By Peter Dujardin
Daily Press (Newport News, Va.)
RICHMOND, Va. — When you ask for police records in Virginia — either from three weeks ago or 30 years ago — the response is likely to be the same.
“That’s part of a criminal investigative file,” police departments and sheriff’s offices will tell you.
In other words, you can’t have it.
The criminal investigations exemption to the Virginia Freedom of Information Act is so broad that it protects not only active and ongoing cases from mandatory release, but also long-forgotten cases collecting dust in the file room.
Police and sheriff’s offices statewide widely use the exemption to withhold basic police reports, including the officer narratives of recent crimes.
And they sometimes use it to deny public access to past files even if they find no crime has been committed.
When a homeless man sleeping at the Virginia Beach oceanfront was run over by a city dump truck in 2010, for example, investigators ruled the death accidental — but the city still cited the “criminal investigations” exemption to deny access to the 911 calls and other records.
A push to change state law
Legislation is now being considered at the General Assembly that would change all that.
Sponsored by Del. Chris D. Hurst, D-Blacksburg, and other lawmakers, the bill would mandate that “criminal investigative files” become public when a court case is over — or when it’s been at least three years since police and prosecutors decided not to pursue charges.
“We, as the public, consent to be governed and to be regulated in some part by the police,” Hurst said. “But that ’consent contract’ is really being debated right now. And so in an effort to try to restore that contract, I think it’s important for citizens involved in cases to really feel like they can get access to the real information.”
The bill is making headway in the House of Delegates — passing committees on General Laws and Courts of Justice before passing the Appropriations Committee Friday on a 13-9 vote. It could be on the House floor this week before moving over to the Senate.
The legislation’s supporters point out that although police, sheriff’s offices and prosecutors have the discretion now to release investigative files, they hardly ever do.
Since it can be time-consuming to sift through the files to decide whether to release them, the standard practice is usually to deny the requests altogether. The bill’s supporters say that hampers independent examinations of cases shielded in perpetuity.
“Having some access to those completed and inactive files means that we will have better oversight over law enforcement and prosecutorial decisions,” said Megan Rhyne, the executive director of the Virginia Coalition for Open Government, which is strongly backing the bill.
Crucial details in the records
The police and prosecutor’s files in criminal cases can be extensive — sometimes running thousands of pages and several boxes — and are far more extensive than court files.
They contain detailed statements from witnesses, victims and family members; body camera footage; crime scene photos and videos; videotaped statements by defendants; internal memos between officers and prosecutors; lab reports regarding blood, guns and sexual assault; and much more.
The Innocence Project, a nonprofit organization that helps to free the wrongfully convicted, says having access to the old case files is crucial to knowing how charging decisions were made.
“It is very hard to overturn wrongful convictions if you don’t have information about the case,” said Michelle Feldman, an Innocence Project official working to change Virginia’s law. “For victims and their families, it would ensure they have answers.”
The Norfolk Four — four Navy sailors convicted in a 1997 rape and murder despite DNA evidence that excluded them — is a case in point.
If the file were open, the bill’s supporters contend, it could have been easier to prove that a Norfolk police detective coerced the men’s confessions. (The men were ultimately pardoned in 2017).
In 2013, a federal judge reversed the convictions and life sentences in a 1991 Newport News capital murder case because an exculpatory photograph found deep within the police’s files file was never shared with his trial attorney 19 years earlier.
The Polaroid picture showed David Wayne Boyce with short hair on the day of the crime, in contrast to the “long-haired man” who prosecutors at the 1991 trial said did the killing. The picture was found only after Boyce’s lawyers got access to the police file by way of 2010 court order.
Prosecutors didn’t re-try Boyce, who was released from custody and now lives in the Richmond area.
The pending legislation would also allow relatives to learn more about what happened to their loved ones, or to get some tangible evidence from the case.
Take the Virginia Beach mass shooting in May 2019, where a city engineer shot and killed 12 people in the city’s Municipal Building.
