When a Virginia sheriff hires a private collection attorney to chase down unpaid jail keep fees, what prisoner information can the sheriff legally hand over, and what can the attorney legally do?

Plain-English summary

Virginia sheriffs can charge prisoners up to $3 per day for what's called "jail keep fees" (the cost of housing them). When prisoners can't pay on release, they get a payment plan. When they don't pay the plan either, Va. Code § 53.1-127.5 lets the sheriff hire a private attorney or collection agency to chase the debt down.

Sheriff Ken Stolle of Virginia Beach asked Attorney General Herring two related questions. First, what prisoner information can the sheriff actually hand over to the collection attorney? Prisoner files are confidential. Section 53.1-127.5 expressly authorizes releasing the prisoner's Social Security number for collection purposes, but says nothing about other information.

Herring concluded that the sheriff has discretion to release additional information, subject to two limits: the release can't be barred by state or federal law (so no medical records, criminal history record information, victim/witness information under § 19.2-11.2, or confidential tax documents), and the information must be reasonably related to the collection effort. The sheriff has to make that fact-specific judgment. As Herring's footnote example put it, a debtor's last known address is reasonable for collections even though no statute explicitly authorizes its release.

Second, what can the collection attorney actually do in court? Herring confirmed that a private attorney can appear in court on behalf of the sheriff to get a money judgment for the unpaid fees, and to get a court order suspending the former prisoner's driver's license. But only the sheriff (not the attorney) can send the actual electronic notification to DMV that triggers the suspension, or the electronic release once the debt is paid. The statute reserves that step for the sheriff or jail superintendent personally, and Herring applied the principle that listing one party in a statute excludes others ("expressio unius est exclusio alterius").

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Virginia's regime for driver's license suspension as a collection mechanism has been the subject of significant reform legislation; verify the current statutes before relying on the procedures described here.

Common questions

Can a sheriff just hand over the entire prisoner file to a collection attorney?

No. The sheriff has discretion, but the discretion is bounded. Medical records, criminal history record information, victim and witness information protected under § 19.2-11.2, and tax documents are categorically off-limits. Other information must be "reasonably related" to collection.

Why does the Social Security number get special mention?

Because SSNs are otherwise protected under Virginia's Protection of Social Security Numbers Act. The General Assembly expressly authorized the release in the collections context so it would be clear the privacy law doesn't block it.

Can the collection attorney sue former prisoners directly?

Yes. The attorney is acting on behalf of the sheriff and can appear in court to seek a judgment for unpaid jail keep fees and to seek an order suspending the driver's license.

Why can't the attorney also send the DMV notification?

Section 46.2-320.2 says only the sheriff or jail superintendent enters into the agreement with DMV that transmits electronic license-suspension messages. Herring read the statute as reserving that function to the sheriff personally, applying the canon that mentioning a specific actor excludes others.

What happens if the attorney's collection effort succeeds and the debt is paid?

Section 46.2-320.2 requires the sheriff to send the electronic release of suspension on the same business day the individual pays in full or enters a satisfactory payment agreement. Again, the sheriff (not the attorney) must trigger the release.

Background and statutory framework

Virginia's jail keep fee scheme lives in Title 53.1 of the Code:

• § 53.1-127.3 caps fees at $3 per day and requires a deferred or installment payment agreement if the prisoner can't pay on release.
• § 53.1-127.4 lets the sheriff seek a court judgment for unpaid fees and a license suspension order.
• § 53.1-127.5 authorizes the sheriff to hire a private collection attorney or agency and expressly requires release of the prisoner's SSN as part of the contract.
• § 46.2-320.2 establishes the electronic DMV communication system for transmitting suspension and release orders.

The Board of Corrections has issued some guidance via 6 Va. Admin. Code §§ 15-40-90 and 15-40-410 (inmate records and medical records, both confidential), but had not issued specific guidance on what additional prisoner information could be released to collection attorneys.

Herring's analysis drew on two related principles. The Dillon Rule limits sheriffs to powers expressly granted, fairly implied, or essential and indispensable. The "necessary implication" path is what supports releasing additional information: if the General Assembly authorized hiring a collector, it implicitly authorized providing the information the collector reasonably needs to do the job. The "reasonable selection of method" rule (from Commonwealth v. Cnty. Bd., 1977) lets the sheriff exercise discretion within that framework.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. §§ 2.2-3815 to 2.2-3816 (Protection of Social Security Numbers Act)
• Va. Code Ann. § 19.2-11.2 (victim/witness information confidentiality)
• Va. Code Ann. § 19.2-389 (criminal history record information)
• Va. Code Ann. § 46.2-320.2 (DMV electronic license suspension)
• Va. Code Ann. §§ 53.1-127.3 to 53.1-127.5 (jail keep fees, payment plans, collection)
• Va. Code Ann. § 53.1-133.03 (inmate medical records)
• Va. Code Ann. § 54.1-3903 (practice of law)
• Va. Code Ann. § 58.1-3 (confidential tax documents)
• 6 Va. Admin. Code §§ 15-40-90, 15-40-410 (inmate records and medical records)
• Commonwealth v. Cnty. Bd., 217 Va. 558 (1977)
• GEICO v. Hall, 260 Va. 349 (2000)
• Turner v. Wexler, 244 Va. 124 (1992)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/14-082_Stolle.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
July 8, 2015
804-786-2071

