Slide 1: Criminal and Other Law Enforcement
Records.
Virginia Freedom of Information Act
Virginia Freedom of Information Advisory
Council
http://foiacouncil.dls.virginia.gov/
(804) 698-1810
FOIA Requests Generally (Policy, Request
& Response Procedures)
Criminal Records (Conflict Resolution,
Mandatory Release, Discretionary Release, Prohibitions, Criminal Investigative
Files)
Noncriminal Records
Other Types of Law Enforcement Records
Other FOIA Exemptions
Prohibitions outside of FOIA
Introduction to Records & FOIA
FOIA policy - § 2.2-3700
Definition of public record - § 2.2-3701
Requesting Records
Who and how? - § 2.2-3704 (A) and (B)
Responding to Requests
Five-working days - § 2.2-3704 (B)
Five responses - § 2.2-3704 (B)
For criminal investigative files pursuant
to § 2.2-3706.1, 60 work days in which to provide one of the five preceding
responses - § 2.2-3704 (B)
Charges - § 2.2-3704 (F), (H), and (I)
Mandatory release - §§ 2.2-3706 (A) and
2.2-3706.1 (B)
Discretionary release - §§ 2.2-3706 (B)
Prohibitions - §§ 2.2-3706 (C)
Criminal Investigative Files (mixes
mandatory, discretionary, prohibitions, and additional procedures) §§
2.2-3706 (B)(1) and 2.2-3706.1 (A, C through F)
§ 2.2-3706 (F): Conflict resolution. In
the event of conflict between this section as it relates to requests made under
this section and other provisions of law, this section shall control. [NOTE:
Applies to various types of criminal and other law-enforcement records]
§ 2.2-3706.1 (I): In the event of a
conflict between this section as it relates to requests made under this section
and other provisions of law, the other provisions of law, including court
sealing orders, that restrict disclosure of criminal investigative files shall
control. [NOTE: Applies to criminal investigative files only]
Adult mugshots, except when necessary to
avoid jeopardizing an investigation in felony cases until such time as the
release of the photograph will no longer jeopardize the investigation- §
2.2-3706 (A)(1)
Adult arrestee identity, status of charge
and arrest - § 2.2-3706 (A)(2)
Completed unattended death investigations
- § 2.2-3706 (A)(3)
Criminal incident information - §
2.2-3706.1 (B)
1.
A general description of the criminal activity reported;
2.
The date and time the alleged crime was committed;
3.
The general location where the alleged crime was committed;
4.
The identity of the investigating officer or other point of contact; and
5.
A description of any injuries suffered or property damaged or stolen.
Reports submitted in confidence - §
2.2-3706 (B)(2)
Records relating to imprisonment - §
2.2-3706 (B)(4)
Specific tactical plans - § 2.2-3706
(B)(5)
Records of adult persons under
investigation or supervision re: pretrial, probation, or parole services - §
2.2-3706 (B)(6)
Undercover operations and protective
details - § 2.2-3706 (B)(8)
Identity of any victim, witness, or
undercover officer, or investigative techniques or procedures - § 2.2-3706
(B)(10)
Records of the Sex Offender and Crimes
Against Minors Registry - § 2.2-3706 (B)(11)
The identity of any individual providing
information about a crime or criminal activity under a promise of anonymity
shall not be disclosed. (confidential informants,
Crime Stoppers, etc.)
Effective July 1, 2026, will add expunged
and sealed records as follows:
Any record that has been expunged pursuant
to § 19.2-392.2, unless dissemination is authorized pursuant to § 19.2-392.3 or
19.2-392.3:1; and
Any record that has been sealed pursuant
to § 19.2-392.6:1, 19.2-392.7, 19.2-392.8, 19.2-392.10, 19.2-392.11,
19.2-392.12, 19.2-392.12:1, or 19.2-392.17, unless dissemination is authorized
pursuant to § 19.2-392.13 and the rules and regulations adopted pursuant to §
9.1-128 and the procedures adopted pursuant to § 9.1-134.
