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2022 SESSION

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22100814D
HOUSE BILL NO. 734 Offered January 12, 2022 Prefiled January 11, 2022 A BILL to amend and reenact § 2.2-3706.1 of the Code of Virginia, relating to the Virginia Freedom of Information Act; disclosure of certain criminal records. ---------- Patron-- Bell ---------- Referred to Committee on General Laws ----------

Be it enacted by the General Assembly of Virginia:

1. That § 2.2-3706.1 of the Code of Virginia is amended and reenacted as follows:

§ 2.2-3706.1. Disclosure of law-enforcement records; criminal incident information and certain criminal investigative files; limitations.

A. For purposes of this section:

"Criminal investigative files" means 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, other than criminal incident information subject to disclosure in accordance with subsection B.

"Immediate family" means the decedent's personal representative or, if no personal representative has qualified, the decedent's next of kin in order of intestate succession as set forth in § 64.2-200.

"Ongoing" refers to a case in which the prosecution has not been finally adjudicated, the investigation continues to gather evidence for a possible future criminal case, and such case would be jeopardized by the premature release of evidence.

B. All public bodies engaged in criminal law-enforcement activities shall provide the following records and information when requested in accordance with the provisions of this chapter:

1. Criminal regarding criminal incident information relating to felony offenses contained in any report, notes, electronic communication, or other document, including filings through an incident-based reporting system, which shall include:

a. 1. A general description of the criminal activity reported;

b. 2. The date and time the alleged crime was committed;

c. 3. The general location where the alleged crime was committed;

d. 4. The identity of the investigating officer or other point of contact;

e. 5. A description of any injuries suffered or property damaged or stolen; and

f. 6. Any diagrams related to the alleged crime or the location where the alleged crime was committed, except that any diagrams described in subdivision 14 of § 2.2-3705.2 and information therein shall be excluded from mandatory disclosure, but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law.

A verbal response as agreed to by the requester and the public body is sufficient to satisfy the requirements of this subdivision 1; and subsection.

2. C. Criminal investigative files 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 D; however such records shall be disclosed, by request, to (i) the victim, (ii) members of the victim's immediate family, if the victim is deceased, and (iii) the parent or guardian of the victim, if the victim is a minor.

Criminal investigative files, defined as any documents and information, including complaints, court orders, memoranda, notes, initial incident reports, filings through any incident-based reporting system, diagrams, maps, photographs, correspondence, reports, witness statements, or evidence, relating to a criminal investigation or proceeding that is not ongoing.

C. The provisions of subsection B 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.

D. No criminal investigative file or portion thereof shall be disclosed to any requester except (i) the victim, (ii) members of the victim's immediate family, if the victim is deceased, or (iii) the parent or guardian of the victim, if the victim is a minor, unless the public body has notified any such individual of the request for such information. Upon notification of the request, any individual listed in clause (i), (ii), or (iii) may file in an appropriate court a petition for an injunction to prevent the disclosure of the records or other physical evidence. The period within which the public body shall respond pursuant to § 2.2-3704 shall be tolled for the amount of time that elapses between the public body's receipt of actual notice of the filing of the petition and any resulting disposition by the court.

In making its determination, a court shall consider the following:

1. If disclosure of the public records would constitute an unwarranted invasion of personal privacy;

2. If disclosure of the public records would endanger the life or physical safety of any individual;

3. If disclosure of the public records would subject the victim, members of the victim's immediate family, or the parent or guardian of the victim to severe mental or emotional distress;

4. Who the requester is and for what purpose the public records are requested; and

5. Any other factor or information deemed by the court to be relevant.

If the court grants an injunction, the public body shall be prohibited from disclosing the public records.

E. With the exception of transcripts of recorded interviews between a victim and law enforcement, nothing in this section shall be construed to allow for the disclosure of any photographic, audio, video, or other record depicting a victim or allowing for a victim to be readily identified to anyone except (i) the victim, (ii) members of the victim's immediate family, if the victim is deceased, or (iii) the victim's parent or guardian, if the victim is a minor.

F. Nothing in this section shall prohibit the disclosure of current anonymized, aggregate location and demographic data collected pursuant to § 52-30.2 or similar data documenting law-enforcement officer encounters with members of the public.

No photographic, audio, video, or other record depicting a victim or allowing for a victim to be readily identified, except for transcripts of recorded interviews between a victim and law enforcement, shall be released pursuant to subdivision B 2 to anyone except (i) the victim; (ii) members of the immediate family of the victim, if the victim is deceased; or (iii) the parent or guardian of the victim, if the victim is a minor.

E. G. 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, as defined in subsection B, shall control.