TRANSPARENCY TUESDAY: Public access gets mugged in disputes over police booking photos

There’s nothing “private” about what your face looks like, and there’s nothing “private” about being arrested for a crime. Yet journalists seeking copies of police booking photos are at times encountering stiff resistance from law enforcement agencies.

Records kept by all government agencies — including police departments, sheriff’s offices and jails — are assumed to be publicly available unless a specific statutory exception applies. Mug shots have been routinely accessible by the news media for many decades (and indeed, police themselves frequently distribute photos of wanted fugitives to the media to enlist the public’s aid).

When a Florida newspaper wanted to publish the mugshot of a prominent former police major indicted on racketeering charges, the county commission refused to release it. The commission took the issue to Florida Attorney General Pam Bondi for guidance, and on June 8, Bondi’s office issued an advisory interpretation that says Florida law imposes no duty to keep mugshots confidential. In other words, a Florida agency can decide to release or withhold a booking photo at its discretion.

The federal courts of appeal are split over whether the Freedom of Information Act (“FOIA”), which applies to agencies of the federal government including U.S. Marshals and the federal prison system, requires the release of mugshots.

The Sixth U.S. Circuit Court of Appeals has said that mugshots are a matter of public record. But in a pair of more recent rulings, the Tenth and Eleventh U.S. Circuit Courts of Appeals have decided otherwise.

Last year, the Atlanta-based Eleventh Circuit rubber-stamped a district court’s decision that denied a freelance journalist access to booking photos taken by federal marshals after arresting a suspect on charges of securities fraud. The court applied the “personal privacy” exemption of the federal FOIA, finding that the public’s interest in disclosure was outweighed by the arrestee’s privacy concerns:

[A] booking photo does more than suggest guilt; it raises a unique privacy interest because it captures an embarrassing moment that is not normally exposed to the public eye.

However, the privacy interest in the Karantsalis case was especially weak, because the person in the photo was not just accused but convicted of securities fraud after entering a guilty plea. If the public believed Luis Giro to be unsavory, it would probably be because he admitted ripping off investors in a Ponzi scheme, not because his picture was badly lit.

In February of this year, the Tenth Circuit agreed that federal agencies need not honor FOIA requests for booking shots. In World Publishing Company v. Department of Justice, the court found that the Tulsa World was not entitled to mugshots of federal detainees, because the public interests served by disclosure were “speculative” in comparison to the impact on privacy.

Influenced by the World Publishing decision, at least one Oklahoma prosecutor’s office recently changed its policy and stopped making arrest photos available — even though federal FOIA rulings don’t apply to state agencies.

What’s remarkable about this phenomenon is its utter lack of consistency. At the same time judges are concluding that there is an overriding privacy interest in booking photos, law enforcement agencies are cooperating with news organizations to make galleries of mugshots (even shots of those facing relatively minor and nonviolent offenses) viewable online as a “shaming” tactic.

A countervailing privacy argument can readily be made. Because so many people have identical or sound-alike names, “Al Smith’s” neighbors may hear a television news report and jump to the wrong conclusion — a conclusion easily dispelled by displaying the real Defendant Smith’s likeness.

And seeing a suspect’s face can prompt witnesses with valuable information to come forward — a benefit that courts should more carefully weigh before jumping to the conclusion that privacy trumps the public’s right to know.