On Wednesday, the Senate Committee on General Laws and Technology voted 8-2 to advance a bill that would broaden public records laws and stop law enforcement and prosecutors from shielding investigative files from the public. The bill passed 55-44 in the House of Delegates on Feb. 4.
In Virginia, the law lets police and prosecutors decide on whether to release criminal investigative files, and law enforcement agencies have overwhelmingly chosen to withhold these records. That would end if the bill becomes law.
Advocates for the bill say changing the law would not only lead to more transparency but would also help exonerate anyone who has been wrongly convicted of a crime, ensure fairness in investigations of police killings, and help deliver justice for families who lost loved ones due to crimes. The bill’s sponsor, Del. Chris Hurst, said this would be a major reform for the Freedom of Information Act.
“As a former journalist, I never in a million years thought this is something that would be considered in Virginia,” he said. “The impact it will have is going to be tremendous.”
Hurst said the bill has cleared its largest hurdle but still needs work. He is not satisfied with the version of the bill that advanced out of committee, but he said he will try to convince fellow lawmakers to amend it before the final vote.
The bill was considered last fall during a special session, but the Senate asked the Virginia Freedom of Information Advisory Council to study it and report back. Hurst said the latest bill adopted similar language used in the federal Freedom of Information Act.
The bill now has the backing of the Virginia FOIA Council, the Virginia Coalition for Open Government, and the Innocence Project, a nonprofit legal organization committed to exonerating those who have been wrongly convicted.
But it faces opposition from the Virginia Association of Chiefs of Police, the Virginia Sheriffs’ Association and prosecutors.
Wise County and Norton’s Commonwealth’s Attorney Chuck Slemp, who spoke on behalf of Virginia Association of Commonwealth Attorneys, said the group opposed the part of the bill that requires prosecutors to go to court to claim an exemption to withhold information in accordance with public records laws. He also shared concerns about the amount of time and resources that would be required to comply with the requests.
“Having the judiciary direct the executive is a bad idea,” Slemp said.
Representatives for the Virginia Sheriffs’ Association and the Virginia Association of Chiefs of Police & Foundation shared concerns that confidential sources would be revealed, however, the proposed bill does not require this.
At the urging of Slemp and Arlington County and Falls Church’s Commonwealth’s Attorney Parisa Dehghani-Tafti — who is the former legal director for the Mid-Atlantic Innocence Project — the Senate committee made a few changes to the bill on Wednesday. In its present form, it would allow officials to take 120 work days to respond to requests for criminal investigation records. This tweak is not supported by Hurst or Megan Rhyne, the executive director of the the Coalition for Open Government. Both hope it will be removed.
The Innocence Project said police regularly deny requests from the organization for access to criminal investigative files that could provide critical evidence to overturn wrongful convictions.
“The proposal balances the public’s right to know with protections for ongoing investigations, privacy and safety,” said Elizabeth Powers, a policy advocate for the Innocence Project.
Two loved ones of the 12 victims who were fatally shot during the 2019 Virginia Beach mass shooting told the Senate committee that they have also been blocked from records related to the criminal investigation.
Jason Nixon, whose wife, Kate Nixon, died during the shooting, and Debbie Borato, who lost her sister Missy Langer, said they would like to evaluate the police department’s investigation.
“We are being traumatized and tortured every day by the city because we have no information about how our loved ones passed,” Nixon said. “We are not asking for anything special. We are asking to be treated fairly.”
Hurst said he has a lot of sympathy for the families impacted by the Virginia Beach mass shooting because he too knows what it feels like to lose a loved one to a senseless shooting. In 2015, Roanoke TV cameraman Adam Ward and reporter Alison Parker, who was Hurst’s girlfriend, were shot and killed on live television. Hurst said police chose to answer his questions about the investigation and treated him well.
He said it is unfair to leave it up to law enforcement agencies on what is revealed about investigations after they are completed.
“There are a lot of people hurting from this current policy, and I don’t want them hurting anymore,” he said.
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