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 valid: the clerk owns the records, the clerk controls access. Subsequent legislative changes expanded who could authorize access in specific contexts (the Supreme Court, court clerks providing online access to case management systems), but none of them gave local governing bodies the power to override the clerk's decisions about access.

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 that wanted to grant data access to its own staff or to a third-party vendor for some purpose cannot legally do so without the clerk's consent. The clerk's discretion is statutorily protected.

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.

Va. Code § 17.1-293 has been amended multiple times since 2013, with various changes to the kinds of records that can be remotely accessed, the data security requirements, and the procedures for subscribers. The general principle that the clerk controls access has remained intact.

Common questions

What is a case management system?
A clerk-administered software system that tracks all the cases, dockets, orders, and related materials for a court. The clerk uses it for daily case management, scheduling, document generation, and record keeping. The system is often stored on a private vendor's servers under contract with the clerk.

Why is the clerk the gatekeeper?
Because the Virginia Constitution makes the circuit court clerk a constitutional officer with custody of court records. The General Assembly has codified that custodial role in Title 17.1. The clerk has discretion over how to fulfill the custodial duty, including who gets access to electronic records.

What if the local government wants its IT staff to maintain the system?
That would require the clerk's authorization. The clerk could agree to it as a matter of administrative cooperation, but the clerk cannot be forced. In practice, clerks often partner with county/city IT for hosting or technical support, but the legal control stays with the clerk.

What about state agencies needing data?
State agencies generally need a basis under statute, court rule, or clerk consent. Some agencies (Department of Taxation for setoff debt collection, for example) have statutory access rights that operate independently of clerk consent.

Can the public get access?
The public has a general right to view court records, but online/remote access is a separate question controlled by the clerk under § 17.1-293. Many clerks provide online docket information; the specific data available varies by clerk.

What does "secure remote access" mean?
Authorized subscriber access to court records through a secured online portal. The clerk authorizes the subscribers and can revoke access for misuse. Section 17.1-293(H) prohibits subscribers from redistributing the data to third parties (with limited exceptions for vendor subscribers under specific conditions).

Can a judge order the clerk to grant access?
The 2002 AG opinion said no. A judge can order specific records to be released (a sealed record, a subpoena, etc.), but cannot order general access to the system itself.

What if the clerk's decision seems arbitrary?
The clerk's discretion is broad but not unlimited. A court could potentially review the decision under specific legal challenges (FOIA, constitutional, etc.), but the local governing body has no general supervisory authority.

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:

• Records belong to the clerk as constitutional officer; 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.").