Earlier this month, Virginia Governor Ralph Northam signed into law a bill that will give individuals, families and advocacy groups greater access to records of criminal investigations that are “no longer ongoing” — potentially helping to overturn wrongful convictions and identifying true perpetrators in those cases, The Innocence Project and The Virginian-Pilot report.
The new law goes into effect July 1, ending Virginian law enforcement practice of shielding almost all of their files from the public — “whether they are incident reports from the past week or case files that haven’t been looked at in decades,” The Virginian-Pilot writes.
Despite the Virginia Freedom Information Act which currently allows police, prosecutors, and sheriff’s offices to release files that fall under those descriptions, the department almost always rejects such requests “as a matter of policy,” according to the report.
Many see this as a step towards greater police transparency — while others are still skeptical about this amount of information sharing.
The crusade to make police misconduct files public has largely been led by family members of victims of the 2019 Virginia Beach shooting, when a former employee of the city opened fire on a municipal building, according to the Innocence Project.
Jason Nixon, whose wife, Kate, was one of the 12 people senselessly killed, said that he still has “many unanswered questions” about the shooting — making it difficult for him and his family to heal. He also shared that investigators took his wife’s journals as part of the police file, and he still hasn’t been able to get them back.
“Over a year later these questions still linger,” Nixon said, testifying before the Virginia legislature in February 2021. “The Virginia Beach Police investigated the shooting but won’t release the findings.”
“How can we start to heal when we still don’t know what really happened? How can we feel confident in the investigation?”
While this latest legislative change is expected to bring closure to families who have lost loved ones, the Innocence Project champions the new law, saying “it has made it difficult for attorneys to access their clients’ old case files and the case files of officers known to have contributed to other wrongful convictions,” making it nearly impossible for them to do their work.
Requests by The Innocence Project at UVA School of Law (UVAIP) for records on what are believed to be more wrongful convictions handled by a detective who is now serving a federal sentence for corruption and extortion have been repeatedly denied. The former detective, Robert Glenn Ford, was involved in the “Norfolk Four” case where four U.S. Navy sailors were wrongfully convicted for rape and murder in 1997, and pardoned after 20 years. This is expected to change after July 1.
Steps Toward Transparency
Increased access to inactive criminal investigation files is deemed a “clear step towards greater police transparency,” according to the Innocence Project. However, they write that more accountability measures need to be put in place to “ensure fair and equal justice for all.”
Considering Virginia is one of 37 states that withhold police misconduct records, studies show that keeping information shielded from the public and advocacy groups contributed to the wrongful convictions of 37 percent of people exonerated since 1989.
Keeping these records could contribute to more people being locked away unjustly.
Moreover, a lack of transparency around sharing these files impedes public and external oversight, which could encourage further misconduct within the ranks, the Innocence Project said.
Because of the high stakes of justice in these cases, the Innocence Project is actively working with several states to ensure similar laws are created and passed. Even so, other organizations and communities are against the release of this sensitive information.
Invasion of Personal Privacy?
The legislation is similar to what Delegate Chris L. Hurst (D-Blacksburg) introduced during last year’s special state session. After clearing the House, that bill didn’t pass in the Senate when a committee voted for further study.
Law enforcement groups were also strongly against that proposal, according to The Virginian-Pilot, citing concerns over both privacy and future prosecutions.
This perspective came after a hearing in which Albemarle County’s top prosecutor, Commonwealth’s Attorney Jim Hingeley, cited a series of problems — some “worthy of great concern” — with opening the files to the public, according to The Virginian-Pilot. Hingeley cited concerns over the release of documents ranging from mental health evaluations to witness statements.
In this new law going into effect, it will continue to allow the police to withhold “sensitive” information that must be protected — like ongoing criminal investigation documents or anything that would endanger someone’s safety, according to the bill’s language.
CORRECTION: Earlier versions of this story have been corrected to make clear that the curbs on public access employed by 37 states relate only to police misconduct records and not to criminal investigative records. The majority of states (32) and the federal government permit public access to inactive criminal investigative files. Until the Virginia legislation was passed, police agencies in the state were given complete discretion about whether to release this information.
Andrea Cipriano is a TCR staff writer