Can a Virginia local government force the circuit court clerk to grant outside access to the clerk's case management system?

Plain-English summary

A 2002 AG opinion had concluded that even circuit court judges could not order a clerk to grant access to the clerk's automated case management system to people not employed by the clerk. The system, the prior opinion held, was the clerk's record under the clerk's custody, and access lay within the clerk's sound discretion.

Delegate Kilgore asked whether the rule still applied to local governing bodies after intervening statutory changes (the 2007 enactments at Va. Code § 17.1-293 and the 2013 amendments).

The AG said yes, the rule still applies.

The 2002 opinion's core analysis remains relevant: the system is a record of the clerk's office in the clerk's custody, and access lies within the clerk's sound discretion. Subsequent legislative changes expanded who could authorize access in specific contexts, but gave no such power to local governing bodies over the clerk's objection.

Section 17.1-293(F) clarified that "[n]othing in this section shall prohibit the Supreme Court or any other court clerk from providing online access to a case management system." That permits the clerk to provide online access; it does not require the clerk to do so or empower someone else to require it.

Section 17.1-293(H) further restricted what subscribers can do with secure remote access data: it cannot be sold, posted on other websites, or redistributed to third parties (with limited carve-outs). And critically, "the clerk, in his discretion, may deny secure remote access to ensure compliance with these provisions." The statute reinforces clerk discretion rather than displacing it.

So a local governing body cannot mandate access for people who are not employed by the clerk and lack the clerk's authorization.

Currency note

This opinion was issued in 2013. 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.

Check the current version of § 17.1-293 before relying on this 2013 opinion.

Common questions

What is a case management system?
The request described a system created by the clerk with appropriated funds and stored on a private vendor's servers under contract with the clerk. The AG treated it as a record of the clerk's office in the clerk's custody.

Why is the clerk the gatekeeper?
The AG relied on a 2002 opinion holding that the clerk's automated case management system, whether stored on or off premises, is a record in the clerk's custody and that access lies within the clerk's sound discretion.

What if the local government wants its IT staff to maintain the system?
If the IT staff are not employed by the clerk, the local governing body cannot mandate their access without the clerk's authorization. The opinion does not address a particular maintenance arrangement.

What about state agencies needing data?
This opinion answers only whether a local governing body can require access for people not employed by the clerk. It does not decide a state agency's access rights.

Can the public get access?
The opinion notes that § 17.1-293(F) permits the Supreme Court or a court clerk to provide online access to a case management system. It does not decide what public access a particular system must offer.

What does "secure remote access" mean?
Section 17.1-293(H) addresses data accessed remotely: it prohibits sale, posting, or redistribution to third parties, subject to an exception for products or services meeting stated safeguards. It says the clerk may deny secure remote access to ensure compliance.

Can a judge order the clerk to grant access?
The 2002 AG opinion addressed whether circuit court judges could order access for people not employed by the clerk. It concluded that access to the system lies within the clerk's sound discretion. This opinion does not address orders concerning particular records.

What if the clerk's decision seems arbitrary?
The AG does not analyze judicial review of a clerk's access decision. It concludes that a local governing body cannot mandate access over the clerk's objection.

Background and statutory framework

• Va. Code § 17.1-293: governs access to court records, including the case management system; codified 2007 and amended 2013.
• Va. Code § 17.1-293(F): permits online access by Supreme Court or court clerks.
• Va. Code § 17.1-293(H): restricts subscriber redistribution; reaffirms clerk discretion to deny access.
• 2002 Op. Va. Att'y Gen. 62: the foundational opinion establishing clerk control over case management system access.

The interpretive moves:

• The system is a record of the clerk's office in the clerk's custody; access lies within sound discretion.
• Statutory permissions for access add to, but do not override, clerk discretion.
• Section 17.1-293(H)'s "clerk, in his discretion, may deny" language reinforces the discretion.

Citations

• Va. Code § 17.1-293(F), (H)
• 2007 Va. Acts chs. 548, 626
• 2002 Op. Va. Att'y Gen. 62

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-047_Kilgore.pdf

Original opinion text

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

August 20, 2013

The Honorable Terry G. Kilgore
Member, House of Delegates
Post Office Box 669
Gate City, Virginia 24251

Dear Delegate Kilgore:

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 inquire as to whether a governing body can mandate access to an automated case management system[1] for people who are not approved by the clerk and who are not employed by the clerk.

Response

It is my opinion that a local governing body may not mandate that individuals not employed by the clerk be granted access to a case management system without the clerk's authorization.

Applicable Law and Discussion

Referencing a prior opinion of this Office,[2] you inquire whether a governing body may, without the consent of the clerk, grant access by persons not employed by the clerk to the clerk's automated case management system and other integral parts of the system such as the Commonwealth online court order system. The prior opinion, which specifically addressed whether circuit court judges could order the clerk to grant access to the case management system by individuals not employed by the clerk, concluded that "automated case management systems maintained by the clerk of a circuit court, whether the storage media is on or off premises, are records of the clerk's office under the custody of such clerk. Access to such a case management system lies within the sound discretion of the clerk."[3]

In the years since that opinion, there have been statutory changes that have expanded who may authorize access to automated case management systems.[4] Nothing in those changes, however, would authorize a local governing body to grant access to the automated case management system over the clerk's objection. Accordingly, consistent with the prior opinion, I conclude that a local governing body cannot grant access to persons not employed by the clerk to the clerk's automated case management system without the consent of the clerk.[5]

Conclusion

Accordingly, it is my opinion that a local governing body may not mandate that individuals not employed by the clerk be granted access to a case management system without the clerk's authorization.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

[1] For the purposes of your inquiry, you state that the "clerk's automated case management system" is a system created by the clerk with funds appropriated to the clerk and that the system is stored on the servers of the private vendor with whom the clerk has contracted.

[2] 2002 Op. Va. Att'y Gen. 62.

[3] Id. at 64.

[4] In 2007, the General Assembly enacted 2007 Va. Acts chs. 548 and 626, which were codified at Va. Code Ann. § 17.1-293 (Supp. 2013), and then amended that enactment in 2013. Section 17.1-293(F) provides that "[n]othing in this section shall prohibit the Supreme Court or any other court clerk from providing online access to a case management system that may include abstracts of case filings and proceedings in the courts of the Commonwealth."

[5] Section 17.1-293(H) ("Nothing in this section shall be construed to permit any data accessed by secure remote access to be sold or posted on any other website or in any way redistributed to any third party, and the clerk, in his discretion, may deny secure remote access to ensure compliance with these provisions. However, the data accessed by secure remote access may be included in products or services provided to a third party of the subscriber provided that (i) such data is not made available to the general public and (ii) the subscriber maintains administrative, technical, and security safeguards to protect the confidentiality, integrity, and limited availability of the data.").