporation are public with
respect to its members but private with respect to strangers.

A public record has been defined as one required by law to be kept or necessary to be kept
in the discharge of a duty imposed by law or directed by law to serve as a memorial and evidence of
something written, said or done. 53 C.J. 604.

At common law a person may inspect public records in which he has an interest or make copies
or memoranda thereof where a necessity for such inspection is shown and the purpose does not seem to
be improper and where the disclosure would not be detrimental to the public interest; but the gratification
of mere curiosity or motives merely speculative, or the creation of scandal will not entitle a
person to inspection or to make copies or memoranda. It has also been held that the right of the public
generally to inspect public records must be based upon some statutory authority and that in the absence
of a statute the right to inspect public records is governed by the common law rule. The above is the
rule under the common law of England.

It has been held, however, that under the common law in this country every person is entitled
to free access and public inspection of public records without any showing of special interest and that
in the absence of a statute (limiting such right) public records are open to inspection by the public
and that all persons have a right to resort to public records irrespective of motive or interest or
even to satisfy idle curiosity, but that if such records are not strictly public records, although they
may relate to public business, only persons directly interested in such records should be permitted to
inspect them and then only when such inspection is not detrimental to the public welfare or interest.

It is clear from the foregoing statements that the whole question we are concerned with hinges
upon whether these records are really public records, quasi public records, or private records.

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So far as I have been able to discover the only section in our Code which deals with the
right to inspect records of any kind is Section 3388 which is applicable only to records of the
Clerks' Offices of our several courts of record.

I can find no case that has been decided on this subject in Virginia and I have found
only two cases reported which deal in any way with the right to inspect records of any kind -

(1) In Clay v. Ballard, 87 Va. 787, our Supreme Court held that mandamus will lie to
compel a registrar to allow any citizen to inspect and to make copies of the registration books
since they are of a public nature and every citizen has an interest in them.

(2) In Greaves, and others v. Terry, &c., 93 Va. 491, it was held that so much of the
record of proceedings of electoral boards as relates to the appointment and removal of judges and
commissioners of election and registrars or the ordering of a new registration, is a public record
open to inspection by any citizen or voter in the county where the record is kept. But so much of
said records as relate to the preparation and printing of the official ballots prescribed by law,
certification of the same, and their distribution to the judges of election is not a public record
that is open to the inspection of anyone other than the officers of the county to whom the duties of
preparing, printing, certifying and distributing ballots are confined by law.

To go into this question thoroughly will require many hours of careful study - many more
than have been at my disposal since the last meeting of this Board, and from the investigation which
I have already been able to make I am convinced that such a thorough study will result only in the
enumeration of a great number of different records which have been held by one court or another to
be public and therefore open to inspection, together with a similar list of those records which have
been held to be quasi public or private, and not subject to general inspection.

I seriously doubt whether the most thorough investigation will turn up any line of cases
or even any single case which will deal with the records of a corporation having the character of
The Rector and Visitors of the University of Virginia, which, as you know, under the provisions of
Section 806 of our Code has been held by our Supreme Court in Phillips v. the University, 97 Va.
472, to be a public corporation governed and controlled by the State and subject in all respects to
the control of the General Assembly.

It is my opinion that should this question be submitted to our Courts, and only by such a
course can anything more than a theoretical opinion be obtained, it would be held that the minutes
of these meetings, while not public records in the sense that any citizen might inspect them for
the gratification of mere curiosity, are in a sense quasi public records and may be inspected by
anyone having a legitimate interest therein where the necessity for such inspection is shown and the
purpose does not seem to be improper.

Section 811 of our Code in defining the duties of this Board contains the provision that
this Board may "in respect to the government and management of the University make such regulations
as they may deem expedient not being contrary to law".

There is certainly no provision of our organic law definitely declaring these records to be
public records and therefore if this Board should adopt a regulation to the effect that its minutes
were not public records, such a resolution would not be contrary to anything in our Code. Whether
it would be contrary to any rule of common law would, in my opinion, be the subject of serious controversy
upon the subject of whether we are to be governed by the common law of England or the
common law of this country, if in a case such as this we really have developed any common law rule.

My conclusion therefore is that until our Legislature passes an act clarifying the situation
or until the question is decided by our Supreme Court of Appeals, any opinion that may be given
by counsel will be merely speculative and of little real value. I believe that it is within the
scope of your authority under Section 811 of our Code to adopt a regulation or rule declaring that
the minutes of your meetings are public records and may be inspected by anyone desiring to see them
and under proper supervision. Or, you may adopt a regulation declaring that your minutes are not
public records in the full sense of that term and by this regulation you may define the extent to
which access by the public may be had to the minutes and you may set up such rules as you may think
proper to safeguard such inspection. The wisdom or unwisdom of either of these courses is a matter
for determination by this Board and not one for expression of opinion by counsel.