What Law Enforcement Personnel and Incident Records Must Be Disclosed Under Virginia Freedom of Information Act? Guidance by Order of the Virginia Supreme Court

By: Andrew McRoberts, Editor. This was posted Saturday, February 9th, 2013

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The Virginia Supreme Court published an order dated February 8, 2013 in the case of Harmon v. Ewing, giving guidance to Virginia law enforcement agencies and local government attorneys working with them.  The case involves an extensive request under the Virginia Freedom of Information Act to the the James City County Police Department.  The decision of the circuit court ordering production was reversed in part, affirmed in part and remanded.  The order gives guidance in the complex intersection of public records, public criminal incident information, confidential personnel information and protection of the investigative process.

This summary is from the Virginia Supreme Court website.  Click on the case name or number to read the order.

121118 Harmon v. Ewing (ORDER) 02/08/2013 In a petition under the Virginia Freedom of Information Act arising from a request for production by a police department of personnel records of a specific officer, such records are subject to the protections of Code § 2.2-3705.1(1) and their production was appropriately refused by the Department; the circuit court’s order requiring disclosure of the personnel records is reversed. The request for criminal incident information including the identities of all individuals, other than juveniles, arrested or charged by this officer must be accommodated by the Department. However, under Code § 2.2-3706 the portion of the request concerning the identities of individuals arrested by other officers based on observations or information supplied by the specified officer seeks information that is exempt from disclosure. Concerning the award of attorneys’ fees in this matter under Code § 2.2-3713(D), the determination of “special circumstances” lies in the sound discretion of the trial court, and this issue must be considered in light of the several holdings in favor of the responding police department on this appeal. The circuit court must reconsider whether to award attorneys’ fees and, if so, the appropriate quantum. The judgment is affirmed in part, reversed in part, and the case is remanded.



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