How to get police and traffic camera video of a crash in Virginia

The public records law that gets you the video

Virginia Freedom of Information Act (VFOIA), Va. Code § 2.2-3700 et seq.

5 working days, +7; actual cost

Public records include all writings and recordings, including photography, magnetic impulse and electronic recording, in any physical form, prepared, owned or held by a public body in the transaction of public business (Va. Code § 2.2-3701), so video is covered; the FOIA Council’s staff said in advisory opinion AO-08-15 (October 5, 2015) that the fact that a record is a body-worn or dashboard camera recording does not change how FOIA treats it. Who may ask: the Act opens public records to citizens of the Commonwealth and to representatives of newspapers and magazines with circulation in Virginia and of radio and television stations broadcasting in or into Virginia (§ 2.2-3704(A)); the custodian may require your name and legal address. The request must identify the records with reasonable specificity and need not mention FOIA (§ 2.2-3704(B)). Deadline: the public body must promptly, and in all cases within five working days of receiving the request, either give you the records or answer in writing that they are withheld in whole or in part (citing the specific Code section for each category withheld), that they cannot be found or do not exist (with contact information for another public body it knows has them), or that it is not practically possible to respond within five working days, which gives it seven more work days, or 60 work days for criminal investigative files under § 2.2-3706.1 (§ 2.2-3704(B)). The State Police and VDOT both explain that “Day One” is the day after the request is received and that weekends and holidays do not count. For an extraordinary volume or search the body may ask a court for more time after trying to reach agreement with you (§ 2.2-3704(C)). A failure to respond is a denial and a violation (§ 2.2-3704(E)). The body need not create a record that does not exist (§ 2.2-3704(D)), and it must redact rather than withhold a whole record when only part is exempt (§ 2.2-3704.01). Fees: a public body may charge reasonable charges not exceeding its actual cost of accessing, duplicating, supplying or searching for the records, with no extraneous or overhead fees; before searching it must tell you in writing that it may charge and ask whether you want a cost estimate, the deadline pauses while you answer an estimate, and a request is treated as withdrawn if you do not respond within 30 days of the estimate; if charges are likely to exceed $200 it may require a deposit first, and it may require payment of bills unpaid 30 days or more (§ 2.2-3704(F), (H), (I)). Example, Virginia State Police: requests go preferably through its NextRequest portal, or to its FOIA Officer at foia@vsp.virginia.gov, (804) 972-1032, fax (804) 968-0322. VDOT says requests may be made by mail, email, in person or by phone and need not be in writing, though writing helps.

Police body camera and dashcam video

No release statute; VFOIA governs

We found no Virginia statute that specifically controls public release of body-worn or dashboard camera recordings. The one body camera statute requires every law-enforcement agency, before buying or deploying a body-worn camera system, to adopt a written policy that follows best practices, uses the Department of Criminal Justice Services model policy as guidance, and is first made available for public comment (Va. Code § 15.2-1723.1); it sets no release rule or retention period, and we did not confirm a statewide retention period for police video. Release is decided under VFOIA by what the video shows (FOIA Council AO-08-15, 2015). The exemptions police most often rely on: criminal investigative files, which the agency may withhold or release in its discretion (§ 2.2-3706(B)(1) and § 2.2-3706.1, below); and, for an incident that is not a criminal matter, the portions of noncriminal incident or investigative reports or materials containing identifying information of a personal, medical or financial nature whose release would jeopardize anyone’s safety or privacy (§ 2.2-3706(D)). The identity of a victim or witness may also be withheld in the agency’s discretion (§ 2.2-3706(B)(10)). No photograph, audio, video or other record depicting a victim or allowing a victim to be readily identified may be released from a criminal investigative file except to the victim, the victim’s family representative if the victim died, the parent or guardian of a minor victim, or the victim’s insurance company or attorney (§ 2.2-3706.1(G)). A public body must release the nonexempt portions of a record rather than withhold all of it (§ 2.2-3704.01), and records of 911 and other emergency calls are subject to VFOIA (§ 2.2-3706(E)). Ask the agency that recorded the video: the State Police for a trooper, or the city police or sheriff that responded.

