Access to mug shots gets close look across the country

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Emily Grannis

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Sites that sell mugshots are under fire nationwide.

In response to the increased posting of mug shots online, particularly on websites that charge individuals to remove the photos from the site, state and federal officials have been working to limit public access to mug shots. Some of these efforts have come through legislation introduced at the state level, while others have been agency decisions at the federal level.

Federal and state officials have argued that publishing a person’s mug shot before they are convicted of a crime, or continuing to publish it once their record has been expunged, creates a lasting and unfair impression of them.

“The unique and embarrassing nature of mug shots makes their disclosure at least as invasive as the disclosure of routine law enforcement records,” the U.S. Department of Justice argued to a court last month. “Moreover, the dramatic technological changes over the last 20 years have heightened the privacy interest at stake.”

Journalists, however, have continued to fight for access to mug shots, even in the face of changes to state laws and police department polices at the local, state and federal levels.

Mark Caramanica, a lawyer with Thomas & LoCicero who has done extensive freedom of information work, said FOI laws should cover mug shots in order to present the public with a full picture of the criminal justice system.

“The push to restrict public access to mug shots frustrates the ability of the public to exercise oversight over the entire criminal process and remain informed about who the government takes into custody, and under what conditions,” he said. “An arrest is a public event and people should be extremely skeptical of government attempts to argue that certain aspects of our criminal justice system are essentially private matters.”

State changes

Most of the changes to mug shot FOI policies have come at the state level as legislatures try to combat websites that charge people to take down their mug shots. Some states have approached the issue from the narrow perspective of punishing that particular practice, while others have attempted sweeping changes to their FOI laws.

In the past two years, 21 states and the District of Columbia have considered legislation adjusting access to mug shots. Of the more than 30 bills that have been introduced, 18 would have specifically amended state FOI laws. (Only four of those amendments would have increased access to mug shots.)

The most common provision in these proposed bills has been a prohibition on charging a fee for the removal of a mug shot from a website. Twenty-three of the bills introduced since 2012 would have banned that practice. Many would have required the requester to sign a statement saying they would not try to profit from the mug shot before receiving the records.

Seven states have actually passed laws changing the rules about accessing and publishing mug shots. Generally, there are three provisions states have worked with to restrict mug shot publication: who may get access, whether a site can charge fees to take a mug shot down, and whether an individual has the right to require a site to take a mug shot down.

Oregon and Wyoming both give individuals the right to ask a website to remove their mug shots if they were acquitted, had their charges reduced, or had their record expunged. Websites must take those photos down for free.

Texas allows sites to charge up to $150 to take down a mug shot, but sites cannot publish mug shots if the publisher knows the record has been sealed or expunged.

Georgia, similarly, allows individuals to request that their mug shots be removed from websites for free. The statute has one very important exemption, though: traditional media outlets engaged in the “publication or dissemination” of news do not have to remove mug shots from their sites.

In Illinois, it is now illegal to ask for or accept payment to “remove, correct or modify” information about a person’s criminal record, but there is no requirement in Illinois that a site take a mug shot down. Missouri has a similar law.

Colorado and Utah both take the approach of requiring a requester to promise not to publish the mug shot anywhere that would charge someone to take it down.

In a recent article in the ABA publication Communications Lawyer, Caramanica and Deanna Shullman argued that several versions of these mug shot laws could present real problems for journalists.

“Any law that absolutely mandates removal of criminal record information simply because an arrestee was acquitted or otherwise not convicted of the crime for which he or she was arrested certainly invades an editor’s prerogative to determine what information is newsworthy and worthy of publication,” they wrote. “Further, these laws can present an undue burden on publishers to continually monitor criminal prosecutions for all persons for whom they have published a mug shot.”

Federal developments

At the federal level, the U.S. Marshals Service is responsible for maintaining mug shot records. It was the Marshals Service’s long-standing policy to deny requests for mug shots under the Freedom of Information Act on the theory that they were law enforcement records the release of which would be an unwarranted invasion of personal privacy.

Then, in 1995, the U.S. Court of Appeals for the Sixth Circuit, which rules on federal cases from Kentucky, Michigan, Ohio and Tennessee, issued a decision requiring the Marshals Service to release mug shots. The decision, called Free Press I because it was the first in a series of mug shot FOIA cases the Detroit Free Press has brought, held that mug shots are releasable under FOIA when there are ongoing proceedings against someone who has been indicted, named publicly and appeared publicly in court.

After Free Press I, the Marshals Service announced it would release mug shots held by the Service’s Sixth Circuit offices, but not mug shots held in other circuits. In 2005, the Marshals Service again refused to release mug shots, claiming a Supreme Court case that restricted access to autopsy photos also applied to mug shots. In what has come to be known as Free Press II, a court in the Sixth Circuit said the Service had to continue releasing mug shots.

Between 2005 and 2012, two other circuit courts held that the Marshals Service did not have to release mug shots in their states. Then at the end of 2012, the Marshals Service announced that it would no longer follow the Free Press line of cases and has since refused to release any mug shots from any office in the country. The Detroit Free Press is again suing the department, and is heading back to the Sixth Circuit.

Herschel Fink, who has represented the Free Press in the mug shot battle since it began in 1993, said the Marshals Service’s has “consistently exhibited a contemptuous attitude toward the Sixth Circuit and Free Press I.” Fink said he thinks the proliferation of profit-aimed mug shot websites is part of what is driving the Marshals Service to challenge Free Press I again now.

“The gnashing of teeth or whatever over these sites that extort money for taking down your mug shot, that should not be a reason to re-examine the Sixth Circuit’s finding that there is just absolutely no privacy interest at all in current mug shots,” he said. “The abuse of the FOIA . . . is just not an appropriate consideration when deciding whether there’s a privacy interest here.”

The Marshals Service has asked the full Sixth Circuit to hear the case, arguing the nature of the Internet should change the privacy calculation.

“The error of [Free Press I] is more evident now than ever before, given the way the Internet permanently preserves visual reminders of past actions,” the department wrote in its latest brief. “Properly recognizing that individuals have some ‘non-trivial’ privacy interest in mug shots and that there is no cognizable public interest in compelling disclosure, DFP I should be overturned.”

The Detroit Free Press has opposed a hearing before the full circuit court, and, Fink said, “enough is enough.”

“The criminal justice process is quintessentially public,” he said. “This is just one element, and frankly a very important element, of a defendant’s identity: Who has been charged with a crime . . . It’s just not private information. What your identity is as a defendant in the criminal justice system is not private.”