00-058

COURTS OF RECORD: CLERKS, CLERKS' OFFICES AND RECORDS.

HEALTH: VITAL RECORDS.

DOMESTIC RELATIONS: MARRIAGE GENERALLY.

ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT

Original marriage license and certificate maintained by circuit court clerk constitute vital records required to be open to inspection by public. Public may have access to microfilmed copies of such records.

The Honorable Michael M. Foreman
Clerk, Circuit Court of the City of Winchester

September 27, 2000

You ask whether the original marriage license and certificate maintained by the clerk of the circuit court pursuant to § 20-20 of the Code of Virginia constitute vital records required to be kept confidential. In addition, you ask whether the public may have access to microfilmed copies of these records, which are also maintained by the clerk.

Section 20-20 provides:

The clerk to whom the license and certificate are returned, shall file and preserve the original in his office, and make an index of the names of both of the parties married.

When the certificates of such person celebrating such marriage are returned to the clerk, and recorded as provided in this section and § 32.1-267, copies of the same properly certified by the clerk lawfully having the custody thereof or properly certified by the State Registrar of Vital Statistics shall be prima facie evidence of the facts therein set forth in all courts of this Commonwealth.

A marriage license and certificate are considered to be a vital record.¹ The confidentiality of vital records is protected by § 32.1-271(A), which reads:

To protect the integrity of vital records and to ensure the efficient and proper administration of the system of vital records, it shall be unlawful, notwithstanding the provisions of §§ 2.1-340.1 through 2.1-346.1, for any person to permit inspection of or to disclose information contained in vital records or to copy or issue a copy of all or part of any such vital records except as authorized by regulation of the [State] Board [of Health] or when so ordered by a circuit court of this Commonwealth. [Emphasis added.]

Sections 2.1-340.1 through 2.1-346.5 comprise The Virginia Freedom of Information Act, which permits public access to official records, unless otherwise provided by law.² Section 17.1-208 also requires that "[t]he records and papers of every circuit court shall be open to inspection by any person." (Emphasis added.) The use of the word "shall" in a statute generally implies that its terms are intended to be mandatory, rather than permissive or directive.³

To determine legislative intent in this instance, statutes dealing with the same subject matter should be construed together to achieve a harmonious result, resolving conflicts to give effect to each statute, to the maximum extent possible.⁴ Another accepted principle of statutory construction is that, when it is not clear which of two statutes applies, the more specific statute prevails over the more general.⁵ Also, when statutes provide different procedures on the same subject matter, the more general gives way to the more specific.⁶

In this instance, it is clear that both §§ 32.1-271(A) and 17.1-208 apply. It is also apparent that § 17.1-208 is the more specific statute pertaining to all records and papers maintained by the clerk of the circuit court, and that § 32.1-271(A) is the more general statute. Consequently, the provisions of § 32.1-271(A) must give way to the more specific provisions of § 17.1-208.

Therefore, I conclude that the original marriage license and certificate maintained by the clerk of the circuit court pursuant to § 20-20 constitute vital records, and that § 17.1-208 requires such records to be open to inspection by the public. Furthermore, pursuant to § 17.1-208, the public may have access to microfilmed copies of such records.

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Footnotes:

1. See § 32.1-249(12) (defining "vital records" as "certificates or reports of … marriages").

2. See § 2.1-340.1.

3. See Andrews v. Shepherd, 201 Va. 412, 414, 111 S.E.2d 279, 281-82 (1959); see also Schmidt v. City of Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965); Op. Va. Att'y Gen.: 1998 at 56, 58; 1996 at 178, 178; 1991 at 238, 240; 1989 at 250, 251-52; 1985-1986 at 133, 134.

4. VEPCO v. Prince William Co., 226 Va. 382, 387-88, 309 S.E.2d 308, 311 (1983); 1991 Op. Va. Att'y Gen. 7, 8; id. at 159, 160; see also Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957) (statutes relating to same subject are not to be considered in isolation but must be construed together to produce harmonious result that gives effect to all provisions if possible).

5. See Va. National Bank v. Harris, 220 Va. 336, 257 S.E.2d 867 (1979); Scott v. Lichford, 164 Va. 419, 180 S.E. 393 (1935); City of Roanoke v. Land, 137 Va. 89, 119 S.E. 59 (1923); Op. Va. Att'y Gen.: 1990 at 227, 228; 1987-1988 at 276, 277; 1980-1981 at 330, 331.

6. See Davis v. Davis, 206 Va. 381, 386, 143 S.E.2d 835, 839 (1965); 1976-1977 Op. Va. Att'y Gen. 93, 94.