11. Mug shots.

In 2007, a Maryland attorney general opinion concluded that mug shots are presumptively open under the public information act.  In the opinion, the attorney general addresses the question of whether mug shots fall under the definition of Maryland Criminal History Record Information – and therefore not subject to release.  See 92 OAG 26 (2007).  Mug shots are not mentioned in the CHRI statute as being inherently included or excluded from the CHRI definition.  Md. Code, Criminal Procedure § 10-201.

The AG reasoned that the mug shot is more analogous to an investigatory record than a criminal history record because it is used during an investigation and kept for possible future investigations.  92 OAG 26 (2007).  As such, mug shots fall under the purview of SG § 10-618(f).  Id.  Therefore, mug shots are open to inspection “unless the custodian can articulate a reason why it would be ‘contrary to the public interest’ to allow inspection of the photograph.” Id; SG § 10-618(a).  The opinion states that “[i]n many, if not most instances, there will be no public interest justifying a refusal to disclose a photograph,” but that there may be times where the public interest may demand the withholding of a mug shot.  92 OAG 26 (2007).  Factors that will be considered include whether the mug shot would reveal a person’s “past encounter with law enforcement” or instances where charges were ultimately dropped or if the photograph depicts particularly embarrassing circumstances or if it may imping on the right of a fair trial or if it may affect an ongoing investigation or put an undercover investigation at risk.