Jason Nixon, the widow of Kate Nixon, a city engineer killed in the shooting, said that access to the underlying investigative files would answer the questions he still has about what happened to his wife and the other victims that day.
“Why can strangers know the intimate details of my wife’s death and I can’t?” he asked, referring to the detectives. “The police don’t want people knowing the truth.”
Bill’s opponents voice concerns
But the Virginia Association of Chiefs of Police and state law enforcement agencies oppose the legislation.
They contend that police and prosecutors should be the ones deciding whether to release sensitive crime scene photographs, witness statements and other records.
“We oppose efforts to make criminal investigative files public without law enforcement’s discretion,” said Dana G. Schrad, the association’s executive director.
A key goal, Schrad said, should be “to protect sensitive information from release that would compromise pending or lateral investigations, or would further traumatize victims and their families.”
Police also say that information from past case files can be used to solve other crimes.
Nate Green, the Commonwealth’s Attorney for Williamsburg and James City County, said he doesn’t oppose the spirit of the legislation, and that police and prosecutors should have done better than always flatly denying requests for the files.
But mandating widespread public access isn’t the answer either, he said.
Take, for example, the hospital pictures used to document injuries from a sexual assault. With the new legislation, he said, a convicted rapist would be able to file an open records request to get those pictures “as a souvenir or some sort of trophy” of his crime.
“It opens up just a huge box of problems that I don’t think that they were trying to open at all,” Green said, saying the bill needs more discussion among the various stakeholders.
“I’m not sure that this is one of those things that needed to be done fast,” he said. “I think it could have been done with a little bit more full circle look at it, as opposed to, ’Hey, let’s get this done as quickly as possible.’”
Some are also concerned about releasing graphic photographs used to document bloody crime scenes.
The Virginia State Police, for example, have long turned down requests for the investigative records from the Virginia Tech massacre, where a gunman shot 31 people to death in 2007.
During discussion on the bill in the House Appropriations Committee on Friday, Del. Emily M. Brewer, R-Smithfield, asked whether sensitive photographs can be shielded from release.
“When we release photos like this, it can be traumatizing,” she said. “Has the patron given thought to how this might affect victims’ families and how he would plan to address that?”
Hurst, the bill’s lead sponsor, told Brewer he was adding language to the bill on that very point.
“We are working to have language that really explicitly protects victims and their next of kin from any unwarranted invasion of their privacy,” he told her.
Concern over witness statements
Witnesses statements in the case files are another big cause for concern.
Though the names of witnesses can be redacted from the records, the statements themselves — sometimes telling police detectives about such things as others’ drug use, medical problems, past crimes and extramarital affairs — would become public under the bill, whether verified or not.
“There’s a lot of personal information in there that I don’t think the public needs to know,” one local homicide detective told the Daily Press. “They talk of things that the wife was involved in — the husband, boyfriend and girlfriend, whatever — that are personal in nature.”
Schrad, of the police chief’s association, contended that some information from the files “may disparage an individual unnecessarily.”
“This is particularly true in sexual assault and domestic violence cases, where the character and personal histories of the parties may be part of the background in the file, but only to help narrow and focus the investigation,” she said.
But Rhyne, of the open government coalition, contends that sensitive information in the witness statements is no reason to shield them.
“The files document the work of the police,” she said. “The work of the police is interviewing witnesses about what they saw and what they know. And part of oversight of the police is knowing who they talk to, how they approach the case, whether they exerted undue influence, and whether they followed up on leads.”
Hurst said he’s working to add a line in the legislation saying that police and prosecutors can ask a judge to shield records if releasing them could jeopardize an ongoing investigation, threaten someone’s safety, or cause a person to flee.
Slow it down?
Green, the Williamsburg prosecutor, said that while the bill’s backers have noble goals, more time is needed to “balance” all the competing interests at play.
“I feel like we can find a balance,” he said, that gives the public — and groups seeking to overturn wrongful convictions — what they need, “but where the cost isn’t the victims’ dignity and privacy.”
©2020 the Daily Press (Newport News, Va.)