After a Virginia police officer shoots someone, when does the Virginia Freedom of Information Act require the local police department to release body-worn or dashboard camera footage of the shooting?

Subject

When Virginia's Freedom of Information Act requires or permits local police departments to disclose body-worn or dashboard camera recordings connected to officer-involved shootings.

Plain-English summary

Delegate Rasoul asked when local police must or may release recordings related to officer-involved shootings. The AG concluded that footage must be released unless a statutory exception applies. If an exception applies, the department may still release footage unless another law prohibits release.

The opinion explains that § 2.2-3706.1(B)(2) requires disclosure of such recordings as part of a criminal investigative file if the investigation is not "ongoing" and no listed exception applies. The statute defines an ongoing case through three conditions that must all be present: prosecution has not been fully adjudicated, the investigation continues to gather evidence for a possible future criminal case, and premature release would jeopardize that case. If any one is absent, the case does not meet this definition of "ongoing."

Other exceptions can still make disclosure discretionary. The opinion lists interference with another ongoing investigation, harm to a fair trial, unwarranted invasion of personal privacy, identification of a confidential source, disclosure of techniques that risks circumvention of law, and risk to life or physical safety. A recording depicting a readily identifiable victim is exempt from mandatory public disclosure but must be disclosed to the victim, immediate family of a deceased victim, or parent or guardian of a minor victim.

The opinion identifies a narrow prohibition on disclosure of records that would reveal the identity of someone who supplied information about a crime under a promise of anonymity.

What this means for you

If you request police camera footage

A local police department must release officer-involved-shooting recordings when the investigation is not ongoing under the statute and no listed exception applies. The opinion does not decide whether an exception applies to a particular recording.

If you administer police records

The three elements of the statutory "ongoing" definition are cumulative. When mandatory disclosure does not apply because of an exception, release may still be discretionary unless prohibited by law.

Common questions

When is an investigation "ongoing" under this provision?
Only when the prosecution is not fully adjudicated, evidence-gathering continues for a possible future criminal case, and premature release would jeopardize that case. The absence of any one element means the statutory definition is not met.

What if the victim is readily identifiable in the footage?
The opinion says mandatory public disclosure is exempted, but the recording must still be disclosed to the victim, the immediate family if the victim died, or a parent or guardian if the victim is a minor.

Can police release footage when a disclosure exception applies?
The AG says release is discretionary in that situation unless otherwise prohibited by law.

Background and statutory framework

The AG explains that footage recorded and maintained by a local police department is a public record. Section 2.2-3706 separates law-enforcement records into required, discretionary, and prohibited-release categories. Section 2.2-3706.1 supplies the specific rule for recordings related to officer-involved shootings in criminal investigative files. The AG applies its definition of "ongoing" and its enumerated exceptions to the disclosure question.

Citations and references

• Va. Code § 2.2-3706 (law-enforcement records)
• Va. Code § 2.2-3706.1 (officer-involved-shooting recordings)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/20-034-Rasoul-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

July 16, 2021

The Honorable Sam Rasoul
Member, Virginia House of Delegates
Post Office Box 13842
Roanoke, Virginia 24037

Dear Delegate Rasoul:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You have asked for a formal opinion about disclosure of footage from police body-worn and dashboard cameras. For purposes of this opinion, I understand you to ask under what circumstances the Virginia Freedom of Information Act, Va. Code Ann. § 2.2-3700 et seq. (VFOIA), requires or permits local police departments to disclose recordings from body-worn and/or dashboard cameras in connection with officer-involved shootings.

Background

You relate that, in February 2016, high school student Kionte Spencer was shot by Roanoke County Police officers and died shortly thereafter. You note that, after officer-involved shootings, families are often left wondering what happened to their loved ones, and you inquire whether local police departments have authority to release relevant footage from body-worn and/or dashboard cameras in certain circumstances.

Applicable Law and Discussion

The General Assembly enacted VFOIA to "ensure[] the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees." Consistent with that purpose, VFOIA creates a strong presumption that "all public records shall be open to citizens of the Commonwealth" unless "otherwise specifically provided by law." "Any exemption from public access to records . . . shall be narrowly construed and no record shall be withheld . . . unless specifically made exempt pursuant to [VFOIA] or other specific provision of law."

Under VFOIA, footage from body-worn or dashboard cameras recorded and maintained by a local police department is a public record. Most of the provisions relevant to disclosure of police camera footage are located in § 2.2-3706, which addresses "[d]isclosure of law-enforcement and criminal records; limitations." That section defines three categories of records related to criminal law enforcement: (1) those that are "required to be released," (2) those that "are excluded from the mandatory disclosure provisions of [VFOIA], but may be disclosed" according to "the custodian['s] . . . discretion," and (3) those for which "release[]" is "[p]rohibited."

A recording may fall into the first category of § 2.2-3706, under which "[r]ecords [are] required to be released," to the extent an investigation of an "unattended death" has been "completed" and the records of the investigation have been requested by family members of the decedent as defined by the statute. Under that subsection, an "unattended death" is defined as "a death determined to be a suicide, accidental or natural death where no criminal charges will be initiated."

In the 2021 Special Session I, the General Assembly enacted an amendment to the Virginia Freedom of Information Act, creating new code § 2.2-3706.1. Under § 2.2-3706.1(B)(2), recordings related to an officer-involved shooting must be released as part of criminal investigative files, if the investigation is not ongoing and none of the enumerated exceptions applies. Videos depicting a victim or where a victim is "readily identifiable" are exempt from mandatory public disclosure, but they still must be disclosed to the victim, the victim's immediate family if the victim is deceased, or the parent or guardian of the victim if the victim is a minor.

The release is only mandatory if the investigation is not ongoing, and the statute defines "ongoing" as "a case in which the prosecution has not been fully 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." Further, release is not mandatory if it would interfere with any ongoing criminal investigation, deprive a person of a right to fair trial or impartial adjudication, cause an unwarranted invasion of personal privacy, disclose the identity of a confidential source, disclose law enforcement techniques if the disclosure could reasonably be expected to risk circumvention of the law, or endanger someone's life or physical safety.

If one of the exceptions does apply, then release of the video is discretionary. Police departments may (but are not required to) release camera footage, so long as disclosure is not otherwise "prohibited by law." This type of "[d]iscretionary release[]" would apply, for example, to a recording that is part of a "[c]riminal investigative file[]" as "evidence relating to a criminal investigation or prosecution." A department likewise may have discretion to disclose camera footage in connection with an "administrative investigation[] relating to allegations of wrongdoing by employees of a law-enforcement agency."

Only limited types of records fall under the third category, where "release[]" would be "[p]rohibited." Those are records that would disclose "[t]he identity of any individual providing information about a crime or criminal activity under a promise of anonymity."

Conclusion

Accordingly, it is my opinion that the Virginia Freedom of Information Act requires local police departments to release footage from body-worn and/or dashboard cameras related to officer-involved shootings unless an exception applies. Where an exception applies, a local police department may still release the footage unless doing so is otherwise prohibited.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General