Why access to records must be part of the General Assembly’s criminal justice reform

August 17, 2020 12:01 am

Police on Capitol Square at dawn stand alongside fencing set up to corral attendees of a large pro-gun rally in January. (Ned Oliver/Virginia Mercury)

I’m no expert on the art of policing. Beyond my personal opinions, I couldn’t tell you when the use of force is or isn’t appropriate, or to what extent police officers should be immune from lawsuits for their actions. I wouldn’t know how much militarized equipment is necessary or how much (and what kind of) training officers should receive.

These issues will be debated and hashed out in the General Assembly’s special session, Aug. 18, and into the 2021 regular session. But they’ll be worked out without me.

That doesn’t mean I’ll be sitting on the sidelines for either session, though, because I do have plenty of professional opinions about the one thing that underlies any proposed reform or any reversion to the status quo. And that is transparency.

All too often, policy is debated by anecdote: This person or these people have had this experience. Anecdotes are powerful tools for demonstrating real-world problems, real-world impacts, but they are but one part of the story.

The rest of the story lies within the records maintained by local law enforcement agencies, by state criminal justice departments, by prosecutors and courts — the whole criminal justice system.

In records there is data. There are numbers of how many this, what kind of that. There are complaints and how those complaints are resolved. There are certificates, there are analyses, there are policies. Financial records are detailing who bought what and for how much. There are records when an officer is investigated. There are records when the officer is investigating a suspect. There are statistics that tell a long-range story, and there are reports about something that happened just yesterday.

These records have been generated, created and maintained because they have value to the agency that has them. They reflect the work of the law enforcement agency or state department.

They have value to the public, too. We whose taxes fund these offices. We who have given our consent to be governed. And we who are impacted by that governance. But these records have little value to us as a means of oversight if we cannot access them.

There are many places throughout the Code of Virginia that either mandate the release of certain information or prohibit the same. But access to most of the records that tell the story of any given agency, individual or incident are governed by the Freedom of Information Act, and within FOIA there is a virtual black-box exemption for law enforcement records: Section 2.2-3706.

This summer, I have been talking with several legislators and advocacy groups about which records should be made available that can be withheld under current law (though most of §2.2-3706 does not require records to be withheld, they almost always are).

Throughout these discussions, it’s been clear that there are many different interests in and need for law enforcement records.

The news media often needs the most up to date information about crimes that have been committed in their coverage area so they can keep their communities informed.

Advocacy groups may need access to aggregate data that demonstrate patterns.

Suspects, defendants and their family or attorneys need access to records related to their specific cases to pursue defenses, claims of actual innocence or civil remedies.

Researchers, social scientists, historians and even documentarians may need a cross-section of all of these records as they try to compare data to other times or places, or to suss out the practices of particular officers, expert witnesses or prosecutors.

And law enforcement. They too have an interest in transparency. The records can refute a claim of malfeasance or prove that decisive action was taken when things went wrong. They can corroborate competence or adherence to policy. They can tell the story of the hard work that went into solving or pursuing a case.

Attempts to open up the records relating to policing, prosecuting and punishing people have always been fought under a doomsday scenario that sees access to records and the information contained in them as a tool for new or additional wrongdoing. Records will be manipulated or altered. Records will be used to harm officers. Records will be quoted out of context. Or, the public doesn’t have the ability to understand what’s in the records.

But make no mistake: plenty of other states around the country — from “red” Louisiana to “blue” Maryland — allow access to a far larger pool of criminal justice-related records without compromising the integrity of the records or the safety of law enforcement personnel.

Legislators returning for the special session should keep these thoughts about transparency’s value in mind as they consider a host of criminal justice reform bills. They must remember that the new laws they pass are of limited use without the means to monitor them.

Transparency is really the most radical reform of all.

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Megan Rhyne
Megan Rhyne

Megan Rhyne is executive director of the Virginia Coalition for Open Government, a nonprofit alliance formed to promote expanded access to government records, meetings and other proceedings at the state and local level.