The Honorable Ken Stolle
Sheriff, City of Virginia Beach
Post Office Box 6098
Virginia Beach, Virginia 23456-9073

Dear Sheriff Stolle:

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 ask whether a sheriff is limited in the types of prisoner information he may release to a private attorney hired to collect costs associated with a prisoner's keep (commonly known as "jail keep fees" or "daily jail keep fees").

You also ask whether such a private attorney may carry out the particular collection procedures described in § 53.1-127.4 (seeking judgment for unpaid jail keep fees) and § 46.2-320.2 (communications with Department of Motor Vehicles ("DMV") concerning license suspension for unpaid jail keep fees).

Applicable Law and Discussion

The Code of Virginia provides that a sheriff may charge prisoners daily jail keep fees, so long as the amount is reasonable and does not exceed $3 per day. If a prisoner is unable to pay the fees upon release, the sheriff must provide him with a deferred or installment payment agreement to allow him more time to pay. Should payment not be made under the terms of the agreement, § 53.1-127.5 authorizes the sheriff to pursue collection through an attorney or other collection agent.

You first ask whether a sheriff is limited in the types of prisoner information he may release to a collection attorney under § 53.1-127.5. A prisoner's file may contain various types of personal information, and the contents of the file are deemed confidential unless otherwise provided by law. Section 53.1-127.5 does not specify what types of personal information may be released for collection purposes, except that a sheriff "shall" release a prisoner's social security number as part of any collections contract. This statutory provision clarifies that a prisoner's social security number, which is protected information, must be released to facilitate the collection process. However, by authorizing the sheriff to enter into a collections contract, the statute also necessarily implies that he may release other types of information. To date, the Board of Corrections has issued no guidelines regarding what additional types of information a sheriff may release to a collection attorney.

Given this context, it is my opinion that a sheriff has discretion to determine what types of information he will release to a collection attorney, but he must, in all cases, be guided by the following considerations. First, a sheriff may not release information if the release is prohibited by state or federal law. For example, the release of medical records, criminal history record information, victim/witness information under § 19.2-11.2, or confidential tax documents is generally prohibited under state law. Second, a sheriff must ensure that any information released is reasonably related to the collection effort. Determining what is reasonably related to collection under § 53.1-127.5 is a fact-specific inquiry within the sound discretion of the sheriff.

You next ask whether an attorney may execute the collection procedures described in § 53.1-127.4 and § 46.2-320.2. Section 53.1-127.4 explicitly authorizes a sheriff to seek judgment against an individual for unpaid jail keep fees, as well as a court order suspending his driver's license for nonpayment. To effectuate court orders of suspension, a sheriff must enter into an agreement with the DMV Commissioner to transmit license suspension orders to DMV via electronic communication. In the event a former prisoner pays the delinquency in full, or enters into a satisfactory payment agreement, § 46.2-320.2 requires the sheriff to send subsequent electronic notification to DMV to release the suspension.

Under Virginia law, it is clear that a private attorney who is under contract to collect may appear in court on behalf of a sheriff to seek judgment against a former prisoner for nonpayment, as well as a court order to suspend his license. However, a private attorney may not send electronic notices of license suspension, or releases of suspension, to DMV. The plain language of both § 53.1-127.4 and § 46.2-320.2 indicates that only a sheriff or jail superintendent may perform these functions. Had the General Assembly intended to permit private attorneys to do so, it could have so provided by statute. It did not do so. Accordingly, while a private attorney may obtain a judgment and a court order suspending the license of a former prisoner for nonpayment of inmate keep fees, he may not transmit the electronic communications to DMV that are described in § 46.2-320.2.

Conclusion

Accordingly, it is my opinion that a sheriff has discretion to determine what types of prisoner information he will release to a collection attorney under § 53.1-127.5, but in all cases the release must not be otherwise prohibited by state or federal law and must be reasonably related to the collection effort.

It is further my opinion that a collection attorney may appear in court on behalf of a sheriff to seek judgment against a former prisoner for nonpayment of jail keep fees, in addition to a court order suspending the former prisoner's license. However, only a sheriff is authorized to transmit electronic communications to the DMV to effectuate license suspension or to release an existing suspension.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General