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Saturday, August 1, 2015

Another VSP FOIA Denied: Has Virginia EVER Told its Registered Sex Offenders (RSO’s) When New Restrictions and Regulations Become Law Other than They Were Retroactively Re-Classified?


As most readers know I have previously posted (http://goo.gl/kOo7oN , http://goo.gl/wQemdG  ) that Virginia fails to notify its Registered Sex Offenders (RSO’s) of new laws and even current laws (the Do’s and Don’ts) that they are required to abide by even though other states do in fact advise their RSO's of their legal obligations. 

I have heard from many of you over the years that when the law changed about dropping off and picking up your child from school (on school property) that you were not notified of the new prohibition that applied to you AND that it became a felony.

I know for a fact that back in 2011 when HB2066 (Bell) and SB1185 (Norment) § 18.2-370.5. Sex offenses prohibiting entry onto school property; penalty became law on July 1, 2011 banning most (Violent) Registered Sex Offenders from stepping one foot onto a school bus or from attending any school-sponsored activity on non-school grounds even if they child is a student that no RSO’s were notified by the Virginia State Police (VSP) of this change in their legal requirement.  

So I wondered if the VSP has EVER notified (before I became an advocate in late-2008) non-incarcerated RSO’s of new legal restrictions, regulations or requirements. Other than those Offenders who were retroactive re-classification via legislation in 2006 and 2008 from Non-Violent to Violent, they were notified only because their VSP re-registrations were increased from once per year to 4 times per year and they became “lifers” with no opportunity to ever petition for removal from the VSP Registry. 

How could I get an official answer ‘yes’ or ‘no’ have any other VSP notices ever been sent out when Virginia law changed for our RSO’s?  

Well a Freedom of Information Act request would tell me, but almost every FOIA I’ve ever submitted to the VSP over the last 7 years has been denied (http://goo.gl/CVXNpY , http://goo.gl/06LxnL) even if the very same request was granted to Virginia Professors doing research or National Child Advocate groups. 

So I decided why not try a new FOIA, maybe this time I wouldn’t be denied after this request has NOTHING to do with offender’s information, which is supposed to be the reason for a FOIA denial per the allowed exemption.


Here is an edited version of my FOIA email to the VSP on July 21, 2015: 

Lt. ______ ______, 

I am looking for some information that only the VSP would know as they are the sole monitor and manager of Virginia’s Registered Sex Offenders.  

It’s pretty straight forward and as you can see the 5 requests are similar with the only difference being the year and the change in law. 

As the requests are NOT direct data from the VSP Registry I don’t believe my request would be “exempt” as many past FOIA requests that I have made have been claimed to be. 

Were the non-incarcerated Registered Sex Offenders notified by the VSP of the 5 below changes in their legal requirement to register as a Sex Offender? 

  • If they were notified, was it before the law took effect or after?
  • If they were notified was it in-person, by phone, by regular mail or certified mail?
1-     In 2006 when SB559 (Stolle) § 9.1-903. Registration procedures became law on July 1, 2006 decreasing the time a Registered Sex Offender had to update their residence, employment, vehicle and telephone data from 10 days to 3 days.

2-    In 2007 when HB2749 (Hurt), SB1065 AND SB1071 (both McDougle) § 9.1-903. Registration procedures became law on July 1, 2007 adding the requirement to register all email addresses and Internet identifiers within 30 minutes or creating or deleting the account. 

3-    In 2007 when HB2344 (Bell) § 18.2-370.5. Sex offenses prohibiting entry onto school property; penalty was created and became law on July 1, 2007  banning most (Violent) Registered Sex Offenders from being on school property even if they child is a student. 

4-    In 2008 HB223 (Cosgrove) and HB705 (BaCote) § 18.2-370.2. Sex offenses prohibiting proximity to children; penalty became law on July 1, 2008 adding Playgrounds, Athletic Fields and Gymnasiums to the “within 100ft.” prohibition. 