Criminal investigative files that are not
ongoing, are required to be released to the following requesters, regardless of
whether any such person is a citizen of the Commonwealth:
(1) the victim;
(2) the victim's immediate family members,
if the victim is deceased and the immediate family member to which the records
are to be disclosed is not a person of interest or a suspect in the criminal
investigation or proceeding;
(3) the parent or guardian of the victim,
if the victim is a minor and the parent or guardian is not a person of interest
or a suspect in the criminal investigation or proceeding;
(4) an attorney representing a petitioner
in a petition for a writ of habeas corpus or writ of actual innocence pursuant
to Chapter 19.2 (§ 19.2-327.2 et seq.) of Title 19.2 or any other federal or
state post-conviction proceeding or pardon; and
(5) for the sole purpose of inspection at
the location where such records are maintained by the public body that is the
custodian of the records,
(i) an attorney
or his agent when such attorney is considering representing a petitioner in a
post-conviction proceeding or pardon,
(ii) an attorney who provides a sworn
declaration that the attorney has been retained by an individual for purposes
of pursuing a civil or criminal action and has a good faith basis to believe
that the records being requested are material to such action, or
(iii) a person who is proceeding pro se in
a petition for a writ of habeas corpus or writ of actual innocence pursuant to
Chapter 19.2 (§ 19.2-327.2 et seq.) of Title 19.2 or any other federal or state
post-conviction proceeding or pardon, who provides a sworn affidavit that the
records being requested are material to such action.
Additional procedures re: release under
clauses (4) and (5):
An attorney or his agent who is in receipt
of criminal investigative files or has inspected criminal investigative files
pursuant to subdivision 4 or 5 shall not release such criminal investigative files
or any information contained therein except as necessary to provide adequate
legal advice or representation to a person whom the attorney either represents
or is considering representing in a post-conviction proceeding or pardon or
represents in a civil or criminal action.
An attorney who is in receipt of criminal
investigative files pursuant to subdivision 4 shall return the criminal
investigative files to the public body that is the custodian of such records
within 90 days of a final determination of any writ of habeas corpus, writ of
actual innocence, or other federal or state post-conviction proceeding or
pardon or, if no petition for such writ or post-conviction proceeding or pardon
was filed, within six months of the attorney's receipt of the records.
No disclosure for the purpose of
inspection pursuant to clause (iii) of subdivision 5 shall be made unless an
appropriate circuit court has reviewed the affidavit provided and determined
the records requested are material to the action being pursued. The court shall
order the person not to disclose or otherwise release any information contained
in a criminal investigative file except as necessary for the pending action and
may include other conditions as appropriate.
2.2-3706 (B)(1): The following records are
excluded from the mandatory disclosure provisions of this chapter, but may be
disclosed by the custodian, in his discretion, except where such disclosure is
prohibited by law: Criminal investigative files, defined as any documents and
information, including complaints, court orders, memoranda, notes, diagrams,
maps, photographs, correspondence, reports, witness statements, and evidence,
relating to a criminal investigation or prosecution not required to be
disclosed in accordance with § 2.2-3706.1
2.2-3706.1 (C): Criminal investigative
files relating to an ongoing criminal investigation or proceeding are excluded
from the mandatory disclosure provisions of this chapter, but may be disclosed
by the custodian, in his discretion, except as provided in subsection E or
where such disclosure is prohibited by law.
2.2-3706.1 (D): Criminal investigative
files relating to a criminal investigation or proceeding that is not ongoing
are excluded from the mandatory disclosure provisions of this chapter, but may
be disclosed by the custodian, in his discretion, except as provided in
subsection E.
