What I would have said

We don't get the chance to respond to things said in committee, so......

The Senate General Laws Committee today [Feb. 23] took testimony on a bill (HB 734) that rolls back most of what was accomplished last year in the area of allowing access to some files, or parts of files, in criminal investigative records that are not ongoing. I want to stress that last phrase. NOT ongoing. We’re not talking about active cases, or case files where a trial is pending. These are files that are — in the words of Tom Haverford of Parks & Rec — dunzo.

Anyway, the bill is being brought for the stated purpose of protecting victims. I will take everyone at their word that they’re not trying to undo existing law just for the sake of undoing it.

Prosecutors testified in favor of the bill. So did the parents of Morgan Harrington, the Virginia Tech student who was murdered by Jesse Matthew, the same man that went on to kill UVA student Hannah Graham. Hannah’s mother also testified in support of the bill.

I spoke against the bill, as did the Virginia Press Association, a FOIA attorney from the Charlottesville area who used to be the Greene County Commonwealth’s Attorney, and an attorney who specializes in post-conviction claims of actual innocence.

What follows are a few points (paraphrased) made during the testimony that I want to respond to.

Prosecutors are elected officials and we’re transparent. If a reporter wants to know something, we’re happy to do an interview.

That’s refreshing to hear, and I absolutely believe the CA who said this. But interviews are not records! Being accessible to the press and granting interviews is laudable, but neither are substitutes for providing records that speak for themselves.

As grieving families, we’ve been asked numerous times for interviews and we always decline.

That is most definitely the right of these families. But this bill is not going to stop someone for asking for another interview some time in the future. This bill is about records, records that — at least as of today — have been asked for but that have not even been released.

There is no protection for victims for having their case play out again in the media or by creeps on social media.

On the one hand, this icky, awful behavior is not dependent on FOIA. These low-lifes already have a trove of information in the public domain to feed their depraved souls. Massive amounts of media coverage went into first finding the young women, then finding their killer, then seeing justice for them.

And on the other hand, if what these creeps are after are grisly pictures not in the public domain, then those photos (a) are already prohibited from release if they depict the victim, or (b) may be withheld as invading a victim’s privacy. Speaking of invasion of privacy…..

Existing law does not protect release of sensitive information.

Existing law most certainly does protect the release of sensitive information. Existing law says that closed investigative files (or specific records within the file) must be released, but they don’t have to be if one or more of 6 enumerated harms are present, including “an unwarranted invasion of personal privacy,” and if “the life or physical safety of any individual” would be endangered. It’s right there in existing law (reprinted in the bill proposal) even though it was said in committee that it wasn’t. And again, there’s that part that says photos depicting the victims cannot be disclosed.

The current law was enacted to give victims and claimants of actual innocence a right to access files.

The current law was enacted to give THE PUBLIC a right to access files. Repeated concessions were made to the bill last year as it made its way through the legislative process and on to enactment to address victims’ concerns, but access by victims was NOT the impetus behind last year’s legislation.

I have a lot of other thoughts on the bill. You can read them on our websiteand watch the replay of the House and Senate committee hearings. The bill was passed by for the day, so an up or down vote won’t come until next week. But I needed to get these things off my chest. Stay tuned.

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