5-    In 2008 when HB567 (Crockett-Stark) § 18.2-370.5. Sex offenses prohibiting entry onto school property; penalty was created and became law on July 1, 2008 expanding from the current “during school hours” to also includeand during school-related and school-sponsored activities” banning most (Violent) Registered Sex Offenders from being on school property in the evenings or weekends even if they child is a student. 

Sincerely,  

Mary Devoy 

I received an answer from the VSP on July 31, 2015 and guess what?  

Yep, they denied my FOIA! 

Here is there full email reply: 

Ms. Devoy,  

The Department of State Police sends a letter to any offender who has a change in classification.  In order for me to determine if letters were sent to offenders when the law changes occurred  in 2006, 2007 and 2008, it would require me to retrieve information from the offenders files.  As you are aware from previous responses from the Department,  pursuant to §2.2-3706 (H), information and records contained in the Virginia Sex Offender and Crimes Against Minors Registry (Registry), Chapter 9 of Title 9.1 (§9.1-900 et. seq.), are excluded from the provision of FOIA. Your request is therefore denied on the cited grounds. 

I trust this information has been of assistance.

Lieutenant ______   ______
 

My FOIA inquiry DOES NOT require them to “retrieve the information from (individual) offender’s files”! 

The VSP knows if they have EVER drafted, printed, stuffed and mailed notices of changes in law to our RSO’s because it would take man-power and money to do so. 

All they needed to say was ‘NO” but they won’t say it, instead they have hidden behind a Virginia FOIA exemption statute. 

Why do I even want to know this? 

What does it even matter? 

Well EVERY year the Virginia Legislature and Governor pass new laws that go into effect on July 1st 

New Laws are NOT supposed to be applied retroactively and New Laws apply to EVERY citizen in the state, not to a select segment. 

But NOT Sex Offender Laws! 

Sex Offender Laws are applied retroactively (a violation of ex post facto). 

Sex Offender Laws do NOT apply to every citizen but ONLY to Registered Sex Offenders. 

Sex Offender Laws are NOT intuitive; something that is completely harmless like dropping your child off at school or gymnastics practice which was legal one year is a Felony the next year. Not for your spouse but just for you (the RSO) and yet the State of Virginia just can’t seem to be bothered to advise you of this very important change before the law goes into effect OR even after. But if you violate that new law, you can be sure the State of Virginia will waste no time starting an investigation and filing charges against you. 

Sex Offender Laws that are violated.... require no criminal intent and ignorance of the law is not an accepted defense. 

And ALL Sex Offender Laws are felonies, even if the conviction that placed that person on the VSP Registry was a misdemeanor. 

When a Virginian is under VADOC Probation they receive a complete list of rules that is not a 44-page list of legal statutes but an easily understandable and complete list of Do’s and Don’ts that the Probationer must sign to acknowledge receipt. Then if the Probationer breaks a rule, they face the legal consequences for the violation. If the Probation Officer adds additional restrictions or removes some at a later date then a new list of rules is reviewed and the Probationer signs the new list and any violation will result in criminal charges. 

If a law (that originally required a fiscal impact) is important enough for the Virginia Legislature to pass, is it NOT equally important to inform those citizens it is intended to manage? 

States like Georgia, North Carolina, Kentucky, Illinois & Indiana (just to list a few) advise their Registered Sex Offenders of their legal obligations at every re-registration and of new changes in law each year. 

It is inexcusable that for the last 15+ years the Virginia State Police has failed to review the current restrictions and regulations with our RSO’s during re-registrations OR to notify our RSO’s when new retroactive laws have gone into effect! 

Every time the Virginia Legislature passes a new restriction or regulation for Registered Sex Offenders, they need to understand that the people who really need to know about the new restriction or regulation have no idea it even exists because the VSP isn’t required to advise them!  

It’s time Virginia review the legal list of restrictions at re-registrations and when a new goes into effect on July 1st a certified letter should be sent 2 weeks prior notifying those it applies to. Otherwise the state is setting these citizens who are just trying to survive and provide for their families up for arbitrary felonies. 

If you agree the VSP should have to notify RSO’s when a new law that is directed at them has been implemented, please email or call your one State Delegate and your one State Senator and ask them to sponsor a bill next session requiring such notification.

Mary Devoy