The Virginia General Assembly is preparing to change the state’s open records laws again, removing a recent provision that required police and prosecutors to release closed files to any requester. The changes would also require crime victims to be notified whenever law enforcement is inclined to release a report in open or closed criminal cases.
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For many years, the state law on criminal investigative files stated that law enforcement had total discretion on whether to release anything more than the basic time, nature and location of an incident. But last year, in response to victims of the 2019 Virginia Beach mass shooting who were unhappy with the police investigation, the law was changed to say that law enforcement “shall provide … criminal investigative files … relating to a criminal investigation or proceeding that is not ongoing.”
The change in 2021 created an unprecedented opening for the public and the news media to obtain police files but raised objections from families who didn’t want details of tragedy involving their love ones to be released. Two true-crime filmmakers, including the Investigation Discovery channel show “See No Evil,” requested the case files of Morgan Harrington and Hannah Graham, college students who were abducted and murdered in Charlottesville. Jesse Matthew was convicted of both slayings in 2015 and 2016. The parents of both women implored a Virginia Senate committee to restrict access to their daughters’ case files.
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“We believe in media access. The media has been invaluable,” said Gil Harrington, Morgan Harrington’s mother. “First they helped us find our daughter, then they helped us find her killer.” But she added, “I believe that the public’s right to information must be balanced with the family’s right to privacy. Free access to information would energize the ‘murder groupies,’ ” people who closely follow crime cases. She described receiving a number of “disturbing, fictional, pornographic descriptions of Morgan’s final moments.”
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Harrington added, “Please spare us and other victims’ families the anguish of reliving the details of our beloved’s murder again and again and again.”
Susan Graham, Hannah Graham’s mother, said the change in the law last year had created “unintended consequences.” She said two different companies have been pushing aggressively for interviews.
“No one ever gets over the loss of their child,” Susan Graham said. “It is a source of considerable additional stress to me that third parties now have the right to obtain and broadcast details from the closed police files, all in the name of entertainment. Surely access to such information should be restricted to those with a legitimate interest.”
Del. Rob Bell (R-Albemarle) learned of the Harringtons’ and Grahams’ concerns and proposed an amendment to the Virginia Freedom of Information Act. The amendment would allow law enforcement discretion to release open and closed files, and says closed files shall be released to victims’ families and to attorneys pursuing post-conviction cases. The proposed amendment also says no open or closed files will be released to anyone until the victims are notified and given 14 days to object. If a victim objects, they must go to court and file for an injunction, and a judge would decide whether the file should be released, consider whether the release would be an unwarranted invasion of privacy and how the files would be used.
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“It’s an effort to provide some additional protections for information in a criminal investigative file,” Bell said, “to protect crime victims who would worry that the information would be available for publication.” The current law already prohibits the release of any photos, audio or video which depict a victim, unless it is to a victim or their family.
The current Virginia FOIA law
Police and prosecutors around Virginia have typically used their discretion to deny access to virtually all of their files, from all requesters, particularly in open cases. The bill would return that discretion to them in closed cases.
Law enforcement doesn’t deny access in all cases. In 2018, Fairfax County police chose to release information that typically was kept confidential: an in-car video recording of two U.S. Park Police officers pursuing and then fatally shooting unarmed motorist Bijan Ghaisar. Then-Chief Edwin C. Roessler Jr. decided, as Park Police and federal authorities maintained their silence, that the Ghaisar family and the public should see the video and released it despite federal objections. When The Washington Post requested police reports and a second video of the shooting, Roessler used his discretion to release those, too.
Video released by Fairfax County Police in January 2018 shows U.S. Park Police chasing, and shooting at Bijan Ghaisar's vehicle in 2017. (Fairfax County Police Dept.)
“The true facts of that case,” Sen. Scott A. Surovell (D-Fairfax) said, “would have never been revealed had the Fairfax County Police Department not released the dash-cam footage, demonstrating what occurred, and the understanding of that event would have been markedly different had that footage not been released.” The Park Police have refused to discuss the case for more than four years. Officers in that case were eventually indicted in Fairfax on charges of manslaughter, and the case is pending.
Video shows Park Police fired nine shots into Bijan Ghaisar's Jeep at close range, killing him
Under the new law, the police would have to obtain permission from the victim to release the video, but the question of who is the victim would be up in the air, Surovell noted. In many cases where an officer shoots or injures someone, the police consider the officer the victim because of the actions that caused them to act. No victim assistance has ever been extended to the Ghaisar family by police.
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Jason Nixon, whose wife was slain in the Virginia Beach shooting, helped push for passage of last year’s bill that opened closed files to anyone. He, too, raised the question of how to define “victim,” since unmarried partners or other close acquaintances of victims might be excluded. Nixon said there should be allowances for accredited media, which he said have the resources to push for such information. But anyone who misuses a criminal file should be held accountable.
The bill, H.B. 734, was passed by the House last month and the Senate on Tuesday. It is headed to a conference committee to refine the language of who would be considered a victim.
“The privacy of victims is important, and that’s why we made sure there were protections built into the law when we passed it last year,” Megan Rhyne of the Virginia Coalition for Open Government said in an email. She noted that photos of victims cannot be released and that police and prosecutors may still withhold any records they think constitute an unwarranted invasion of privacy.
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She said the bill now proposed is a “rollback of gains achieved last year, where we went from a long history of police and prosecutors never releasing records to one where we can at least expect law enforcement to open the files to see what still cannot be released, what can be released and what must be released.”
Rhyne said authorities could redact inappropriate material “while still giving access to the information that documents how the police and prosecutors go about their official duties.”
Betsy Edwards, executive director of the Virginia Press Association, said the bill was “totally unnecessary.”
“Police currently have, and use, their existing discretion to deny unreasonable requests from the public or media that would violate victim privacy,” Edwards said. The bill “will unnecessarily prevent responsible journalists and the public from accessing case files they need to keep the public informed about cases. It will also prevent police from disseminating information when reasonable requests are made by the media and public.”
The Virginia Victim Assistance Network did not take a position on the bill and declined to comment.