Closed criminal investigative files exempt from Virginia’s open records laws

(The Center Square) — At the Virginia Freedom of Information Advisory Council’s most recent meeting, Alan Gernhardt, its executive director, recalled what Virginia’s laws governing access to criminal records files were like over a decade ago.

“I recall at the time, the press association’s attorney described the section on criminal records as a shotgun shack,” Gernhardt told the council.

Currently, both ongoing and closed criminal investigative files are exempt from disclosure. According to the attorney in Gernhardt’s recollection, criminal files were one of the original exemptions in the commonwealth’s Freedom of Information Act passed in 1968, but that section had been added to and modified so many times by the early 2000s, that it felt haphazard.

According to Megan Rhyne, the executive director of the Virginia Coalition on Open Government, it’s in a similar state today.

Though Rhyne told The Center Square it’s generally difficult to compare states’ open records laws, she also said plainly that Virginia has “probably the worst access” to closed criminal investigative files.

The result? There is less accountability for police and prosecutors, according to Rhyne.

“It just cuts off a major avenue of any kind of external accountability for police and prosecutors,” Rhyne said. “And they’re like, ‘Well, we’ll do it, we’ll investigate ourselves.’ And that’s great – but every other government entity has external accountability that we just don’t have in the same kind of way for law enforcement and prosecutors.”

Perhaps a police officer made some missteps in a criminal case brought against a Virginia resident, for example, and later convicted of a crime or found guilty of misconduct and decertified. Whether the resident was convicted or his charges were ultimately dismissed, he would have no recourse – besides the record keeper’s discretion – if he wanted to investigate the officer.

There could have also been much more transparency sooner in the case of the Virginia Tech shooting in 2007, according to Rhyne, if the state’s protections for criminal records weren’t as stringent.

“There was a lot of consternation here in Virginia about the release of any records having to do with the shooting. There was huge resistance to releasing anything having to do with that,” Rhyne said.

Connecticut, however – a state much more open with its criminal case files than Virginia, according to Rhyne – did things differently after the Sandy Hook shooting in 2012. A website was created to share information with the public and host pertinent records.

“People could look at what was there and people had a right to ask for additional information,” Rhyne said, noting that the state Legislature did pass some legislation at the time on when and how some photos could be displayed. “But they didn’t cut off access to everything,” she added.

The General Assembly passed several bills this year amending the FOIA law, but there were just a few pertaining to access to criminal records sponsored by Sens. Danny Diggs, R-York, and Russet Perry, D-Loudoun. Diggs is a retired sheriff, and Perry is a practicing attorney and a former prosecutor in Loudoun County’s Commonwealth’s Attorney’s office.

Diggs’ law enables a victim’s insurance company and attorney to access the victim’s records if needed and also allows for the waiving of the 14-day wait time. Before Perry’s bill was passed, agencies could deny victims, victims’ families, attorneys, or other relevant parties access to criminal case records if they didn’t live in Virginia. Now, residency no longer plays a role in that decision.

After a review of how Virginia’s FOIA laws on closed criminal investigative files have evolved over the past decade (it has been amended at least ten times since 2013), advisory council Chair Marcus Simon, D-Fairfax, asked the others present whether they wanted to look into the existing law more deeply.

“Is there any appetite to revisit this issue now, or have a subcommittee maybe start to dig into this? Do we want to go back to [an earlier] version or are we tired of going back and forth and ping ponging?” Simon asked.

“Wearing my local government representative hat, the flip flopping has been quite cumbersome for localities, so I would be a proponent of ‘let’s give it a bit more time and let’s see how our current structure is working’ before we go back in and reevaluate,” said council member Lola Rodriquez Perkins, Surry County attorney.

After some discussion and no apparent interest from the council in further reviewing the section, Simon called it.

“One of the first things I learned as a legislator is to learn how to count,” Simon joked. “I may be the chairman, but I need votes to make things happen.”