RICHMOND — Virginia lawmakers gave final passage to a major open records bill that would open some access to criminal investigative files to the public.
The bill from Del. Chris Hurst, D-Montgomery, would end state law enforcement agencies’ practice of excluding nearly all of their files from the public inspection. Open record and criminal justice advocates said law enforcement agencies hiding records hinders families from getting access to records, limits the efforts of groups that try to overturn wrongful convictions, and prevents the public from holding police accountable.
The bill goes to Gov. Ralph Northam for his signature, veto or suggested changes.
Criminal investigative files are elaborate. They include interviews with people, including suspects, information about evidence, photos and videos, maps, phone records and more. The legislation would make this information available if the investigation is no longer ongoing.
The bill would allow a court to limit the release of a file for various reasons, such as if it would interfere with another ongoing investigation, would deprive someone of a fair trial, disclose the identity of a confidential source or endanger someone. It’s modeled off federal law, and 12 other states have adopted similar laws.
“This balances the public’s right to know with protections for ongoing investigations, privacy and safety,” Hurst said.
The law enforcement agency can cite one of various reasons to withhold the information. The person requesting the information can challenge that decision by taking the agency to court.
Virginia provides considerable discretion to agencies about what they can provide to the public. They’re only required to release a few details, such as the general description of an alleged crime and the time and location it was committed. The rest is discretionary, and it’s often the case that police release minimal information.
“Departments all over the state have made it a blanket policy to keep files confidential no matter what,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government.
The families of the victims of the 2019 Virginia Beach municipal building shooting were especially vocal in advocating for this legislation. They’ve said law enforcement won’t release information about the case, which they said would provide them with some resolution.
“We’re being traumatized and tortured every day by the city because we have no information on how our loves ones passed,” said Jason Nixon, whose wife died in the shooting. “We are not asking for anything special. We are asking to be treated fairly.”
Law enforcement and prosecutors fought against Hurst’s proposal, saying they were worried that people may not talk to police if they know information can be made public. Prosecutors also complained about the workload of having to sift through files.
Parisa Dehghani-Tafti, the commonwealth’s attorney for Arlington County and city of Falls Church, pushed for the bill to give officials 120 work days to respond to requests for criminal investigative files, a first-of-its-kind provision that doesn’t exist for other kinds of records. Currently, the government has five days to respond to a request, and may grant itself a seven-day extension.
Hurst and open records advocates opposed this, saying the government can petition the court for more time. Also, the law encourages the requester and government to work together on determining a reasonable release of the information. Hurst compromised on the timeline, and agreed to 60 days.
“There has been pushback, pushback, pushback every year in terms of why information can’t be released,” Sen. Mamie Locke, D-Hampton, said, adding it was time to address this issue that’s been before the legislature many times.
Records sealing bills approved
Lawmakers approved a major change to the criminal records sealing process in Virginia, which currently has one of the more restrictive systems in the country.
The legislation sent to Northam would provide for several misdemeanor charges to be eligible for automatic sealing seven years after people complete their sentence. Those offenses include trespassing, possession of marijuana and disorderly conduct.
People can petition a court to seal other misdemeanors after seven years and certain felonies after 10 years.
The records will be available in a few circumstances, like background checks for firearms or background checks for hiring police officers.
Currently in Virginia, people can petition to have their records sealed if they were not convicted. The process is tedious and people often need to hire an attorney.
The legislation also says that businesses that scrape criminal information off court websites and provide that in searchable databases are required to delete that information.