Law Enforcement Records
Virginia Freedom of Information Act
Virginia Freedom of Information Advisory Council
(804) 698-1810
Roadmap
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
FOIA Requests Generally
Introduction to Records & FOIA
FOIA policy - § 2.2-3700
Definition of public records - §
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 working days in which to provide one of the five
preceding responses - § 2.2-3704 (B)
Charges - § 2.2-3704 (F), (H), and
(I)
FOIA & Criminal Records
§§ 2.2-3706 and 2.2-3706.1
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)
Conflict Resolution Rules
§ 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 that restrict disclosure of criminal
investigative files shall control. [NOTE: Applies to criminal investigative
files only]
Criminal Records Mandatory Release
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.
Criminal Records Discretionary Release
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)
Criminal Records Prohibited from Release
§ § 2.2-3706 (C) and 2.2-3706.1 (J)
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,
release of expunged and sealed records prohibited 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
Mandatory Release § 2.2-3706.1 (D)
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
Criminal Investigative Files
Mandatory Release (continued)
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.
Criminal Investigative Files -
Mandatory Release (continued)
Additional procedures re: release under subdivisions 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.
Criminal Investigative Files
Discretionary Release (Ongoing Investigations)
§§ 2.2-3706 (B)(1) and 2.2-3706.1 (C)
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.
Criminal Investigative Files
Discretionary Release (Not Ongoing) § 2.2-3706.1 (D)
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.
Criminal Investigative Files
Exceptions to Release § 2.2-3706.1 (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.
Criminal Investigative Files
Prohibitions (Notice & Injunction)
§ 2.2-3706.1 (F)
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 if 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
Criminal Investigative Files
Prohibitions (Victim ID) § 2.2-3706.1 (G)
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.
Noncriminal Records
§ 2.2-3706 (D)
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
Other Records of Law
Enforcement Agencies
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
Other FOIA Exemptions
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)
Prohibitions Other Provisions
Outside of FOIA
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 - § 2.2-5517Q & A