Can a Virginia circuit court keep its 'order book' in an electronic case management system instead of paper?

Plain-English summary

The Clerk of the Prince William County Circuit Court asked whether her electronic case management system, which indexes every case and stores copies of every indexed order, satisfied the statutory requirement to keep an "order book." The AG: yes, with the right archival standards.

The order book requirement. Va. Code § 17.1-123(A) commands that "[a]ll orders that make up each day's proceedings of every circuit court shall be recorded by the clerk in a book known as the order book." Section 17.1-124 sets the contents, including all proceedings, orders, judgments, decrees, and trust-related actions. The statute allows the clerk to divide the order book into a civil order book and a criminal order book.

The electronic-format authorization. Section 17.1-124 says the clerk "shall ensure that these order books have been microfilmed or converted to or created in an electronic format." The microfilm path requires state microfilm standards. The electronic path requires state electronic records guidelines under Va. Code § 42.1-82 (which directs the Library of Virginia to set those standards).

The complementary statute. Section 17.1-240 reinforces the same conclusion: "A procedural microphotographic process, digital reproduction, or any other micrographic process which stores images of documents in reduced size or in electronic format, may be used to accomplish the recording of writings otherwise required by any provision of law to be spread in a book or retained in the circuit court clerk's office, including, but not limited to, the civil and criminal order books .... Any such micrographic, microphotographic or electronic recording process shall meet archival standards as recommended by The Library of Virginia."

The two statutes read together leave no doubt: electronic order books are allowed, provided the technical conditions are met.

The interpretive rule. Courts give statutes their plain meaning unless that produces an absurd result. They construe statutes as a whole, give effect to every word, and read related statutes together. Both § 17.1-124 (mandating electronic or microfilm conversion) and § 17.1-240 (authorizing micrographic and electronic recording) point the same way.

Practical conditions. A clerk wanting to move from paper to electronic must:

1. Use an electronic recording process meeting Library of Virginia archival standards.
2. Follow Virginia's electronic records guidelines under § 42.1-82.
3. Capture the same contents the order book required: all proceedings, orders, judgments, decrees, trust-related actions, and (if the order book is split) appropriate civil/criminal allocation.
4. Maintain the system's integrity over time (long-term preservation, format migration).

When those boxes are checked, the electronic order book is the legal equivalent of the paper one.

Currency note

This opinion was issued in 2014. 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.

The Library of Virginia's archival standards and the state's electronic records guidelines have been updated multiple times since 2014. Clerks should verify the current published standards and confirm their case management systems' compliance.

Common questions

Does this apply to all circuit courts in Virginia?
Yes. Section 17.1-124's order book requirement, and its electronic-format authorization, apply uniformly to circuit courts.

Do we still need paper at all?
No, not under § 17.1-124. The clerk chooses among paper, microfilm, or electronic format (or some combination). The Library of Virginia's standards and the state's records-management policies may impose practical constraints on certain hybrid setups.

What is the Library of Virginia's role?
Section 42.1-82 designates the Library of Virginia as the agency setting state electronic records standards and archival recommendations. The Library publishes guidelines for retention, format, indexing, and migration of electronic records.

What happens when a system needs to be upgraded?
The clerk has a continuing duty to maintain the records' integrity. Migrating to a new electronic case management system is allowed but must preserve the records and remain compliant with archival standards.

Are the electronic orders self-authenticating?
The electronic record carries the same legal force as the paper order book entry, when the recording process complies with the statutory requirements. Specific evidentiary questions (use in litigation, cross-jurisdictional reliance) are governed by other statutes and rules.

What about civil vs. criminal order books?
Section 17.1-124 lets the clerk, with the approval of the chief judge, divide the order book into civil and criminal sections. An electronic case management system can satisfy this if it can produce the equivalent of separate civil and criminal sections (or all proceedings in a unified searchable format that meets the same disclosure needs).

What if our system stores order images but not full case proceedings?
The system has to provide the contents of an order book. Mere image storage of finalized orders, without comprehensive recording of all proceedings, may not be enough. The clerk must verify all order-book content categories are covered.

Are there security or access constraints?
Yes. Electronic case management systems must also comply with the Virginia FOIA, sealed-records statutes, juvenile-records confidentiality rules, and similar protections. The order book itself is generally a public record; certain orders or matters may be subject to confidentiality rules independent of the order book question.

Background and statutory framework

• Va. Code § 17.1-123(A): requirement to keep an order book of each day's proceedings.
• Va. Code § 17.1-124: contents of order book; authorization for microfilm or electronic format with appropriate standards.
• Va. Code § 17.1-240: authorization for micrographic, microphotographic, or electronic recording of writings otherwise required to be spread in a book or retained by the clerk.
• Va. Code § 42.1-82: Library of Virginia authority over electronic records guidelines.

The interpretive moves:

• Plain meaning of both statutes contemplates electronic order books.
• Read together, the two statutes establish a coherent framework.
• Conditions: archival standards and electronic records guidelines must be met.

Citations

• Va. Code § 17.1-123
• Va. Code § 17.1-124
• Va. Code § 17.1-240
• Va. Code § 42.1-82
• Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 546 S.E.2d 696 (2001)
• Signal Corp. v. Keane Fed. Sys., 265 Va. 38, 574 S.E.2d 253 (2003)
• Virginia Elec. & Power Co. v. Citizens for Safe Power, 222 Va. 866, 284 S.E.2d 613 (1981)
• Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957)
• Colbert v. Commonwealth, 47 Va. App. 390, 624 S.E.2d 108 (2006)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/13-091_McQuigg.pdf

Original opinion text

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

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

January 10, 2014

The Honorable Michele B. McQuigg
Clerk of the Circuit Court
Prince William County
9311 Lee Avenue
Manassas, Virginia 20110

Dear Ms. McQuigg:

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 whether an electronic case management system, which indexes all cases in the circuit court and maintains copies of the indexed orders for all cases, fulfills the requirements for an order book as described in § 17.1-124 of the Code of Virginia.

