When a federal agency like the Defense Counterintelligence and Security Agency requests records for a security clearance investigation, must Virginia juvenile courts hand over criminal history information, and does that include juvenile delinquency records?

Subject

Virginia's juvenile courts are required under 5 U.S.C. § 9101 to share criminal history record information with covered federal agencies under the terms set forth in the statute, but because juvenile delinquency records do not constitute "criminal history record information," they are not subject to required disclosure under 5 U.S.C. § 9101.

Plain-English summary

The federal Defense Counterintelligence and Security Agency (and similar federal agencies) sometimes ask Virginia's juvenile and domestic relations courts for records as part of background investigations for security clearances, sensitive national-security positions, and federal employment vetting. Delegate Cherry asked whether 5 U.S.C. § 9101 obligates Virginia juvenile courts to comply.

Yes, but only for adult criminal history record information. 5 U.S.C. § 9101 makes "criminal justice agencies" hand over "criminal history record information" to covered federal agencies, with the subject's written consent. State courts are explicitly within the definition of criminal justice agency, so Virginia juvenile courts qualify when they hold relevant adult CHRI.

But the AG also concluded that juvenile delinquency records are not "criminal history record information" within the meaning of § 9101. Juvenile delinquency proceedings are historically civil, not criminal (Gault (1967); Lewis v. Commonwealth (1973)). Federal law treats them separately (18 U.S.C. §§ 5031-5043, and § 5038 governs federal juvenile records). And in 5 U.S.C. § 9202, Congress incorporated § 9101's CHRI definition but then expressly added juvenile delinquency information to it, which (the AG reasoned) shows § 9101's definition does not, by itself, reach juvenile records. So Virginia juvenile delinquency records stay confidential under state law (§§ 16.1-303, 16.1-305) and outside the federal disclosure mandate.

What this means for you

For Virginia juvenile court clerks

When a covered federal agency requests adult criminal history records with the subject's written consent under 5 U.S.C. § 9101(c), produce them. The federal statute preempts contrary state law. But you do not have to produce juvenile delinquency records under § 9101. Those remain confidential under Virginia state law. If a federal agency asks for them, the request needs to be evaluated under Virginia's limited statutory exceptions (e.g., § 16.1-305, § 16.1-309.1), not under § 9101.

For security clearance applicants and their counsel

If you have an adult Virginia conviction, expect it to be disclosed to DCSA or similar federal agencies when you sign the standard background-check consent. Juvenile delinquency adjudications are not automatically forwarded by Virginia juvenile courts under § 9101. They may still be discoverable through Virginia's narrow statutory exceptions, but not through the federal mandate.

For federal investigators

5 U.S.C. § 9101 gets you adult criminal history record information from Virginia state courts on receipt of the subject's written consent. For juvenile delinquency information, you need to identify a specific Virginia-law exception to confidentiality (e.g., § 16.1-305 has narrow categories), or rely on subject-provided information.

For Virginia juvenile defense counsel

Your client's adult criminal history will travel under § 9101 with consent. Their juvenile record will not, by federal mandate. Counsel client carefully about what consent forms they sign and what records flow as a result.

Common questions

What is the Defense Counterintelligence and Security Agency?

DCSA is the federal agency under the Department of Defense responsible for background investigations and security clearance suitability determinations. The opinion treats it as a component of a "covered agency" (the Department of Defense) entitled to criminal history record information under the terms of 5 U.S.C. § 9101.

Why does § 9101 preempt state law?

5 U.S.C. § 9101(b)(4) says the statute "shall apply notwithstanding any other provision of law or regulation of any State or of any locality within a State, or any other law of the United States." It is a clear federal preemption clause for the records it covers.

Why aren't juvenile delinquency records "criminal history record information"?

The AG gave several reasons: (a) the federal government treats juvenile delinquency proceedings as distinct from criminal proceedings, with their own statutory scheme (18 U.S.C. §§ 5031-5043) including a separate provision for releasing the associated records; and (b) in 5 U.S.C. § 9202, Congress incorporated § 9101's CHRI definition but also added "information... relating to an act or alleged act of juvenile delinquency, that is analogous to criminal history record information," a separate inclusion that would be unnecessary if § 9101's CHRI already covered juvenile records.

