Can a Virginia clerk of court install permanent courtroom recording systems and charge for copies of the recordings?

Plain-English summary

In 2010, Delegate Surovell had introduced legislation (HB 827) authorizing clerks of court to install permanently-on electronic recording systems in courtrooms and charge for copies of the recordings. He pointed to the U.S. District Court for the Eastern District of Virginia and the D.C. Superior Court, which had used digital recording for over a decade. The bill didn't pass. The delegate asked the AG whether clerks already had the authority without new legislation.

The AG said yes. Virginia clerks of court have broad discretion to carry out their duties so long as (1) the General Assembly hasn't forbidden the practice and (2) the practice doesn't conflict with the authority of other judicial officers. No Virginia statute forbids a clerk from recording proceedings or installing recording equipment. So clerks may do it in their discretion, provided they preserve any confidentiality required by statute or court order.

On fees, Code § 17.1-275(8) authorizes clerks to charge for duplicating an "electronic record." An electronic recording of a court proceeding qualifies. The fee may not exceed the actual cost of preparing the record. And clerks may not charge the Commonwealth unless specifically authorized by statute.

The opinion is short and narrow. It does not address whether a judge can prohibit recording in a specific proceeding, when court orders sealing parts of the record limit access, or how confidentiality required by the Code or by court orders interacts with public records requests. Those are case-by-case questions.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Court technology has evolved substantially since 2010. Many Virginia courts now operate with various combinations of digital recording, livestreaming, court reporters, and remote-access systems. Specific fees, confidentiality rules, and request procedures vary by court and by case type. The general principle that a clerk has discretion to install recording equipment is still useful, but the surrounding rules are very different than in 2010.

Common questions

Does the clerk need permission from the judge to record?
The opinion says clerks have discretion provided their practice does not "conflict with the higher authority of other judicial officers in specific situations." A judge presiding over a specific case can order the recording sealed, require redaction, or restrict access in that case. Practical implementation typically involves coordination with the chief judge of the court.

What about juvenile court proceedings or sealed family matters?
Confidentiality rules for J&DR cases (juvenile records, mental health hearings, certain custody proceedings) are statutory. The AG opinion says the clerk's authority is conditioned on maintaining statutorily required confidentiality. A recording system that operates in J&DR has to handle those access restrictions.

Can litigants get a copy of the recording?
Yes, for fee. Under § 17.1-275(8), the clerk may charge a fee to duplicate the electronic record, capped at the actual cost of preparing it.

Can the Commonwealth (prosecutors, court-appointed defenders billing the state) be charged for a copy?
No, not unless a specific statute authorizes it. The opinion states that clerks may not charge the Commonwealth without specific statutory authority.

Does this replace court reporters?
The opinion does not address replacement. The delegate's policy argument was that digital recording could reduce the need for court reporters and save money for both parties and the Commonwealth. The AG's narrow answer is just about authority and fees, not about whether a specific recording is good enough to serve as the official record for appeal purposes.

Background and statutory framework

Clerks of court are constitutional officers in Virginia with both statutorily defined and discretionary duties. The AG noted that any number of prior opinions of the office have concluded that clerks have broad discretion to carry out their duties, and to perform additional duties, so long as the General Assembly has not forbidden the practice and the task does not conflict with the higher authority of other judicial officers.

Fee structure: Code § 17.1-275(8) authorizes clerks to charge for duplicating an "electronic record." The fee cap is the clerk's actual cost of preparing the record. The opinion also states that clerks may not charge the Commonwealth for these services without specific statutory authority.

Citations

• Va. Code Ann. § 17.1-275(8) (2010)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-063-Surovell.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

August 2, 2010

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Scott A. Surovell
Member, House of Delegates
P.O. Box 289
Mount Vernon, Virginia 22121

Dear Delegate Surovell:

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

Issues Presented

You inquire whether a Clerk of Court may install recording systems into a Circuit Court, General District Court, and/or Juvenile and Domestic Relations Court and require such systems to be on at all times court is in session. You also ask whether the Clerk may charge a fee for access to such recordings provided that confidentiality is maintained for all proceedings as required by the Code of Virginia or orders of the Court.

Response

It is my opinion that a Clerk of Court may install recording systems into a Circuit Court, General District Court, and/or Juvenile and Domestic Relations Court and require such systems to be on at all times court is in session and, further, that the Clerk may charge a fee for access to such recordings provided that confidentiality is maintained for all proceedings as required by the Virginia Code or Court orders.

Background

You relate that during the 2010 legislative session, you introduced House Bill 827, a bill designed to authorize Clerks to install in courtrooms electronic recording systems that remain permanently on and to charge a fee for providing a copy of the recording. Referring to the fact that the U.S. District Court for the Eastern District of Virginia in Alexandria and the D.C. Superior Court have maintained a digital recording system for at least ten years, you suggest that such a system minimizes the need for court reporters, thereby saving clients and the Commonwealth money; protects the record and the openness and integrity of the proceedings; and improves the quality of jurisprudence in Virginia.

Applicable Law and Discussion

Any number of prior opinions of this office conclude that clerks of court have broad discretion to carry out their duties, and to perform additional duties, so long as (1) the General Assembly has not forbidden them from engaging in a particular practice, or (2) a particular task does not conflict with the higher authority of other judicial officers in specific situations. I know of no statute that would prohibit a clerk from recording proceedings or from installing equipment that would record proceedings. Therefore, clerks may, in their discretion, record court proceedings provided that the confidentiality of the recordings is maintained as required by the Virginia Code or Court orders.

Code § 17.1-275(8) authorizes a Clerk to charge a fee for duplication of an "electronic record." Electronic recordings of court proceedings would qualify as an electronic record. The fees may not exceed the actual cost of preparing the record. Furthermore, Clerks may not charge a fee to the Commonwealth unless specifically authorized by statute.

Conclusion

Accordingly, it is my opinion that that a Clerk of Court may install recording systems into a Circuit Court, General District Court, and/or Juvenile and Domestic Relations Court and require such systems to be on at all times court is in session and, further, that the Clerk may charge a fee for access to such recordings provided that confidentiality is maintained for all proceedings as required by the Code of Virginia or other orders of the Court.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General