Preserve access to police records

The following originally appeared in the March 6, 2022, editions of The Virginian-Pilot and Daily Press
Brian Colligan, the editorial page editor, serves on VCOG's board of directors
reprinted with permission


The General Assembly could make an egregious error this week if it acts on a public records bill out of fear and due to misinformation rather than relying on fact and defending the public’s best interest.

When lawmakers voted last year to require the release of inactive criminal investigation files, it was a landmark moment for transparency in Virginia. Those records shine a needed light on criminality and law enforcement operations, information which benefits the public and should be available for review.

State law previously made release of those files discretionary, which meant police departments, sheriffs’ offices, prosecutors and other law enforcement agencies could decide whether to honor a request for records. The answer was almost always “no.”

That was one of many problematic exemptions contained in Virginia’s Freedom of Information Act. The law proclaims clearly in its preamble that the “affairs of government are not intended to be conducted in an atmosphere of secrecy” but includes dozens of excuses for public officials to do precisely that.

The 2021 bill, sponsored by then-Del. Chris Hurst and passed with bipartisan support, said law enforcement files pertaining to closed cases should be public records. This was compromise legislation, narrow by design, and prohibited the release of things such as photos of crime victims that might further traumatize them or their families.

Among the advocates were families of those killed in the 2019 shooting at the Virginia Beach Municipal Center, who were frustrated by roadblocks to seeing investigation files. And the result was a move toward transparency in government, a positive for the commonwealth.

Now the legislature is poised to undo its good work.

As soon as Monday, the Senate will consider House Bill 734, which would return discretion to law enforcement as to whether those records ever see the light of day. The bill has already passed the House and needs only approval from the upper chamber. That the legislation is this close to reaching the governor’s desk is malpractice by lawmakers.

Reporting by Patrick Wilson at the Richmond Times-Dispatch suggests some supporters of the legislation, sponsored by Del. Rob Bell, believe it is necessary to prevent the release of sensitive crime photos — something already prohibited by law.

“[N]either Bell nor the Virginia Association of Commonwealth’s Attorney’s provided any evidence while the bill was debated this year that such photos had been released,” Wilson reported on Wednesday.

Previously Wilson reported, “Bell acknowledged [in an interview] he was unaware of any police agency or prosecutor under the 2021 law who was forced to turn over a sensitive photo from a closed case file. He said he knows of no police agency that was forced under the 2021 law to turn over records that had the name of any confidential source in a case.”

Worse, this bill would also erase any distinction between “inactive” case files and other records, provide access exclusively to victims and their families but not the general public, and put discretion over any records release back in the hands of law enforcement.

Virginia needs more transparency in government, not less. And lawmakers have themselves confirmed that they are acting based on misinformation, believing it necessary to change state law to prevent something that does not and cannot happen as the law is written.

Communities benefit from having more information about law enforcement activity. Closed cases provide a window into investigations and operations and allow for informed public oversight of police. That’s valuable in helping to strengthen the bonds of trust between officers and the citizens they serve.

Legislators still have one chance to do what’s right. The Senate should oppose this bill and preserve access to inactive criminal case files. Discarding this important advancement in government transparency would be a profound mistake.

(Disclosure: Editor in Chief Kris Worrell is treasurer for the Virginia Press Association and Opinion Editor Brian Colligan serves on the Virginia Coalition for Open Government Board of Directors. Both organizations oppose HB734.)


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