What about 18 U.S.C. § 5038?

That statute addresses release of federal juvenile delinquency records. The Third Circuit in McDonnell v. United States (1993) held it "do[es] not fall within the scope of state juvenile records." So § 5038 does not apply to Virginia state-court juvenile records.

Can DCSA still get juvenile records through some Virginia exception?

Possibly. Virginia statutes have several limited exceptions to juvenile confidentiality, e.g., §§ 16.1-305, 16.1-309.1. Whether a specific federal request fits one of those is a fact-bound question outside the scope of this opinion.

How does the requesting agency comply with § 9101's consent requirement?

The opinion notes that a requesting agency may not obtain the information unless it has received written consent from the individual under investigation for the release of such information, and the information may be used only for the purposes the statute allows.

Background and statutory framework

The framework on adult CHRI:

• 5 U.S.C. § 9101: imposes the federal mandate. Criminal justice agencies must make CHRI available to covered agencies for security clearance and sensitive-position determinations, with written subject consent.
• § 9101(b)(4): preempts state law to the contrary.
• § 9101(a)(2): defines CHRI as "information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, sentencing, correction supervision, and release."
• § 9101(a)(1): includes state courts in "criminal justice agency."

The framework on juvenile records:

• 18 U.S.C. §§ 5031-5043: federal juvenile delinquency statutory scheme; § 5038 governs release of federal juvenile records.
• 5 U.S.C. § 9202: in restricting when civil-service applicants can be asked for criminal history record information, it incorporates § 9101's CHRI definition and separately adds juvenile delinquency information, which the opinion reads as confirming § 9101 alone does not cover juvenile records.
• Va. Code §§ 16.1-303, 16.1-305, 16.1-309.1: Virginia juvenile record confidentiality.
• § 19.2-389(A)(5): Virginia statute permitting CHRI sharing with federal agencies authorized to conduct background investigations.

The Supreme Court of Virginia and U.S. Supreme Court have long distinguished juvenile from criminal proceedings (Lewis v. Commonwealth; Gault).

Citations

• Va. Code Ann. § 2.2-505 (advisory opinion authority)
• Va. Code Ann. § 16.1-228 (juvenile court definition)
• Va. Code Ann. § 16.1-303 (records confidentiality)
• Va. Code Ann. § 16.1-305 (exceptions to confidentiality)
• Va. Code Ann. § 16.1-309.1 (additional confidentiality provisions)
• Va. Code Ann. § 16.1-69.30 (juvenile courts in unified system)
• Va. Code Ann. § 19.2-389(A)(5) (CHRI sharing with federal agencies)
• 5 U.S.C. § 9101 (federal CHRI mandate)
• 5 U.S.C. § 9201, § 9202 (civil-service applicant rules)
• 18 U.S.C. §§ 5031-5043 (federal juvenile delinquency)
• 18 U.S.C. § 5038 (federal juvenile records release)
• United States v. California, 2007 WL 3341670 (E.D. Cal. 2007)
• McKenna v. I.N.S., 217 F.3d 855 (Fed. Cir. 1999)
• Application of Gault, 387 U.S. 1 (1967)
• Lewis v. Commonwealth, 214 Va. 150 (1973)
• McDonnell v. United States, 4 F.3d 1227 (3d Cir. 1993)
• Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303 (2006)
• King v. Burwell, 576 U.S. 473 (2015)
• TRW Inc. v. Andrews, 534 U.S. 19 (2001)
• Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)
• DOJ Office of Legal Counsel, 20 U.S. Op. O.L.C. 299 (1996)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2025/24-041-Cherry-issued.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
Jason S. Miyares
Attorney General
November 12, 2025

The Honorable Mike Cherry
Member, Virginia House of Delegates
Post Office Box 1146
Colonial Heights, Virginia 23834

Dear Delegate Cherry:

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 ask whether juvenile courts in Virginia are required under 5 U.S.C. § 9101 to share criminal history record information with federal agencies such as the Defense Counterintelligence and Security Agency (DCSA).

