The following is a disturbing e-mail that I received from Michael E. Pollock:
I am writing to you so that you can make the greater genealogical community aware the Virginia state legislature in its session earlier this year passed a bill that if not repealed or modified is likely to have disastrous consequences. Lest your subscribers in either Virginia or adjoining states think I am referring to the "Sunday off" law for the repeal of which the Governor has already called an emergency session of the legislature, I am NOT. I am referring to House Bill 509, which gives a county clerk sole discretion to destroy public records which are deemed by the clerk to be inconsequential. While there are provisions which call for microfilming of most of these records, the law does not provide ANY sanction against a clerk who, on the grounds of a lack of money or other reasons, destroys records which have not been microfilmed, a microfilm copy is not always as "usable" as the actual record, and the wording of the law allows the public to be denied access to the microfilm these records by a variety of means for those so inclined to use them, and some are so inclined.
Some years ago, Mrs. Roy Jordan, a friend of mine, learned of the existence of birth and death records for the city of Richmond for the period 1896-1911 which are NOT in the collections of the state Bureau of Vital Statistics, and arranged with the Family History Library in Salt Lake City to have the records microfilmed not only so they could be preserved, but also made available to the public. After the records were microfilmed, the Commonwealth of Virginia informed the Family History Library that the birth records less than 100 years old could NOT be made available to the public because of a state law imposing a restriction of 100 years on birth records. WRONG!!! Said law was not passed until 1910 and applied only to births registered with the Bureau of Vital Statistics which do not begin until 1911. Not only is there no legal authority to apply the law retroactively, but these specific births are city, not state, records, and were recorded without state authorization to do so, thus are not subject to any state restrictions regarding public access.
While there are some notable exceptions, most notably Gary Williams (the clerk in Sussex County), too many clerks consider most of the records of value to genealogists, often stashed away (rather than filed) in an out-of-the-way location in a totally random manner and also often dirty/brittle, to be little more than nuisances, because it is too time-consuming for the staff to pull these records when the are requested, and there is no staff to supervise anyone else who might have been granted access to search the records prior to 9/11. It is not unusual for a clerk to be unaware of a particular group of records, or the types of information that might be contained in them, making it very easy to declare such records "inconsequential" so that they can be destroyed. Even worse, too few in the genealogical community are aware of what some of the records can contain, yet there has been no outcry from the genealogical community.
Without such an outcry, and given the numbers of people from outside Virginia who come here to do research on their families, it is not just residents of Virginia who have a stake in this matter, the unconscionable destruction of valuable records could soon become a fait accompli. It took several years, and fortunately did not require taking the matter to court, to get the Commonwealth to acknowledge it had no authority to restrict access to the aforementioned Richmond birth records. Court action is not an option here, and the majority of clerks are likely to resist changing the law to guarantee preservation of the records because it quite honestly adds to their responsibilities. The law will be changed only by making it clear to clerks and legislatures alike that there could be serious financial repercussions in when people stop traveling to and across Virginia to do research.
Michael E. Pollock
Thank you, Michael. Here is the full text of the bill, as found at: http://leg1.state.va.us/cgi-bin/legp504.exe?041+ful+HB509ER
VIRGINIA ACTS OF ASSEMBLY -- CHAPTER
An Act to amend and reenact § 17.1-213 of the Code of Virginia, relating to the circuit court clerk's disposition of papers in ended cases.
Be it enacted by the General Assembly of Virginia:
1. That § 17.1-213 of the Code of Virginia is amended and reenacted as follows:
§ 17.1-213. Disposition of papers in ended cases.
A. All case files for cases ended prior to January 1, 1913, shall be permanently maintained in hardcopy form, either in the locality served by the circuit court where such files originated or in The Library of Virginia in accordance with the provisions of §§ 42.1-83 and 42.1-86.
B. The following records for cases ending on or after January 1, 1913, may be destroyed in their entirety at the discretion of the clerk of each circuit court after having been retained for ten 10 years after conclusion:
1. Conditional sales contracts;
2. Concealed weapons permit applications;
3. Minister appointments;
4. Petitions for appointment of trustee;
5. Name changes;
6. Nolle prosequi cases;
7. Law and chancery matters that are voluntarily dismissed, including nonsuits, cases that are dismissed as settled and agreed, cases that are dismissed with or without prejudice, cases that are discontinued or dismissed under § 8.01-335 and district court appeals dismissed under § 16.1-113 prior to 1988;
8. Misdemeanor and traffic cases, including those which were commenced on a felony charge but concluded as a misdemeanor;
9. Suits to enforce a lien;
11. Executions except for those covered in § 8.01-484;
12. Miscellaneous oaths and qualifications, but only if the order or oath or qualification is spread in the appropriate order book; and
13. Civil cases pertaining to declarations of habitual offender status and full restoration of driving privileges.
C. All other records or cases ending on or after January 1, 1913, may be destroyed in their entirety at the discretion of the clerk of each circuit court subject to the following guidelines:
1. All civil and chancery case files to which subsection D does not pertain may be destroyed after twenty 20 years from the court order date.
2. All criminal cases dismissed, including those not a true bill, acquittals and not guilty verdicts, may be destroyed after ten 10 years from the court order date.
3. All criminal case files involving a felony conviction may be destroyed (i) after twenty 20 years from the sentencing date or (ii) when the sentence term ends, whichever comes later.
D. Under the provisions of subsections B and C, the entire file of any case deemed by the local clerk of court to have historical value, as defined in § 42.1-77, or genealogical or sensational significance shall be retained permanently as shall all cases in which the title to real estate is established, conveyed or condemned by an order or decree of the court. The final order for all cases in which the title to real estate is so affected shall include an appropriate notification thereof to the clerk.
E. Except as provided in subsection A, the clerk of a circuit court may cause (i) any or all ended records, papers, or documents pertaining to law, chancery, and criminal cases which have been ended for a period of three years or longer, (ii) any unexecuted search warrants and affidavits for unexecuted search warrants, provided at least three years have passed since issued, (iii) any abstracts of judgments, and (iv) original wills, to be destroyed if such records, papers, documents, or wills no longer have administrative, fiscal, historical, or legal value to warrant continued retention, provided such records, papers, or documents have been microfilmed or converted to an electronic format. Such microfilm and microphotographic process processes and equipment shall meet state archival microfilm standards pursuant to § 42.1-82, or such electronic format shall follow state electronic records guidelines, and such microfilm records, papers, or documents so converted shall be placed in conveniently accessible files and provisions made for examining and using same. The clerk shall further provide security negative copies of any such microfilmed materials for storage in The Library of Virginia.