A Virginia subcommittee is poring over language specifics for legislation that would make certain police records subject to Freedom of Information Act requests.
House Bill 5090 would allow open access to criminal investigative files unless a judge rules the release of the files would jeopardize an ongoing investigation or cause other harm, such as privacy concerns about victims. Current state law allows police departments to hold onto these files and grants them significant discretion over what documents are released to the public.
The bill went before a subcommittee of the Virginia Freedom of Information Advisory Council on Wednesday, but it did not receive a vote after some members suggested changes to the language.
The current language in the bill says police departments would have to show judges a preponderance of evidence that releasing the information “would” cause one of the harms listed. Some subcommittee members cautioned this could be too high a burden of proof. Some members suggested the language should require police departments to show with a preponderance of evidence that the release “could reasonably” cause these harms for the judge to deny access to the records.
Committee members said they were unsure how courts would interpret these words and the chairperson, Del. Marcus Simon, D-Falls Church, urged members to work on establishing a consensus on the language so they can send a cleaner bill to the full committee, rather than forcing the full committee to work through these language concerns.
The bill’s sponsor, Del. Chris Hurst, D-Blacksburg, defended the original language because it would establish more transparency and cautioned that state courts could grant too much discretion to police departments if they only have to demonstrate that it “could reasonably” cause these harms.
The subcommittee is expected to adopt the bill in some form once the language concerns are hashed out. Former newspaper executive Marisa Porto, who serves on the committee, said access to this information would be useful for news reports, general reports, closure for victims and movements that seek to hold police accountable, such as Black Lives Matter.
“Having this kind of transparency is essential for a good functioning government and for the citizens to better understand and get a trust of the government,” Porto said.
The legislation in its current form passed the House last month during a special session that dealt with the budget, COVID-19-related bills and criminal justice reform. It stalled in a Senate committee that voted to send it to the FOIA Advisory Council for review.
