On March 31, 2021, Virginia Governor Ralph Northam signed into law a new Act significantly expanding the scope of the Virginia Freedom of Information Act (“FOIA”). The law, which goes into effect on July 1, 2021, will allow the public to access government records regarding closed police investigations. Prior to this new law’s enactment, law enforcement agencies were able to deny access to criminal investigative files regardless of whether the investigation was open or closed.
What is FOIA?
FOIA refers to laws enabling the public to access government documents. There are federal FOIA laws and FOIA laws in every state, and in Virginia the law is known as the “Virginia Freedom of Information Act.”
In Virginia, the purpose of FOIA is “to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.” Thus, FOIA allows the public to make requests to any governmental agency—from town councils to the Governor’s office—for public records.
There are, however, numerous exclusions to FOIA, which permit (but do not require) governmental agencies to deny FOIA requests for certain types of documents. Prominent examples include personnel information; confidential information regarding victims; educational records; trade secrets; and criminal investigative files.
Criminal Investigative Files Under Current FOIA Law
Under the current FOIA, effective until July 1, 2021, most criminal investigative files were excluded from mandatory disclosure. Generally, law enforcement agencies are only required to provide a general description of the criminal activity reported; the date 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 general description of any injuries suffered or property damaged or stolen; routine booking photographs of adult arrestees; information relative to the identity of an adult who is arrested and charged; and records of completed “unattended death” investigations to the deceased’s immediate family. An unattended death means a death determined to be a suicide, accidental or natural death where no criminal charges will be initiated.
This information rarely amounts to much. Rather, the bulk of information regarding any criminal case will come from criminal investigative files, defined as any documents and information, including complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports, witness statements, and evidence relating to a criminal investigation or prosecution.
Unfortunately, law enforcement agencies are not currently required to disclose these sorts of documents. Practically speaking, law enforcement agencies did not disclose criminal investigative files at all. Notably, the current FOIA law in Virginia makes no distinction between open and closed investigations. Thus, law enforcement agencies routinely deny FOIA requests even when relating to investigations conducted years and years prior to the request. But, as discussed below, this will all change on July 1, 2021.
Criminal Investigative Files Under the New FOIA Law
The new Act signed into Virginia law on March 31, 2021, and which becomes effective on July 1, 2021, adds a whole new section to FOIA dealing with criminal investigative files. This new law requires the government to disclose law enforcement records to investigations that are not ongoing. This includes not only criminal investigative files, but diagrams of the alleged crime and/or crime scene as well.
This new FOIA statute, which will be codified at Virginia Code § 2.2-3706.1, is certainly expansive, but it is not without limitations.
First, the criminal investigative files must be related to investigations that are not ongoing. What makes an investigation ongoing? It is “a case in which the prosecution has not been finally adjudicated, the investigation continues to gather evidence for a possible future criminal case, and such case would be jeopardized by the premature release of evidence.”
While for obvious reasons there are no court decisions regarding this definition, the language of this statute suggests that a case must meet all of these requirements to be deemed ongoing. In other words, it is not enough that a defendant has not yet been convicted; it must also be true that the investigation is continuing to gather evidence of other crimes and that the fulfilling the request would harm any such future case.
Second, disclosure under FOIA is not mandatory if doing so would interfere with a particular ongoing criminal investigation or proceeding. However, it is not enough for the government to simply assert that this is the case; they must do so in “a particularly identifiable manner,” which means, essentially, that they must concretely state their basis.
Third, disclosure under FOIA is not mandatory if doing so would deprive a person of a right to a fair trial or an impartial adjudication.
Fourth, disclosure under FOIA is not mandatory if doing so would constitute an unwarranted invasion of personal privacy.
Fifth, disclosure under FOIA is not mandatory if doing so would disclose the identity of a confidential source or information given by a confidential source.
Sixth, disclosure under FOIA is not mandatory if doing so would disclose law-enforcement investigative techniques and procedures, but only if such disclosure could reasonably be expected to risk circumvention of the law.
Finally, disclosure under FOIA is not mandatory if doing so would endanger the life or physical safety of any individual.
While the government may continue to use these exceptions to deny the public access to law enforcement records, no longer will agencies be able to deny requests for each and every criminal investigation record, as the current FOIA permits. Virginia’s new FOIA law sends a clear message to these agencies that the future will be one of more open and greater public access.
Fishwick & Associates: Experienced FOIA Attorneys
If you have interest in filing a FOIA request or have been denied documents requested by you under FOIA, the experienced Virginia attorneys at Fishwick & Associates can help you understand your legal options at no cost to you. To schedule your confidential consultation, complete our online contact form or call us at 540-345-5890
2020 Bill Text VA H.B. 2004.
Va. Code § 2.2-3700 et seq.
Va. Code § 2.2-3706 (effective until July 1, 2021).
Va. Code § 2.2-3706.1 (effective July 1, 2021).
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