Freedom of Information: Videos showing dog biting inmates are exempt from disclosure

Where requesters sought video and audio recordings of a canine biting inmates, the circuit court erred in ordering their disclosure. Code § 2.2-3706(B)(4) excludes from mandatory disclosure “[a]ll records of persons imprisoned in penal institutions in the Commonwealth provided such records relate to the imprisonment.” Because the videos are  saved and maintained to document inmates’ activity during their imprisonment, they fall within the exemption.

Background                  

Insider Inc., Hannah Beckler and Ian Kalish sought video and audio recordings from the Virginia Department of Corrections, or VADOC, in which a canine bit or “engaged” an inmate at Red Onion State Prison from Jan. 1, 2017, to Dec. 31, 2022, in addition to bite reports and incident reports of 12 specific incidents. The circuit court granted Insider’s petition but permitted VADOC to exercise its discretion in redacting portions of the records.

Code § 2.2-3706(B)(4)

Code § 2.2-3706(B)(4) excludes from mandatory disclosure “[a]ll records of persons imprisoned in penal institutions in the Commonwealth provided such records relate to the imprisonment.” As evident by the plain language of the statute, the legislature has made clear that “all records of persons imprisoned” be excluded from mandatory disclosure, so long as “such records relate to the imprisonment.”

Imprisonment is defined as (1) “[t]he act of confining a person, esp. in a prison;” (2) “[t]he quality, state, or condition of being confined;” or, (3) [t]he period during which a person is not at liberty.” Here, the surveillance videos at issue document prisoners’ interactions while imprisoned, particularly their interactions leading up to and including being engaged by a VADOC canine.

These records can fairly be described as relating to the prisoners’ confinement or “quality, state, or condition of being confined,” as they are videos saved and maintained to document inmates’ activity during their imprisonment. Because the statute is clear and unambiguous, and because the surveillance videos relate to the imprisonment, they are records specifically made exempt under Code § 2.2-3706(B)(4).

Insider avers that Code § 2.2-3706(B)(4) should be read as “all records of persons imprisoned in penal institutions in the Commonwealth provided such records relate to the carrying out of their sentence.” If the legislature had intended to narrow or qualify the exemption so that it only related to “the sentence,” it would have done so.

Insider also contends that because the surveillance videos are not specific to one inmate, they do not fall under the ambit of Code § 2.2-3706(B)(4). However, the code section does not contain language limiting the record to be made “of a specific inmate” or even “of a person imprisoned”; such a qualifier simply does not exist.

Instead, the language is broad and unambiguous, providing that “[a]ll records of persons imprisoned” be excluded from mandatory disclosure, so long as the records relate to their “imprisonment.” Insider’s position would add language to the exemption that was simply not included by the legislature.

The incident reports would likewise be exempt from mandatory disclosure under Code § 2.2-3706(B)(4). The incident reports sought by Insider were generated as a result of inmates’ actions and included correctional officer responses to an incident relating to those inmates. Thus, the incident reports are “records of persons imprisoned” under Code § 2.2-3706(B)(4), as they are reports documenting actions of inmates.

Without the inmates’ actions leading up to the incident requiring correctional officer response, there are no records here for Insider to request. Further, the altercations and the correctional officers’ response can fairly be said to “relate to the imprisonment” as they are connected with the prisoners’ confinement or the quality, state or condition of being confined. Therefore, the circuit court erred in concluding that the video recordings and incident reports are not exempt under Code § 2.2-3706(B)(4).

Waiver

The bite reports here are distinct from the surveillance videos and incident reports because they are records created and maintained to document the VADOC canine’s action, rather than inmates’ action. However, this court need not address whether the bite reports would fall under one of the VFOIA exemptions or whether the redaction sections would apply, because Insider waived their right to request them.

Reversed.

Concurring opinion

Malveaux, J., concurring only in the judgment.

I agree with the majority that the circuit court’s judgment must be reversed. I write separately, however, to explain where I locate the reversible errors in the record of this challenging case.

Virginia Department of Corrections v. Insider Inc., Record No. 1626-24-2, Oct. 28, 2025. CAV (unpublished opinion) (Frucci). From the Circuit Court of the City of Charlottesville (Worrell II). Margaret Hoehl O’Shea, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on briefs), for appellant. Lin Weeks (Gabriel Rottman; University of Virginia School of Law First Amendment Clinic, on briefs), for appellees. VLW 025-7-308. 16 pp.