A storm passes over the Capitol. (Ned Oliver/Virginia Mercury – Sept. 11, 2018)
A controversial bill to largely undo a new criminal-justice transparency law in Virginia will be worked out behind closed doors in the General Assembly session’s last week.
The Democratic-led state Senate voted 26-13 Tuesday to send the legislation to a conference committee, a small panel of legislators that will work out its details and present a final bill for votes later this week.
The new law that’s now in jeopardy requires law enforcement agencies to disclose some closed investigative files under the Virginia Freedom of Information Act. Officials routinely denied access to those records before the law was changed under Democratic control last year following a study by the FOIA Advisory Council.
The legislation filed this year would restrict that newly granted access only to victims’ immediate families and lawyers doing post-conviction work, a sharp reversal proponents say would prevent grisly details or sensitive information about a victim from becoming entertainment fodder. However, open-government advocates say it guts a law hailed as a rare victory on FOIA policy, one that already includes several exemptions to protect victims’ privacy.
Tuesday’s vote to keep the bill moving, with seven Democrats joining the chamber’s 19 Republicans, suggests it’s likely to pass in some form.
“I’m grateful that it is going to conference so we can continue to advance our arguments about why this bill cuts too broadly away from accountability of police and prosecutors,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government.
The bill was also opposed by the Virginia Press Association and the Innocence Project at the University of Virginia School of Law. It was supported by law enforcement groups like the Virginia Association of Commonwealth’s Attorneys and the Virginia Sheriffs’ Association.
Sen. Scott Surovell, D-Fairfax, made the move to send the proposal to a conference committee for further tweaks. He said he fully expects a bill to emerge but has concerns about how a strict anti-disclosure law would apply to police shootings where there could be “competing narratives” about whether the person shot was a victim or a perpetrator.
“I think a lot of times law enforcement feels like they’re the victim,” Surovell said.
To force more deliberation on the legislation with the Republican-led House of Delegates, the Senate added a re-enactment clause requiring the bill to pass again next year. But senators explained that was simply a way to buy time for more debate, not necessarily a substantive change.
The broad disclosure law in effect now was pitched as a way to empower crime victims and their families to find out more about how authorities handled their case and what was uncovered in publicly funded investigations. In a committee hearing earlier this month, Jason Nixon, whose wife was among the dozen people killed in the 2019 municipal building mass shooting in Virginia Beach, urged lawmakers not to undo a law he fought for as a way to force more accountability from local officials who he said weren’t giving satisfactory answers about what happened to his wife.
“I don’t like the fact that you guys are changing things on the fly,” Nixon said, noting that the pending legislation would give no recourse to an unmarried person trying to learn more about the murder of a longtime romantic partner.
Open-government advocates say one of the main arguments for restricting access to those records, keeping gruesome photos off the Internet, isn’t relevant because photos of crime victims already cannot be disclosed under the existing law. Urging the Senate to defeat the bill entirely, Sen. Joe Morrissey, D-Richmond, said the existing law already allows officials to withhold or redact anything that “would constitute an unwarranted invasion of personal privacy.” Concerns those protections might not always work as intended, he suggested, shouldn’t outweigh the possibility that more transparency of law enforcement records could help exonerate innocent people.
“We are moving backwards,” Morrissey said. “What this bill does is everything we’re against in this body.”
But the argument that crime victims could be harmed by more transparency appears to be holding sway with senators on both sides of the aisle, including some of the same Democrats who backed the legislation last year.
“I know on this bill I’m going to stand with the victims,” Sen. John Bell, D-Loudoun, said on the Senate floor during Tuesday’s debate.
Del. Rob Bell, R-Albemarle, who is sponsoring the bill narrowing access to the files, said it was inspired partly by a filmmaker’s recent requests for records related to the high-profile murders of two young women in the Charlottesville area. In legislative hearings, the parents of those two victims have testified in support of the bill.
“Our concern is that free access to information would energize the murder groupies, folks who are titillated by violent acts, particularly against young women,” said Gil Harrington, the mother of Morgan Harrington, a Virginia Tech student who disappeared from a Metallica concert at John Paul Jones Arena in 2009. Her remains were found months later in a field in Albemarle County.
The mother of Hannah Graham, a University of Virginia student who was similarly abducted in 2014 and found dead in a remote area of Albemarle, also spoke against the details of her daughter’s murder being used for “entertainment.”
“What happened to Hannah is every parent’s worst nightmare,” Susan Graham said. “And it’s a nightmare that will never end.”
When pressed to explain exactly what sensitive records related to those murders had to be turned over under the new law, Bell said he didn’t know how the Albemarle County Police Department had responded or “how hard they’re fighting.”
At one point during a committee hearing, Dan Harrington, Morgan Harrington’s father, seemed to echo an argument made by law enforcement that the stronger FOIA law would simply be a burden on their agencies.
“Our friends in law enforcement tell us that to comply with the open FOIA access requests in Virginia would be ruinous to their already strained resources and budgets,” Harrington said.
Opponents of the bill said it could hinder attempts by outside parties and the press to review the case files of individual law enforcement officers who have been decertified for misconduct. That was among the issues Surovell said he’s hoping to address in final discussions on the bill.
“There’s no question that we need to show some sensitivity to the victims,” Surovell said. “The bill as drafted just cuts a little too broadly.”
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