When police can hold video back

Discretionary while ongoing, and after

Criminal investigative files are any documents and information, including photographs, reports, witness statements and evidence, relating to a criminal investigation or prosecution (Va. Code § 2.2-3706.1(A)). A crash can be a criminal matter: leaving the scene is a felony or misdemeanor (§ 46.2-894), and reckless driving is a Class 1 misdemeanor (§ 46.2-868). While a case is “ongoing,” defined as one in which the prosecution has not been finally adjudicated, the investigation continues to gather evidence for a possible future case, and that case would be jeopardized by premature release, the files are excluded from mandatory disclosure and released only at the custodian’s discretion (§ 2.2-3706.1(A), (C)). When a case is not ongoing, the files are still discretionary for the public, but they must be disclosed on request, whether or not the requester is a Virginia citizen, to the victim, the immediate family of a deceased victim, or the parent or guardian of a minor victim (if not a person of interest or suspect); an attorney who swears that he has been retained to pursue a civil or criminal action and has a good faith basis to believe the records are material may inspect them where they are kept (§ 2.2-3706.1(D)). Neither rule applies if release would interfere with a particular ongoing investigation or proceeding in a particularly identifiable manner, deprive someone of a fair trial, be an unwarranted invasion of personal privacy, disclose a confidential source or protected investigative techniques, or endanger anyone, but portions unlikely to cause those effects may not be withheld on that ground (§ 2.2-3706.1(E)). Before releasing a criminal investigative file, the agency must make reasonable efforts to notify the victim (or, if not a person of interest or suspect, the immediate family of a deceased victim or the parent or guardian of a minor victim), who then has 14 days to petition a court to block it; the agency may not respond during those 14 days unless that person waives them or the request comes from the victim’s insurance company or attorney, and the response deadline is paused during notification and any court case (§ 2.2-3706.1(F)). Even during an investigation, an agency must give, for felony offenses, a general description of the criminal activity, the date, time and general location, the investigating officer or point of contact, and a description of injuries or property damage (§ 2.2-3706.1(B)), and the identity of an adult arrested and charged and the status of the charge (§ 2.2-3706(A)(2)). The State Police add that records of its active criminal investigations are governed by § 52-8.3. Agencies get 60 extra work days, instead of seven, for requests for criminal investigative files (§ 2.2-3704(B)(4)).

Do traffic cameras in Virginia record?

VDOT says it does not record

VDOT’s 511 Virginia site says on its camera list: “PLEASE NOTE: VDOT cameras are intended to provide real-time traffic information. VDOT does not record traffic camera footage. Footage from the past is not available.” Cameras run by a city or county are separate; ask that locality right away, because VFOIA does not require a public body to create a record that does not exist (§ 2.2-3704(D)), and we found no statewide rule on how long a locality keeps traffic camera video. VDOT itself takes FOIA requests at foia@vdot.virginia.gov, 804-371-8696, or VDOT Annex Building, 1221 E. Broad St., 11th floor, Richmond, VA 23219. Its posted fees are an hourly labor rate of $23.29 to $30.12 depending on the district (none if the request takes under an hour) plus production charges such as $2.00 per CD-ROM or DVD (none if production costs are under $4.00), payable only by cash, check or money order. VDOT lists among its commonly used exemptions information related to the operation of toll facilities that identifies an individual, vehicle or travel itinerary, which the statute says includes video or photographic images (§ 2.2-3705.7(16)), so toll and express lane camera images may be withheld.

