A bill that would open past police investigative files to the public sailed through the Virginia House of Delegates on Thursday.
Sponsored by Del. Chris Hurst, D-Blacksburg and other lawmakers, the legislation to amend the state’s open records law passed on a 59-37 vote.
Though it was mostly a party line vote carried by Democrats, five Republicans crossed over to support the bill. It could come up for Senate hearings next week.
If it becomes law, the measure could begin to end state law enforcement agencies’ longstanding practice of shielding nearly all their files from the public — whether they are incident reports from last week or files that haven’t been looked at in decades.
Though the Virginia Freedom of Information Act currently allows police, prosecutors and sheriff’s offices statewide to release such files if they want to, the departments typically say no to all such requests.
The bill says that “criminal investigative files” become public in Virginia when a court case is over. In cases that haven’t been prosecuted, the bill says, the files would become public three years after the incident occurred.
The legislation separately increases what police departments and sheriff’s agencies must release about more recent criminal incidents.
Proponents contend the changes will allow outside organizations to examine past cases independently, and allow families to get closure in death cases.
“We can’t do our basic work, we can’t investigate, without these files,” said Michelle Feldman, an official with the Innocence Project, a nonprofit group that works to overturn wrongful convictions.
“These files contain the critical information used to follow up on leads,” added Feldman, who’s been working to support the legislation. “After an investigation is completed, it really doesn’t make sense to withhold them.”
She said the bill would also allow the public to better examine police shootings, which she pointed out are typically investigated by the officers’ own agencies.
“If the public can’t get those records about what the investigation found, how are they ever going to have comfort that officers were justified in using force?” Feldman asked.
The bill would further allow relatives to learn more about what happened in particular cases, such as the families of those killed in the May 2019 shooting at the Virginia Beach Municipal Center.
“They can’t get closure because they are not getting the full truth and the full picture,” Feldman said.
But those against the legislation say the police investigative files contain lots of sensitive information — including evidence from witnesses and information about other crimes — that must be protected.
“We oppose efforts to make criminal investigative files public without law enforcement’s discretion,” Dana G. Schrad, the executive director of the Virginia Association of Chiefs of Police, told the Daily Press last week.
It’s crucial “to protect sensitive information from release that would compromise pending or lateral investigations, or would further traumatize victims and their families,” she added.
Police worry that if statements of cooperating witnesses are released — even if the names are redacted from the files — those investigative sources could dry up. Investigators also say the files often contain personal background and information about people’s lives that could “disparage an individual unnecessarily” if released.
The police and prosecution case files are often extensive — sometimes contained in several boxes.
They include detailed statements from defendants, victims, witnesses, and family members; officer body camera footage; crime scene photos and videos; internal memos between officers and prosecutors; and lab reports regarding blood, guns, and sexual assault, among lots of other information.
Some exceptions to the bill were added over the past week as it made its way through the House of Delegates voting process.
Hurst added an amendment Wednesday saying that if police and prosecutors believe releasing the case file “will jeopardize the possibility of future prosecution in a cold case” — defined as one more than three years old — they can ask a judge for permission to withhold it.
Another amendment protects sensitive photographs, such as bloody crime scene pictures or evidence of sexual assault.
The legislation says that photos, videos, and other records “depicting a victim or allowing a victim to be readily identified” can’t be released. (The bill, however, would allow those records to go to the crime victim — or to certain relatives in cases where the victim is deceased or a minor).
The bill also maintains the current practice of allowing police to redact the names of victims and police informants.
Hurst, the bill’s sponsor, said that he’s tried to compromise to gain support for the bill. “We’ve been really intentional with trying to work through some of the concerns that stakeholder groups have,” he said.
“I think it sets up a fair process for (law enforcement agencies) to challenge whether or not a file should be released, but still gives the presumption to the requester that it’s going to be released unless a judge determines otherwise.”
Democrats all supported the legislation, while five Republicans voted in favor of it: Jeffrey Campbell of Marion; Matt Fariss of Rustburg; Terry Kilgore of Gate City, Israel O’Quinn of Bristol; and Nick Rush of Christiansburg.
Such bipartisan support could bode well as the bill moves over to the Senate, said Megan Rhyne, the executive director of the Coalition for Open Government. “I think that is a positive sign for once it does crossover,” she said. “I’m certainly hopeful that it’ll go through.”
Hurst said he’s not sure what will happen in the Senate next week, “but I’m optimistic it will at least get a fair hearing.”
Peter Dujardin, 757-247-4749, email@example.com
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