The General Assembly of Virginia has expanded the Virginia Freedom of Information Act, making it easier to request information about criminal investigations.
Starting July 1, 2021, individuals will be able to request criminal investigative files that relate to a criminal investigation or proceeding. The expanded laws require law enforcement personnel to produce the information, unless it is part of an ongoing criminal investigation or proceeding. Before the statute was amended, the release of criminal investigative files was discretionary.
Records you can access under the Virginia Freedom of Information Act
Individuals can now request the following law-enforcement and criminal records:
1. Criminal incident information relating to felony offenses contained in any report, notes, electronic communication, or other document. This includes filings through an incident-based reporting system, such as:
- A general description of the criminal activity reported;
- The date and time the alleged crime was committed;
- The general location where the alleged crime was committed;
- The identity of the investigating officer or other point of contact;
- A description of any injuries suffered or property damaged or stolen; and
- Any diagrams related to the alleged crime or the location where the alleged crime was committed, except that any diagrams described in subdivision 14 of § 2.2-3705.2 and information therein shall be excluded from mandatory disclosure, but may be disclosed by the custodian in their discretion, except where such disclosure is prohibited by law.
The information identified above can be given verbally, if the requestor agrees.
2. Criminal investigative files, defined as any documents and information, including complaints, court orders, memoranda, notes, initial incident reports, filings through any incident-based reporting system, diagrams, maps, photographs, correspondence, reports, witness statements, or evidence, relating to a criminal investigation or proceeding that is not ongoing.
Exceptions
Law enforcement personnel do not have to produce the information if it is part of an ongoing investigation or proceeding. The Virginia Freedom of Information Act defines “ongoing” as any case in which the prosecution has not been finally adjudicated, the investigation continues to gather evidence for a possible future criminal case, and where the case would be jeopardized by the premature release of evidence.
In addition, law enforcement is allowed to withhold the information if disclosure would:
- Interfere with a particular ongoing criminal investigation or proceeding in a particularly identifiable manner;
- Deprive a person of a right to a fair trial or an impartial adjudication;
- Constitute an unwarranted invasion of personal privacy;
- Disclose the identity of a confidential source or information furnished only by a confidential source;
- Disclose law-enforcement investigative techniques and procedures, if disclosure could reasonably be expected to risk circumvention of the law; or
- Endanger the life or physical safety of any individual.
Finally, law enforcement is not required to disclose photographic, audio, video, or other records that depict a victim or allow a victim to be readily identified. This type of information is not accessible to anyone except: (1) the victim, (2) members of the victim’s immediate family, if the victim is deceased, or (3) the parent or guardian of the victim, if the victim is a minor.
Additional response time
The revised legislation gives public bodies additional time to respond to Virginia Freedom of Information Act requests for certain types of criminal investigation information, from seven to 60 additional work days, as long as the public body responds to the requestor within five working days to let them know that it is not practically possible to provide the requested records, or to determine whether they are available within the five-work-day period.
Amended statutes in the Virginia Freedom of Information Act
In order to expand the Virginia Freedom of Information Act, the General Assembly amended two statutes:
- Virginia Code Section 2.2-3704, Public records to be open to inspection; procedure for requesting records and responding to request; charges; transfer of records for storage, etc., and
- Virginia Code Section 2.2-3706. Disclosure of law-enforcement and criminal records; limitations.
New statutes in the Virginia Freedom of Information Act
It also enacted six new statutes:
- Virginia Code Section 2.2-3706.1. Disclosure of law-enforcement records; criminal incident information and certain criminal investigative files; limitations.
- Virginia Code Section 2.2-3711. Closed meetings authorized for certain limited purposes.
- Virginia Code Section 2.2-3714. Violations and penalties.
- Virginia Code Section 19.2-174.1. Information required prior to admission to a mental health facility.
- Virginia Code Section 2.2-3711. Closed meetings authorized for certain limited purposes.
- Virginia Code Section 19.2-368.3. Powers and duties of Commission.
In enacting this legislation, the Virginia General Assembly endeavored to balance the importance of open government, with privacy concerns and the need to ensure that criminal investigations are not compromised through the improper or premature disclosure of information.
Click here for more information about the new laws, and to review the legislative history.
