Lies, submission to police and prosecutors overturned open government law


It is not surprising that the General Assembly shows a certain contempt for journalists. After all, we are exposing lawmakers shortcomingsthe hypocrisies and pettiness. Lawmakers don’t have to make it easy for me – and they rarely do.

Why these people have such contempt for Virginians, however, is puzzling. Because when lawmakers target members of the Fourth Estate, they also target everyone else. Citizens often learn about government problems and misdeeds through the work of journalists.

Which brings me to the Assembly’s latest anti-transparency initiative. It essentially overturned an open government law covering police records, which had been on the books for less than a year. Lies and misinformation – perhaps intentional – clouded the debate, leading to the final vote last weekend.

Let me save:

In 2021, state lawmakers approved a bill that required law enforcement agencies to provide closed investigation files under the state Freedom of Information Act. The move followed a study by the Virginia Freedom of Information Advisory Council. The Innocence Project had noted that most state and federal officials open these records to the public, with a few exceptions.

Even some families of victims of crime – but certainly not all – supported the bill. Jason Nixon’s wife was killed in the mass shooting at the Virginia Beach Civic Center in 2019. Nixon fought for the 2021 law to demand more accountability from local authorities.

This is important as local police, sheriff’s departments and other law enforcement agencies in the Commonwealth almost always deny access to information when it is “discretionary”. They rarely return more than what is mandated by law.

The default answer is usually: No, we don’t post anything more. We don’t have to. We are also not going to determine whether the disclosure could compromise any cases. Or explain why we think this information is so valuable that we need to withhold it.

As someone who has worked in newspapers in other states, I can tell you that this is too secretive a position. It fails to alert the public to details that won’t hamper investigations, but could inform people of the nature of what’s going on in their neighborhood.

The 2021 law also provided protections for victims of crime and their families. Sensitive photos of the victims could not be published, for example.

Yet both houses decided this year to strike down the 2021 legislation, which was enacted after the police murder of George Floyd in Minneapolis.

The law was signed by the governor at the time. Ralph Northam, at a time when the Democrats controlled both houses. It was designed for the public to keep tabs on what police departments are doing and prevent them from ever closing cases where prosecutions have ended.

The Richmond Times-Dispatch pointed to the misinformation that had accompanied this year’s debate, and that “several lawmakers acknowledged during the process that they misunderstood” the state’s FOIA. Nor have any supporters of the new bill given examples of leaked sensitive documents.

It was a reversal looking for a problem.

Among the critics of the 2021 law was Senator Richard Stuart, R-King George. He sits on the Freedom of Information Advisory Council, along with other lawmakers and citizens. With open government friends like Stuart, who needs enemies?

Nor have legislators undergone the sober and detailed scrutiny that the advisory council once undertook. This time around, a few lawmakers received complaints from victims’ families and police departments. Several law enforcement organizations supported the inversion; they got their wish.

I know that the loved ones of crime victims are sensitive to anything that is published or broadcast about their loved ones. It is not fair, however, to stir up the emotions of a few against the broader concern of all Virginians to have proper oversight and scrutiny from policing.

The position taken by lawmakers is also clearly paternalistic. They suggest the millions of Virginians who live here aren’t smart or sophisticated enough to determine whether the 2021 law had gone too far in the few months it was in effect and whether free information was released.

Six Senate Democrats voted for this year’s bill, essentially reversing their position from last year. I asked a few of them for interviews, but only Dave Marsden of Fairfax County responded.

Marsden said Tuesday the legislation would “maintain the privacy” of victims and their families. He noted that the press still has access to closed cases by seeking them from those relatives – although this is often a difficult obstacle to overcome.

However, he acknowledged that he was not aware of any abuse under the applicable law.

The senator said he has backed numerous police reform bills since 2020 that lean towards citizens’ rights. “I’m just a little concerned about the messages being sent to law enforcement,” Marsden noted.

It suggests that Marsden, who plans to run for office next year, is aware of how his votes could play with law enforcement groups. Maybe other senators too.

This is not the first time that the Assembly has chosen secrecy over sunshine. In 2017, lawmakers did something downright bizarre: He stopped law enforcement officials from naming minors who die in crimes, unless the family gives consent.

It was a strange, Luddite-like move in the age of smartphones, social media, and videos. Neighbors, schools and others might discover the identifications – but officers, don’t tell the press!

The latest development in Richmond gives police and prosecutors the secrecy they want. Grieving families sensitive to any reports of murdered loved ones will be too. Even if they already had protections.

Millions of other Virginians? You are left in the dark.

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