2.2-3706.1 (E) The provisions of
subsections C and D shall not apply if the release of such information:
1. Would interfere with a particular
ongoing criminal investigation or proceeding in a particularly identifiable
manner;
2. Would deprive a person of a right to a
fair trial or an impartial adjudication;
3. Would constitute an unwarranted
invasion of personal privacy;
4. Would disclose (i)
the identity of a confidential source or (ii) in the case of a record compiled
by a law-enforcement agency in the course of a criminal investigation,
information furnished only by a confidential source;
5. Would disclose law-enforcement
investigative techniques and procedures, if such disclosure could reasonably be
expected to risk circumvention of the law; or
6. Would endanger the life or physical
safety of any individual.
Nothing in this subsection shall be
construed to authorize the withholding of those portions of such information
that are unlikely to cause any effect listed herein.
Release under § 2.2-3706.1 (C) and (D) except clauses (D)(4)
and (D)(5)(i) [release to certain attorneys] - is
prohibited unless public body first:
Makes reasonable efforts to notify victim,
victims immediate family if victim deceased, or parents or guardians of victim
is a minor
And give those persons opportunity to file
petition for injunction against release
Person notified must file petition for
injunction in court within 14 days of receipt of notice
Public body shall not respond to the
request until at least 14 days has passed from the time notice was received by
an individual listed in clause (D)(5)(i), (ii), or
(iii) unless such individual has waived the 14-day period or at the request of
the victim's insurance company or attorney
Response time tolled pending the
notification process and any subsequent disposition by the court
No photographic, audio, video, or other
record depicting a victim or allowing for a victim to be readily identified
shall be released pursuant to subsection C or D to anyone except:
(i) the victim;
(ii) the victim's family representative,
if the victim is deceased and the family representative to which the records
are to be disclosed is not a person of interest or a suspect in the criminal
investigation or proceeding;
(iii) the victim's parent or guardian, if
the victim is a minor and the parent or guardian is not a person of interest or
a suspect in the criminal investigation or proceeding; or
(iv) the victim's
insurance company or attorney.
The rule - First responders (medical,
fire, and law enforcement) and call centers must disclose noncriminal records
Except may redact as follows:
Personal, medical, and financial
information
To protect safety or privacy
Of any person
Records relating to neighborhood watch
programs - § 2.2-3706 (B)(3)
Cell phone numbers (agency-issued) - §
2.2-3706 (B)(7)
Background investigations, allegations of wrongdoing
(internal affairs) - § 2.2-3706 (B)(9)
911 Tapes - § 2.2-3706 (E) subject to
FOIA (contents/context/CAD)
Dash and body camera videos depends on
what is shown
Dash cam video is usually in public place
Body cam video may be in public or private
places
Roster of vehicles release, except do
not have to ID undercover vehicles
Exemptions applicable to all public bodies
(personnel, contracts, attorney-client, procurement, etc.) - §§ 2.2-3705.1 and
2.2-3705.6 (3)
Public safety exemptions - § 2.2-3705.2
Access to computer or phone system - §
2.2-3705.2 (2)
Statewide Agencies Radio System (STARS) -
§ 2.2-3705.2 (10)
Various types of information that would
jeopardize safety or security if made public; homeland security notification
requirement - § 2.2-3705.2 (14)
Feuding neighbors exemption - §
2.2-3705.3 (8)
Fatality review teams exemption - §
2.2-3705.5 (7)
Social Security Numbers - §§ 2.2-3815 and
2.2-3816
Tax returns and related information §
58.1-3
Juvenile arrest and court records - §
16.1-301
Certain school records - § 22.1-287 et
seq. (K-12), § 23.1-405 (higher ed), federal Family
Educational Rights and Privacy Act (20 U.S.C. § 1232g)
Crime victim information - § 19.2-11.2
Certain records/reports submitted to
Department of State Police relating to ongoing criminal investigation - §
52-8.3
Criminal history record
information/juvenile record information - §§ 19.2-389 and 19.2-389.1
Automatic license plate reader recognition
systems - § 2.2-5517