Response

It is my opinion that an electronic case management system that provides the contents of an order book as prescribed in § 17.1-124, that is created using an electronic recording process compliant with the archival standards as recommended by the Library of Virginia, and that follows state electronic records guidelines as provided in § 42.1-82,[1] fulfills the requirement of an order book as described in § 17.1-124.

Applicable Law and Discussion

The General Assembly prescribed in § 17.1-123(A) that "[a]ll orders that make up each day's proceedings of every circuit court shall be recorded by the clerk in a book known as the order book." The General Assembly further prescribed the contents of an order book in § 17.1-124, which provides in relevant part:

Except as otherwise provided herein, each circuit court clerk shall keep order books recording all proceedings, orders and judgments of the court in all matters, all decrees, and decretal orders of such court and all matters pertaining to trusts, the appointment and qualification of trustees, committees, administrators, executors, conservators and guardians shall be recorded, except when the same are appointed by the clerk of court, in which event the order appointing such administrators or executors, shall be made and entered in the clerk's order book. In any circuit court, the clerk may, with the approval of the chief judge of the court, by order entered of record, divide the order book into two sections, to be known as the civil order book and the criminal order book. All proceedings, orders and judgments of the court in all matters at civil law shall be recorded in the civil order book, and all proceedings, orders and judgments of the court in all matters at criminal law shall be recorded in the criminal order book. In any proceeding brought for the condemnation of property, all proceedings, orders, judgments and decrees of the court shall be recorded in the civil order book of the court....

The clerk shall ensure that these order books have been microfilmed or converted to or created in an electronic format. Such microfilm and microphotographic processes and equipment shall meet state microfilm standards, and such electronic format shall follow state electronic records guidelines, pursuant to § 42.1-82.[2]

Also relevant to your inquiry is § 17.1-240, which relates to using an electronic process for recording purposes. Section 17.1-240 provides, in relevant part, as follows:

A procedural microphotographic process, digital reproduction, or any other micrographic process which stores images of documents in reduced size or in electronic format, may be used to accomplish the recording of writings otherwise required by any provision of law to be spread in a book or retained in the circuit court clerk's office, including, but not limited to, the civil and criminal order books .... Any such micrographic, microphotographic or electronic recording process shall meet archival standards as recommended by The Library of Virginia.[3]

In construing a statute, the plain meaning of the language determines the legislative intent unless a literal construction would lead to a manifest absurdity.[4] Statutes must be construed to give meaning to all of the words enacted by the General Assembly, and a court is "not free to add language, nor to ignore language, contained in statutes."[5] Additionally, "a statute is not to be construed by singling out a particular phrase," but must be construed as a whole.[6] Related statutes must be considered together in construing their various material provisions.[7]

Section 17.1-124 expressly requires a circuit court clerk to "ensure" that an order book has been "microfilmed or converted to or created in an electronic format." If a circuit court clerk does not microfilm an order book, a circuit court clerk either must create the order book in an electronic format or must convert the order book to such a format. While "convert" means to change from one form to another,[8] "create" means to bring into existence.[9] Pursuant to § 17.1-124, an order book may be created in electronic format so long as the electronic format follows the state electronic records guidelines as provided in § 42.1-82.

Section 17.1-124, construed in conjunction with § 17.1-240, confirms that an order book may be in electronic format. Section 17.1-240 expressly permits "a digital reproduction, or any other micrographic process which stores ... documents ... in electronic format" to accomplish the recording of writings "to be spread in a book" or "retained in the circuit court clerk's office." Section 17.1-240 specifies that a recording of writings to be spread in a book or retained in the circuit court clerk's office include the civil and criminal order books. Section 17.1-124 provides that an order book may be divided into two sections: the civil order book and the criminal order book. Pursuant to § 17.1-240, documents in electronic format may constitute the requisite recording of writings in an order book as long as the electronic recording process meets the archival standards as recommended by the Library of Virginia.

Conclusion

Accordingly, it is my opinion that an electronic case management system that provides the contents of an order book as prescribed in § 17.1-124, that is created using an electronic recording process compliant with the archival standards as recommended by the Library of Virginia, and that follows state electronic records guidelines as provided in § 42.1-82, fulfills the requirement of an order book as described in § 17.1-124.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] Va. Code Ann. § 42.1-82 (2013).

[2] Va. Code Ann. § 17.1-124 (2010) (emphasis added).

[3] Section 17.1-240 (2010) (emphasis added).

[4] Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 99-100, 546 S.E.2d 696, 702 (2001).

[5] Signal Corp. v. Keane Fed. Sys., 265 Va. 38, 46, 574 S.E.2d 253, 257 (2003).

[6] Virginia Elec. & Power Co. v. Citizens for Safe Power, 222 Va. 866, 869, 284 S.E.2d 613, 615 (1981).

[7] Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7 (1957); see Colbert v. Commonwealth, 47 Va. App. 390, 395, 624 S.E.2d 108, 110-11 (2006).

[8] The American Heritage Dictionary 320 (2d ed. 1985).

[9] Id. at 338.