Town Clerk Libby Hume attended a FOIA Training webinar provided by the FOIA Council related to law enforcement records and the newly enacted legislative changes. Hume has provided the presentation to Chief Pruitt to review.
HB734 – Virginia Freedom of Information Act; disclosure of certain criminal records. Provides that (i) criminal investigative files relating to a criminal investigation or proceeding that is not ongoing are excluded from the mandatory disclosure provisions of the Virginia Freedom of Information Act, though they may be disclosed by the custodian of such records to certain individuals except as otherwise provided in the bill, and (ii) with the exception of disclosure to an attorney representing a petitioner or inspection by an attorney or a person proceeding pro se in a petition for a writ of habeas corpus or writ of actual innocence or any other federal or state post-conviction proceeding or pardon, no criminal investigative file or portion thereof shall be disclosed to any requester except (a) the victim; (b) the victim’s immediate family members, if the victim is deceased and the immediate family member to which the records are to be disclosed is not a person of interest or a suspect in the criminal investigation; or (c) the victim’s parent or guardian, if the victim is a minor and the parent or guardian is not a person of interest or a suspect in the criminal investigation or proceeding, unless the public body has made reasonable efforts to notify any such individual of the request for such information. Upon receipt of notice that a public body has received a request for criminal investigative files, such persons shall have 14 days to file in an appropriate court for an injunction to prevent disclosure of the records and the time period within which the public body has to respond to the underlying request shall be tolled pending the notification process and any subsequent disposition by the court. The bill requires the court to consider certain information in making its determination and provides that a public body shall be prohibited from responding to the request until at least 14 days have passed from the time notice was received by any such individual listed in clauses (a), (b), or (c) and shall not disclose any criminal investigative files if the court awards an injunction.
Essentially, this law reverses the previous law that required the government to disclose law enforcement records to investigations that are not ongoing. This included not only criminal investigative files, but diagrams of the alleged crime and/or crime scene as well.
The previous law required law enforcement agencies to disclose some closed investigative files under the Virginia Freedom of Information Act. Officials were routinely denied access to those records before the law was changed last year.
The new legislation restricts that newly granted access only to victims’ immediate families and lawyers doing post-conviction work, a sharp reversal proponents say would prevent grisly details or sensitive information about a victim from becoming entertainment fodder. However, open-government advocates say it guts a law hailed as a rare victory on FOIA policy, one that already included several exemptions to protect victims’ privacy.