Virginia SB 204: Virginia Freedom of Information Act; release of criminal investigative files exception.

Bill Text

VIRGINIAACTSOFASSEMBLY--2024SESSION
CHAPTER580
An Act to amend and reenact § 2.2-3706.1 of the Code of Virginia, relating to Virginia Freedom of
Information Act; release of criminal investigative files exception.
[S204]
ApprovedApril5,2024
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.
"Family representative" means the decedent's personal representative or, if no personal representative
as set forth in § 64.2-100 has qualified, the decedent's next of kin in order of intestate succession as set
forth in §64.2-200.
"Immediate family members" means the decedent's family representative, spouse, child, sibling,
parent, grandparent, or grandchild. "Immediate family members" include a stepparent, stepchild,
stepsibling, and adoptive relationships.
"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 records and
information when requested in accordance with the provisions of this chapter 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:
1. A general description of the criminal activity reported;
2. The date and time the alleged crime was committed;
3. The general location where the alleged crime was committed;
4. The identity of the investigating officer or other point of contact; and
5. A description of any injuries suffered or property damaged or stolen.
A verbal response as agreed to by the requester and the public body is sufficient to satisfy the
requirements of this subsection.
C. Criminal investigative files relating to an ongoing criminal investigation or proceeding 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 E or where such disclosure is prohibited by
law.
D. Criminal investigative files relating to a criminal investigation or proceeding that is not ongoing
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 E; however, such records shall be
disclosed, by request, to (i) the victim; (ii) the victim's immediate family members, if the victim is
deceased and the immediate family member to which the records are to be disclosed is not a person of
interest or a suspect in the criminal investigation or proceeding; (iii) the parent or guardian of the
victim, if the victim is a minor and the parent or guardian is not a person of interest or a suspect in the
criminal investigation or proceeding; (iv) an attorney representing a petitioner in a petition for a writ of
habeas corpus or writ of actual innocence pursuant to Chapter 19.2 (§ 19.2-327.2 et seq.) of Title 19.2
or any other federal or state post-conviction proceeding or pardon; and (v) for the sole purpose of
inspection at the location where such records are maintained by the public body that is the custodian of
the records, (a) an attorney or his agent when such attorney is considering representing a petitioner in a
post-conviction proceeding or pardon, (b) an attorney who provides a sworn declaration that the attorney
has been retained by an individual for purposes of pursuing a civil or criminal action and has a good
faith basis to believe that the records being requested are material to such action, or (c) a person who is
proceeding pro se in a petition for a writ of habeas corpus or writ of actual innocence pursuant to
Chapter 19.2 (§ 19.2-327.2 et seq.) of Title 19.2 or any other federal or state post-conviction proceeding
or pardon, who provides a sworn affidavit that the records being requested are material to such action.
An attorney or his agent who is in receipt of criminal investigative files or has inspected criminal
investigative files pursuant to clause (iv) or (v) shall not release such criminal investigative files or any

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information contained therein except as necessary to provide adequate legal advice or representation to a
person whom the attorney either represents or