Response

It is my opinion that Virginia's juvenile courts are required under 5 U.S.C. § 9101 to share criminal history record information with covered federal agencies, including DCSA, under the terms set forth in the statute. It further is my opinion that, because juvenile delinquency records do not constitute "criminal history record information," they are not subject to required disclosure under 5 U.S.C. § 9101.

Applicable Law and Discussion

The federal government routinely conducts criminal background checks to further its "legitimate interest in determining the suitability of individuals seeking access to classified information and employment in sensitive national security positions." To facilitate this process, Congress enacted 5 U.S.C. § 9101, which "requires states to provide criminal history records to the federal government when personnel are being investigated for national security purposes." The statute more specifically provides that, upon request of a "covered [federal] agency," a "criminal justice agenc[y]" shall make available all criminal history record information regarding individuals under investigation by that covered agency, in accordance with Federal Investigative Standards jointly promulgated by the Suitability Executive Agent and Security Executive Agent.

A requesting agency may not obtain the information "unless it has received written consent from the individual under investigation for the release of such information[,]" and the information received "shall be disclosed or used only for the purposes set forth in [the statute] or for national security or criminal justice purposes authorized by law . . . ." The provisions of 5 U.S.C. § 9101 "shall apply notwithstanding any other provision of law or regulation of any State or of any locality within a State, or any other law of the United States."

State courts are expressly included in the statute's definition of "criminal justice agencies." Because juvenile courts in Virginia are "state courts," they constitute "criminal justice agencies" subject to the requirements of 5 U.S.C. § 9101. As a component of a covered agency, namely, the Department of Defense, the DCSA is entitled to such criminal history record information under the terms of the statute. Applying the plain terms of the statute and its applicable definitions, I must conclude that juvenile courts are required to comply with 5 U.S.C. § 9101 by making criminal history record information available to the DCSA upon proper request.

It is important to note, however, that 5 U.S.C. § 9101 applies only to that which constitutes "criminal history record information" under the statute. "Criminal history record information" does not encompass juvenile delinquency records. As defined in 5 U.S.C. § 9101, "criminal history record information" is "information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, sentencing, correction supervision, and release." As revealed in other federal statutes, this definition does not extend to juvenile delinquency records.

I first note that the federal government generally recognizes juvenile delinquency proceedings to be distinct from criminal proceedings and not a component of "criminal history record information." Indeed, federal juvenile delinquency proceedings are covered by a distinct statutory scheme, which includes its own provision dedicated to the release of associated records.

Another statute, 5 U.S.C. § 9202, sheds additional light on the distinction. That statute generally prohibits agencies from requesting that civil service applicants "disclose criminal history record information regarding the applicant before the appointing authority extends a conditional offer to the applicant." Significantly, in defining "criminal history record information" for purposes of 5 U.S.C. § 9202, Congress expressly incorporated 5 U.S.C. § 9101's definition, but did not limit the term to that definition. Rather, Congress provided that it also includes "information collected by a criminal justice agency, relating to an act or alleged act of juvenile delinquency, that is analogous to criminal history record information."

"It is 'a cardinal principle of statutory construction' that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant'"; and courts "normally presume that . . . 'Congress acts intentionally and purposely in the disparate inclusion or exclusion'" of terms. It thus follows that "criminal history record information" as used in 5 U.S.C. § 9101 does not itself encompass, but necessarily excludes, juvenile record information a court possesses that relates "to an act or alleged act of juvenile delinquency."

I therefore conclude that, pursuant to 5 U.S.C. § 9101, a juvenile court in Virginia must release to DCSA or other authorized federal agencies the relevant criminal history record information the court possesses upon receiving a proper request for such information from the agency. This obligation, however, does not extend to juvenile delinquency records, which remain subject to state confidentiality requirements.

Conclusion

Accordingly, it is my view that 5 U.S.C. § 9101 requires Virginia's juvenile courts to share criminal history record information with federal agencies such as the DCSA, but such information does not include juvenile delinquency records, which are otherwise subject to state confidentiality laws.

With kindest regards, I am,
Very truly yours,

Jason S. Miyares
Attorney General