Police and Investigative Agencies (Confidentiality of Investigatitive Files)

The Court of Appeals of Virginia rules -- in an unpublished opinion -- that the City of Norfolk cannot withhold records related to a juvenile crime victim under §16.1-301, which, the court says, only applies to the withholding of records related to juvenile defendants.

"The Virginia Freedom of Information Act requires local police departments to release footage from body-worn and/or dashboard cameras related to officer-involved shootings unless an exception applies." This opinion isn't novel, but it does review the issue in part under the new §2.2-3706.1.
 

The Parole Board is largely excepted from FOIA, but that exception only applies to the Board itself. However, the Office of the State Inspector General (OSIG) may withhold certain records it receives from the Board pursuant to the administrative investigation exemption at subdivision 7 of § 2.2-3705.3. The same exemption requires that OSIG must release records of completed investigations in redacted form. FOIA does not prohibit the release of OSIG reports by members of the General Assembly, but it would be beyond the statutory authority of this office to opine whether other laws outside of FOIA may act as such prohibitions on voluntary disclosure.

The records exclusion at subdivision 1 of § 2.2-3705.3 exempts from mandatory disclosure "information relating to investigations of applicants for licenses and permits, and of all licensees and permittees, made by or submitted to" certain public bodies. That language includes the application and materials submitted. Additionally, unlike several other exemptions in the same section, the language of this exemption does not limit its application to active investigations nor does it require the disclosure of inactive or completed reports.

Body worn and dashboard video recordings made by law enforcement are public records subject to FOIA. The application of exemptions from mandatory disclosure depends on the contents of the video. Duty to redact is in question following Virginia Supreme Court ruling in 2015.

In a proceeding under the Virginia Freedom of Information Act, to obtain a copy of a suicide note contained in a criminal investigative file opened by a sheriff’s office under its lawful authority to investigate the unexpected and unattended death of a senior United States Air Force official, the sheriff had the discretion, but not the duty, to disclose documents within this file and eventual closure of the file did not change its character. Nor did the suicide note, standing alone, constitute a compilation subject to disclosure under Code § 15.2-1722(B). The judgment of the circuit court denying a writ of mandamus to compel disclosure of this document is affirmed.

"For the foregoing reasons, it is my opinion that local law enforcement agencies must disclose adult arrestee photographs pursuant to a valid FOIA request if they are contained in a database maintained by the local law enforcement agency, regardless of whether the defendant is still incarcerated or has been released, unless disclosing them will jeopardize a felony investigation. However, photographs may not be drawn from the Central Criminal Records Exchange for disclosure at any time to comply with a FOIA request.""For the foregoing reasons, it is my opinion that local law enforcement agencies must disclose adult arrestee photographs pursuant to a valid FOIA request if they are contained in a database maintained by the local law enforcement agency, regardless of whether the defendant is still incarcerated or has been released, unless disclosing them will jeopardize a felony investigation. However, photographs may not be drawn from the Central Criminal Records Exchange for disclosure at any time to comply with a FOIA request."

Suicide reports and related records may be withheld as criminal investigative files because suicide remains a crime in Virginia. To the extent it conflicts with this opinion, AO-10-03 is hereby rescinded.

911 records are public records under FOIA. Whether any exemptions apply to 911 records must be determined on a case-by-case basis.