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Legislature passes bill to close off many police records to the public and press

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Del. Rob Bell (left), R-Albemarle, and Sen. Scott Surovell, D-Fairfax, spoke at the Capitol on Friday. The legislature passed Bell’s bill to shift FOIA back to allowing police to withhold all records from the press and public in inactive investigations.

Despite a lack of any unintended consequences, the General Assembly passed a bill Saturday to largely undo a 2021 law opening up more police records to the public and press.

Two lawmakers who opposed the bill said it would hinder the ability of the press to investigate crime and police misconduct.

Debate over the legislation this year was riddled with misinformation, and several lawmakers acknowledged during the process that they misunderstood the Virginia Freedom of Information Act.

The bill relates to criminal files in closed cases in which release of the records would not hinder any potential prosecution.

Last year, after study, the legislature changed how police and commonwealth’s attorneys handle such records.

The FOIA had given them discretion over whether to release the records, and they generally withheld even closed-case records from the public and press. The 2021 law required the records to be released, but with numerous exceptions. Photos of a victim cannot be released, and police can withhold records that would identify a confidential source or records that would constitute an unwarranted invasion of personal privacy.

Some lawmakers during hearings on the bill this year falsely claimed anyone could get the records of a confidential source, and said disgusting photos of victims could be released under current law even though that’s not possible.

Lawmakers also heard from families of two college students who had been murdered, who feared that new records could be released under the 2021 law and that release would traumatize their families.

But there was no actual example of any sensitive records being released in the eight months since the 2021 law has been in effect. A TV production company asked Albemarle County police for records in the murder cases, but dropped the request in December after police demanded more than $76,000 to even begin examining which records could be released.

In a suicide case in Charlottesville, police responded to a FOIA request by redacting nearly all the information, citing the privacy provision of the 2021 law. That’s evidence that even under the 2021 change, police are still withholding records in closed cases.

The bill’s backers included the Virginia Association of Commonwealth’s Attorneys, which presented no evidence this year that any sensitive records had been released.

Both chambers on Saturday passed House Bill 734 from Del. Rob Bell, R-Albemarle, which shifts FOIA back to allowing police and prosecutors to withhold all records from the press and public in inactive investigations. Police and prosecutors would be required under the new law to provide records to family members of homicide victims and to lawyers doing post-conviction work. The bill goes to Gov. Glenn Youngkin.

The GOP-controlled House voted 55-39 for the bill. The Democratic-controlled Senate voted 25-15 for the bill after six Democrats joined Republicans.

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Republicans and some Democrats who backed the legislation did not hide their desire to allow police and prosecutors to withhold records in the closed cases.

“We say as a policy decision that everybody just doesn’t need to see the details in that closed criminal file,” said Sen. Richard Stuart, R-King George.

Sen. Adam Ebbin, D-Alexandria, asked what harm had happened under the 2021 law that justified its essential repeal. He noted the 2021 law has victim protections that are being used by police, and said prosecutors had been unable to illustrate any harm to anyone that happened under existing FOIA.

“We should give the law a chance to work and stay in the company of states as diverse as Tennessee and Connecticut that allow access to the closed investigative files in the hands of the police and prosecutors,” Ebbin said.

He gave an example of what will happen under the new legislation: If the press wants to investigate a “bad apple” police officer by requesting files on other cases on which the officer worked, police and prosecutors will withhold those files.

Sen. Scott Surovell, D-Fairfax, said it was unfortunate that the Senate went along.

“There is a way to address the concerns of these victims without completely undoing what we did last year,” he said.

Del. Danica Roem, D-Prince William, a former newspaper reporter, asked Bell, the bill sponsor, about the balance between protecting victims and allowing press access.

She said the bill takes away the ability of reporters to do their jobs.

In his response, Bell misgendered her, calling her “the gentleman.”

“Excuse me. It’s delegate,” she said.

Speaker Todd Gilbert instructed Bell: “You’d say ‘to the delegate.’ “

“I would say to the delegate,” Bell said. “I’m sorry. I — whatever I said.” He then referred to Roem as “Ms. Roem and “the gentlelady,” and said crime victims are terrified that information about their loved ones will make it onto the internet.

“This was our — my — best effort to try to find the right place for that line,” Bell said.

The Senate Democrats who voted for the bill were John Bell of Loudoun, George Barker of Fairfax, Lynwood Lewis of Accomack, Dave Marsden of Fairfax, Jeremy McPike of Prince William and Creigh Deeds of Bath.

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