The Roanoke Times
ROANOKE — A New River Valley state delegate is renewing his push to loosen up Virginia’s restrictive policies when it comes to the release of law enforcement’s criminal investigative files.
Improving transparency for police records was one of a handful of unresolved issues from the General Assembly’s special session on police reform and other topics that wrapped up this month. Del. Chris Hurst, D-Montgomery, introduced a bill that called for ending state law enforcement agencies’ practice of hiding away nearly all of their files from the public. Lawmakers said details in the bill needed further vetting, so they sent it to the Virginia Freedom of Information Act Council.
“This is about trying to achieve justice, especially in our criminal justice system and in our court system,” Hurst told the council.
A subcommittee of the council has met twice so criminal justice advocates, law enforcement officials and lawmakers could work on a draft of a bill that will go before the council’s full committee before the start of the regular session that is scheduled to begin Jan. 13.
Criminal investigative files are elaborate. They include interviews with people, including suspects, information about evidence, photos and videos, records and more.
The legislation would make this information available if the investigation is no longer “ongoing,” which the council still is working on defining. The draft would make the file available if the case has been resolved in court or three years have elapsed in which a decision was made to take no action in the investigation.
The council also is trying to work out the desire to prevent the release of graphic images of crime scenes and ensure victims’ privacy is protected. According to the draft of the bill, no video, audio or record depicting the victim could be released to anyone except the victim or members of the immediate family.
Michelle Feldman, the Innocence Project’s director of state campaigns, told the council that having access to interviews with victims can be important in exoneration cases. She cited the case of Winston Scott, who was convicted of the 1975 rape of a Fairfax County woman largely on her identification of him in a photo spread. The woman later recalled expressing to police she was not emphatic when she chose Scott from the photos. Scott was exonerated last year.
The Innocence Project said most states have much more open records than in Virginia, and they provide the exceptions to protect the integrity of investigations and the safety and privacy of victims.
The draft of 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.
Law enforcement officials also worried the change to the law would have a chilling effect on victims and witnesses. Herndon Police Chief Maggie DeBoard, president of the Virginia Association of Chiefs of Police, said police might want to inform victims and witnesses the case file could be released to the public at some point. Law enforcement officials have expressed concern about case files from decades ago being released, which could retraumatize victims and their families.
“There is a really delicate balance between individual privacy rights and people’s right to know,” DeBoard told the council. “And it means really releasing enough information to satisfy the public’s understanding of what happened in a criminal case and what the law enforcement agency did to solve that crime, and it also means that sometimes information, if released, would do more harm than good for crime victims.”
Law enforcement officials have said they are not opposed to the concept of the legislation, which is to improve transparency.
Law enforcement agencies could be more transparent now, but choose not to be. 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.
“The reason why we need this bill is that we find while there is discretion to release a criminal investigative file, it never really happens in actual practice in the commonwealth of Virginia,” said Hurst, whose experience as a former WDBJ-7 journalist informed him about this problem.
Hurst and other open record advocates said that 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.
Hurst has brought up the case of 18-year-old Kionte Spencer, whom Roanoke County police fatally shot in 2016. The case is closed, and the Roanoke County prosecutor at the time ruled the officers were justified in shooting Spencer, but Spencer’s family still hasn’t been able to see the unedited dash cam video that captured the encounter.
Jason Nixon, whose wife died in in the 2019 shooting at the municipal building in Virginia Beach, gave emotional testimony to the council about his inability to get closure when law enforcement won’t release the case file to him. He also said he has no way of knowing whether he and other families could file a lawsuit because he doesn’t have enough information.
“The shooter is dead, there’s nothing to hide,” Nixon said. “So what are they hiding? Why can’t I have the information I’m asking for?”
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