Thursday, December 13, 2012

AG: Mug shots are public records whose release isn't an invasion of privacy

Police booking mug shots are public records that must be released in electronic format if kept that way by the law enforcement agency, Oklahoma Attorney General Scott Pruitt said in a formal opinion Thursday.
Because mug shots are public records, releasing them doesn't constitute an invasion of privacy even if the person was acquitted, Pruitt said.
Public access to mug shots became an issue in June when the Cleveland County district attorney's office briefly said the photos taken at the county jail would not be released to the public unless there was a legitimate "law enforcement purpose."
Assistant District Attorney David Batton justified the decision as protecting the privacy of innocent people who've been arrested and because the photos were being requested by publications that Batton apparently didn't like.
Batton also argued that releasing the mug shots could leave county officials vulnerable to lawsuits. He also contended that Oklahoma should abide by a federal appellate decision limiting the release of such photos under the federal Freedom of Information Act.
Cleveland County District Attorney Greg Mashburn reversed Batton's opinion about a week later and dismissed him.
Pruitt's opinion refuted Batton's arguments.
Mug shots are public because the Open Records Act requires law enforcement agencies to make available the descriptions of people arrested, Pruitt said. (See Okla. Stat. tit. 51, § 24A.8(A)(1))
"The inclusion of a picture within the term description has long been recognized by law," Pruitt said. "Because a mug shot is one of the best physical descriptions on an arrestee, it is a type of record that must be disclosed."
Pruitt said the mug shots must be given to "any person" who requests them. Electronic copies must be provided if requested and the law enforcement agency keeps the photos in that format.
An agency isn't required to convert the photos into an electronic format but may charge a reasonable fee for doing so, Pruitt said.
Simply releasing the photos "would not constitute an invasion of privacy because mug shots are public records, required by law to be disclosed upon request," Pruitt said.
"By itself, the act of disclosing a mug shot is not enough to constitute an invasion of privacy even if the person has been acquitted," Pruitt said. "This is because a mug shot taken during the booking process does not show that the person has been convicted of a crime but only that the person has been arrested and booked into jail.
"An invasion of privacy may occur when the disclosure of the mug shot is accompanied by a knowing or reckless false communication that the person in the mug shot has been convicted of a crime."
Pruitt emphasized that the opinion applies only to the mug shots of adults, not to confidential law enforcement records of juveniles. However, he noted that if the juvenile loses that confidential status, the mug shot is subject to the Open Records and his opinion.
The opinion was requested by Sen. Ron Justice, R-Chickasha, and State Sen. Jim Halligan, R-Stillwater.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome. Differing interpretations of open government law and policy are welcome.

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