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

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.

Plain-English summary

Delegate Sam Rasoul asked the Attorney General when the Virginia Freedom of Information Act (VFOIA) requires or permits local police to release body-worn camera or dashboard camera footage of officer-involved shootings. The question came in the context of the death of Kionte Spencer, shot by Roanoke County Police officers in 2016, and the broader frustration that families of people killed by police often cannot see what happened to their loved one.

The AG walked through the two key statutes:

Section 2.2-3706 sorts law-enforcement records into three buckets: records that must be released, records that may be released at the agency's discretion, and records whose release is prohibited. Camera footage typically falls into the discretionary bucket as part of a "criminal investigative file."

Section 2.2-3706.1, enacted in 2021 Special Session I and effective July 1, 2021, changes the calculus specifically for officer-involved shootings. Under § 2.2-3706.1(B)(2), once an investigation is no longer "ongoing" and no enumerated exception applies, recordings related to an officer-involved shooting must be released as part of criminal investigative files. The statute defines "ongoing" narrowly: the prosecution must not be fully adjudicated, the investigation must still be gathering evidence for a possible future criminal case, and the case must be jeopardized by premature release.

If the investigation is over and no exception applies, release is mandatory. Exceptions include risk of interference with another ongoing investigation, fair-trial concerns, unwarranted privacy invasion, disclosure of a confidential source, disclosure of law-enforcement techniques in a way that risks circumvention, or safety risk to a person. Where the victim is "readily identifiable" in the footage, the recording is exempt from mandatory public disclosure but still must be released to the victim (or the deceased victim's immediate family, or a minor victim's parent or guardian).

Only one category of records is flat-out prohibited from release: those that would reveal the identity of someone who supplied information about a crime under a promise of anonymity.

What this means for you

For families of someone shot by Virginia police

The opinion holds that once the investigation is no longer "ongoing" (the prosecution is fully adjudicated, the investigation is not gathering evidence for a possible future criminal case, and release would not jeopardize the case) and no enumerated exception applies, § 2.2-3706.1(B)(2) makes release of the footage mandatory. The opinion adds that even where a victim is "readily identifiable" and the recording is exempt from public disclosure, it still must be released to the victim, to the immediate family of a deceased victim, or to the parent or guardian of a minor victim.

For Virginia police departments

Under the opinion, § 2.2-3706.1 makes disclosure the default once an officer-involved-shooting investigation closes, subject to the listed exceptions (interference with another ongoing investigation, fair-trial concerns, unwarranted invasion of privacy, confidential-source identity, disclosure of law-enforcement techniques that risks circumvention, or danger to a person's safety). The opinion states that where an exception applies, release becomes discretionary: the department may release the footage unless doing so is otherwise prohibited by law.

For journalists and civil rights attorneys

The opinion treats body-worn and dashboard camera footage as a "public record" subject to VFOIA's presumption of openness, with exemptions narrowly construed. For officer-involved shootings specifically, it reads § 2.2-3706.1 as shifting that footage out of the discretionary "criminal investigative file" category and into mandatory release once the investigation ends and no exception applies.

For criminal defense attorneys and prosecutors

The opinion turns on the statutory definition of "ongoing." A criminal investigative file stays exempt from mandatory release only while the prosecution is not fully adjudicated, the investigation continues to gather evidence for a possible future criminal case, and release would jeopardize that case. The opinion does not address how that line interacts with any related civil proceeding.

Common questions

When must Virginia police release body cam footage of an officer-involved shooting?
Once the investigation is no longer "ongoing" as defined in § 2.2-3706.1(A) and no other listed exception applies, release is mandatory under § 2.2-3706.1(B)(2).

What counts as "ongoing"?
The statute defines it as a case where the prosecution has not been fully adjudicated, the investigation continues to gather evidence for a possible future criminal case, and the case would be jeopardized by premature release of evidence.

What if the footage shows the victim?
A recording where the victim is "readily identifiable" is exempt from mandatory public disclosure, but must still be released to the victim, the victim's immediate family (if deceased), or the parent/guardian (if a minor).

Can the department release the footage even when an exception applies?
Yes. Section 2.2-3706 explicitly identifies most law-enforcement records as discretionary, meaning the agency can release them unless release is otherwise prohibited.

Is any footage flat-out forbidden from release?
Yes. Records that would disclose the identity of a person who supplied information about a crime under a promise of anonymity must not be released.

What does VFOIA say generally about access?
The legislature wrote VFOIA to "ensure[] the people of the Commonwealth ready access to public records," with a presumption of openness and "any exemption ... narrowly construed," per § 2.2-3700(B) and § 2.2-3704(A). Bergano v. City of Virginia Beach, 296 Va. 403 (2018), describes it as a "broad mandate of disclosure."

Does the law cover sheriff's offices and other Virginia law-enforcement agencies?
The opinion was framed around "local police departments" but VFOIA defines "public body" broadly. Sheriff's offices and other law-enforcement agencies are similarly covered, with the same statutory exceptions.

Background and statutory framework

VFOIA is built on § 2.2-3700(B), which announces a strong presumption that "all public records shall be open to citizens of the Commonwealth," and § 2.2-3704(A), which mandates that any exemption be narrowly construed. Body-worn and dashboard camera footage falls within the statutory definition of "public records" in § 2.2-3701.

The 2021 Special Session I amendment that added § 2.2-3706.1 was a meaningful change. Before that amendment, footage of officer-involved shootings was typically held within "criminal investigative files," which are exempt from mandatory disclosure under § 2.2-3706(B)(1). After the amendment, the default flipped for officer-involved shootings: mandatory release after the investigation is over, unless a specific exception applies.

The Virginia courts had previously held that an investigation closing does not, on its own, eliminate the criminal-investigative-file exemption (Fitzgerald v. Loudoun Cty. Sheriff's Office, 289 Va. 499, 506-07 (2015); Stevens v. Lemmie, 40 Va. Cir. 499, 503 (1996)). Section 2.2-3706.1 supersedes that result for officer-involved shootings specifically.

Connell v. Kersey, 262 Va. 154, 163-64 (2001), separately holds that police are not required to release actual criminal-incident records, only a summary of certain information for felony offenses. That rule does not control § 2.2-3706.1 disclosures, which are footage-specific and operate on different statutory text.

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 2.2-3700 (VFOIA policy)
• Va. Code § 2.2-3701 (definitions, public records)
• Va. Code § 2.2-3704 (records access; narrow construction of exemptions)
• Va. Code § 2.2-3706 (law-enforcement records, three-tier disclosure scheme)
• Va. Code § 2.2-3706.1 (officer-involved-shooting recordings; 2021 Sp. Sess. I, H.B. 2004)
• Bergano v. City of Virginia Beach, 296 Va. 403 (2018)
• Connell v. Kersey, 262 Va. 154 (2001)
• Fitzgerald v. Loudoun Cty. Sheriff's Office, 289 Va. 499 (2015)
• Stevens v. Lemmie, 40 Va. Cir. 499 (1996)
• 2015 Op. Va. Att'y Gen. 24

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