Red-light and speed cameras

Local red-light and speed; closed images

Red-light cameras: a county, city or town may by ordinance run a traffic signal enforcement program, with cameras at no more than one intersection per 10,000 residents (in Planning District 8, the greater of 10 intersections or one per 10,000 residents); localities in Planning District 23 may also use traffic control device cameras at intersections affected by the Hampton Roads Bridge-Tunnel Express Lanes project (Va. Code § 15.2-968.1(B)). The penalty may not exceed $50, with no court costs, and is not a conviction or part of the driving record (§ 15.2-968.1(F)). The summons gives the person summoned at least 30 business days to inspect the information collected about the violation (§ 15.2-968.1(G)). Speed cameras: a state or local law-enforcement agency may operate photo speed cameras in school crossing zones, in highway work zones when workers are present, at high-risk intersection segments near schools where a traffic fatality has occurred since January 1, 2014, and on National Park highways in Planning District 8 with federal approval, and Planning District 8 localities may add them in “safety red zones” by ordinance; pedestrian crossing and stop sign cameras are allowed in school crossing and work zones (§ 46.2-882.1(A), (B)). Liability starts at 10 miles per hour over the limit and the civil penalty may not exceed $100 (§ 46.2-882.1(C)); the summons gives at least 30 days to inspect the information, including calibration proof if contested. Image access: for both red-light and speed cameras, “notwithstanding any other provision of law,” the images may be used only for enforcement and may not be open to the public or disclosed to any other entity except as needed for enforcement or to a vehicle owner or operator challenging the violation, or used in a court unless the case concerns the violation or a court of competent jurisdiction orders them (§§ 15.2-968.1(H), 46.2-882.1). Red-light data must be purged within 60 days after penalties are collected, and within two business days if no summons is issued within 10 business days (§ 15.2-968.1(H)); speed camera data must be destroyed 21 days after capture unless a summons is issued (§ 46.2-882.1). So a camera at your crash scene may have deleted any useful image within days. Both sections have versions or subsections with future or contingent effective dates (the red-light section has a version effective July 1, 2027 and a contingent one; parts of the speed section change July 1, 2027). School bus cameras: a locality may by ordinance let its school division put video-monitoring systems on buses to enforce the $250 civil penalty for passing a stopped school bus, and the summons gives 30 business days to inspect the video (§ 46.2-844). We found no provision in § 46.2-844 on whether anyone else may see that video (its only confidentiality rule covers DMV owner information given to a private vendor, § 46.2-844(B)(4)); ask the school division promptly in writing.

If your request is denied

Court petition; FOIA Council advice

We found no administrative appeal in VFOIA. Anyone denied rights under the Act may file a petition for mandamus or injunction, supported by an affidavit showing good cause, in the general district court or circuit court: for a local public body, of the county or city it serves where the denial happened; for a state agency, such as the State Police or VDOT, of your residence or the City of Richmond (Va. Code § 2.2-3713(A)). The petition must be heard within seven days of filing, provided the public body received a copy at least three working days before filing (§ 2.2-3713(C)). The public body has the burden of proving an exemption applies by a preponderance of the evidence, the court gives its determination no weight, and any failure to follow the Act’s procedures is presumed a violation (§ 2.2-3713(E)). A petitioner who substantially prevails recovers reasonable costs, expert fees and attorney fees unless special circumstances make an award unjust (§ 2.2-3713(D)). A court that finds a willful and knowing violation must fine the official personally $500 to $2,000, or $2,000 to $5,000 for a later violation, and may add up to $100 per record destroyed or altered to avoid a request (§ 2.2-3714(A), (B)). Before going to court, you can ask the Virginia Freedom of Information Advisory Council, a legislative branch office that gives advisory opinions to any person or public body on request (§ 30-179); it is not an enforcement agency and does not process requests, and VDOT describes its opinions as nonbinding. Contact it at foiacouncil@dls.virginia.gov, (804) 698-1810 or (866) 448-4100. You may want to ask a lawyer before filing a petition.

What to do now

1. 1

   Send a FOIA request to the police agency today

   Name the date, time, location and report number, and ask for all body-worn and in-car camera video and 911 audio. The agency must answer within five working days.

2. 2

   Ask for a cost estimate

   Agencies may charge their actual cost and must offer an estimate before searching; a deposit may be required if charges will exceed $200. Reply within 30 days or the request is treated as withdrawn.

3. 3

   If withheld as an investigation, ask again later

   Ask again once charges are resolved. A victim can get a closed criminal investigative file on request under § 2.2-3706.1(D), unless a § 2.2-3706.1(E) exception applies.

4. 4

   Find private cameras before they overwrite

   VDOT does not record its cameras and red-light and speed images are closed and quickly purged. Ask nearby businesses now and post the crash on the bounty board for dashcam footage.

Frequently asked questions