March 2, 1976

THE HONORABLE JAMES A. CALES, JR.
Commonwealth's Attorney for the City of Portsmouth

75-76 284

This is in reply to your recent letter in which you asked whether there is any State law that requires the Portsmouth Police Department to maintain records of crimes and specific offense reports and, if so, how long such records and reports must be maintained. You also inquired as to the procedure which should be utilized in destroying such records at such time as destruction is permissible.

Section 15.1-135.1(A), Code of Virginia (1950), as amended, provides, in part, as follows with respect to the records to be maintained by sheriffs and chiefs of police:

"It shall be the duty of the sheriff or chief of police of every county, city, or town to insure, in addition to other records required by law, the maintenance of adequate personnel, arrest, investigative, reportable incidents, and noncriminal incidents records necessary for the efficient operation of a law enforcement agency."

The records required to be maintained by this section are exempt from the provisions of the Virginia Freedom of Information Act (2.1-340 to -346).

Your inquiry has specific reference to "records of crimes and specific offense reports," which I assume relates to the definitions of "arrest records" and "investigative records." "Arrest records" are defined in §15.1-135.1(B)(2) as follows:

". . . a compilation of information, centrally maintained in law enforcement custody, of any arrest or temporary detention of an individual, including the identity of the person arrested or detained, the nature of the arrest or detention, the charge, if any, and the final disposition or present status of each charge of arrest included in the record."

"Investigative records" are defined in §15.1-135.1(B)(3) as follows: ". . . the reports of any systematic inquiries or examinations into criminal or suspected criminal acts which have been committed, are being committed, or are about to be committed."

Section 42.1-23.1 defines "public record" as "a record which an official is required by State or local law to maintain." In light of §15.1-135.1, the records about which you are concerned are public records. Such records, however, apart from their exemption under the Virginia Freedom of Information Act, must be maintained confidentially, pursuant to Department of Justice Regulations on Criminal Justice Information Systems found in 40 Fed.Reg. 22114 (1975), if the Portsmouth Police Department has funded its criminal history record information system in whole or in part with funds made available by the Law Enforcement Assistance Administration.

You will recall that, in an Opinion to you dated September 29, 1975, I ruled that your Office must comply with §42.1-23.1 in the destruction of its records. This section provides in pertinent part, as follows:

"The State Library Board shall formulate and execute a program to inventory, schedule, and microfilm official records of counties and cities which it determines have permanent value and to provide safe storage for microfilm copies of such records, and to give advice and assistance to local officials in their programs for creating, preserving, filing and making available public records in their custody."

Based on the foregoing section, I advised you that you should communicate with the Archives Division of the State Library for assistance in determining which of your records have permanent value. You were advised further that, once the State Library had determined which of your records were of no permanent value, you could then destroy all such records which had no enduring legal significance. Records of permanent value or enduring legal significance should be retained.

The procedure to be followed with respect to the records of the Portsmouth Police Department is similar to the foregoing procedure. The Police Department should communicate with the State Library with respect to disposition of the records required to be kept by §15.1-135.1. If the State Library Board determines that any of such records have permanent value, it will establish a program to inventory, schedule and microfilm them and provide safe storage for the microfilm copies thereof. If the State Library Board determines that the records of the Portsmouth Police Department have no permanent value, they may be destroyed (1) if they are no longer "necessary for the efficient operation" of the Portsmouth Police Department [§§15.1-135.1(A)] and (2) if they have no enduring legal significance. In considering whether arrest and investigative records have enduring legal significance, it should be noted that such records may be necessary in the defense of suits brought against officers of the Department for torts, such as false arrest and false imprisonment, and pursuant to the Civil Rights Act of 1871, 42 U.S.C. §1983. Section 8-24 provides that actions for personal injuries ". . . shall be brought within two years next after the right to bring the same shall have accrued" and that actions pursuant to 42 U.S.C. §1983 ". . . shall be brought within one year next after the right to bring the same shall have accrued."

I am, therefore, of the opinion that the Portsmouth Police Department is required by §15.1-135.1 to maintain arrest and investigative records. Such records may be destroyed when and if the State Library has determined they have no permanent value, if they are no longer necessary for the efficient operation of the Portsmouth Police Department, and if they have no enduring legal significance. Because of the confidential and sensitive nature of such records, their destruction should be accomplished in a secure manner.