This weekend, take a moment to let your Senator know that you oppose HB 734, which would roll back the law passed last year that provides a pathway to access some of the records contained within closed-case criminal investigative files. The bill will come up for a vote early next week.
Not sure what to say? Here's a quick primer:
HB 734 rolls back the law passed in 2021 (HB 2004) and enacted July 1, 2021, that created a new section of FOIA — § 2.2-3706.1 — to provide a pathway for the release of certain inactive criminal investigative files.
Berfore 2021, all criminal investigative files — whether open, closed, active, inactive — could be withheld in their entirety at the law enforcement agency’s discretion. The agencies didn’t even have to open the file; they could merely say they were exercising their discretion not to release them or anything in them.
Section 2.2-3706.1 now says they essentially have to open the file, look through the records in the file to see what may still be withheld but what else must be released. The section has many exemptions for the release, and early experience with the law has shown that these exemptions have been used, both frequently and quite expansively.
HB 734, even in its substitue form:
Eliminates definition of “ongoing,” meaning there is no longer a distinction between active or inactive files, so all files and everything in them can be withheld.
Secures access for victims or their families (if the victim is deceased) and to attorneys representing clients, but NO ONE else.
Everyone else has to ask for files that can only be released in police or prosecutors' discretion -- in other words, the way the law was prior to the creation of 2.2-3706.1
The single biggest justification being advanced by the bill's proponents is that it will protect victims. In doing so, the proponents have said it will protect them from the trauma of seeing photos of their loved ones on social media.
But...CURRENT LAW ALREADY SAYS THAT THOSE PHOTOS CANNOT BE RELEASED TO ANYONE BUT THE VICTIM/FAMILY.
The way this bill protects victims is by never letting anyone else ever see anything about their case.
And let there be no mistake: NOT ALL VICTIMS FEEL THE SAME WAY. Victims and their families testified in support of the change last year, knowing full well that not just they but anyone would be able to ask. They testified against HB 734 this year, even though it gives them exclusive rights of access. And Virginia victims rights groups in Virginia have not testified in support of HB 734.
The rest of the bill is about attorney access to files to represent their clients, how the attorneys have to give the files back to the prosecutors/police after they use them (!) and creating a cause of action for a victim to block release of files the police/prosecutors decide (in the extremely unlikely event) to release records in their discretion.
It is all so much window dressing for what is the very bottom line: This bill will once again allow police and prosecutors to keep virtually all of their case files hidden forever.
No matter the crime, no matter how old the case, no matter the interest in accountability, no matter the historical signicifcance.
No matter if you're an attorney not representing a client but maybe doing advocacy work, no matter if you're a reporter, no matter if you're a family member or close friend of a defendant or witness, no matter if you're a family member not caught in the definition of immediate family in the bill, no matter if you're a hitorian, researcher or writer, no matter if you're wondering why you got arrested but then the charges were dropped.
All of those people can make requests now -- and have been without the sky falling -- but WILL NOT BE ABLE TO if HB 734 passes.
Senators should defeat this bill on the floor.
In advance, thank you.
p.s. Read this story from last week and a follow up this week for more.