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Virginia lawmakers vote to roll back open records reform

Charniele Herring, Rob Bell
Posted at 5:49 PM, Mar 12, 2022
and last updated 2022-03-14 10:21:12-04

RICHMOND, Va. — Virginia lawmakers gave final passage Saturday to a measure that would undo a recent reform intended to expand public access to certain law enforcement files in closed criminal investigations.

Under the bill that both the Senate and House of Delegates approved Saturday, the disclosure of such records to the press and general public would no longer be mandatory under the state's freedom of information act. Instead, disclosure would again be up to the discretion of the law enforcement agency.

The measure's sponsor, Republican Del. Rob Bell, said the bill was intended to increase protections for crime victims and their families by prohibiting the public release of sensitive information that might cause additional suffering. But opponents, including some relatives of crime victims, said the changes would reduce transparency and accountability and hinder work on wrongful convictions.

Bell's measure would still require the criminal investigative files to be released to victims, victims' immediate family members under certain conditions, and certain attorneys, including those working on post-conviction proceedings or pardons.

The Virginia Association of Commonwealth's Attorneys supported the measure, as did the parents of two young women murdered in what became high-profile cases.

The mother of Hannah Graham, an 18-year-old University of Virginia student who was abducted and murdered in 2014, described in one committee hearing learning that an “international media company” had requested files in her daughter's case shortly after she and her husband declined “persistent” requests to participate in a documentary.

“I still struggle to come to terms with what happened to Hannah," Susan Graham said. “And it is an additional source of distress to me that the media apparently now have the right to obtain and broadcast information about her case that is not already in the public domain. And this is all in the name of entertainment.”

The parents of Morgan Harrington, a 20-year-old Virginia Tech student who was abducted and murdered by the same man who killed Graham, also backed Bell's bill.

The Virginia Press Association and the Virginia Coalition for Open Government opposed the measure, along with relatives of some other crime victims who supported the mandatory disclosure provision as a police accountability measure. Transparency advocates said before the 2021 bill making disclosure mandatory took effect, law enforcement agencies routinely withheld such records.

Jason Nixon, whose wife was killed in a 2019 mass shooting in Virginia Beach, had advocated for the 2021 legislation and spoke against Bell’s bill, describing his frustrations with obtaining information from police in the shooting case.

“You guys really need to consider this,” he told a committee debating the measure. “I did this for transparency, for me and my family.”

The 2021 bill contained provisions aimed at addressing victims' privacy, including a section strictly limiting the public release of photographic, audio, video or other records depicting a victim, except for transcriptions of recorded interviews with law enforcement.

The measure now goes to Republican Gov. Glenn Youngkin for his consideration.

The 2021 law was touted as a win for transparency and good governance. But even with the expanded access, the high cost agencies sometimes charged to fulfill freedom of information act requests proved to be another barrier to accessing public records.

For instance, in 2021, The Associated Press requested state police records in a closed investigation into a failed economic development project.

The agency said it would take 295 hours to fulfill the request at a cost of $6,207.82.

The Richmond Times-Dispatch recently reported that Albemarle County police estimated it would cost $76,743.97 to provide case files related to Jesse Matthew - who pleaded guilty to killing Graham and Harrington and is serving multiple life sentences - to a representative of a TV production company. The newspaper, which cited records it obtained through a freedom of information act request, reported that the company dropped the request and no records were released.