11. Mugshots

A mug shot in a police computer database is a public record.  Op. Att'y Gen. Ala. No. 2004-108, 2004 Ala. AG LEXIS 35 (Apr. 1, 2004).

State law requires each sheriff to keep in the sheriff’s office, subject to public inspection during office hours, a well-bound book in which must be entered a description of each prisoner received into the county jail. Ala. Code § 36-22-8.

There is no apparent reason why mug shots should not be disclosable pursuant to the state Public Records Act, except to insofar as a records custodian can successfully argue the applicability of one of the provisions of AS 40.25.120(a)(6), such as that production of these records could reasonably be expected to interfere with enforcement proceedings (6)(A), or could reasonably be expected to constitute an unwarranted invasion of the personal privacy of a suspect, defendant, victim, or witness, (6)(C). Note that in the context of a challenge to the Alaska Sex Offender Registry Act, with respect to the state's explicit constitutional right of privacy, the Alaska Court of Appeals noted the constitutional protection of an individual's privacy depends on the factual context and the competing interests between society and the individual.  The court said that at least in the context of convicted sex offenders, the offender's assumed subjective expectation of privacy in biographical information gathered and released pursuant to the statute must yield to society's public safety interest. Patterson v. St., 985 P.2d 1007 (Alaska App. 1999). The court found that any subjective expectation of privacy held by the sex offenders in matters already of public record, such as details of conviction or date of birth, or in his physical appearance — as represented by his photograph, or in his employer's address, was not an expectation society would recognize as reasonable. Id. Comp. Doe v. State, 183 P.3d 999, 1002 (Alaska 2008) (referencing posting of convicts’ photos on internet as part of ASORA implementation).

Mug shots are public records and thus presumed open for inspection and copying.

There is no statutory or case law on this issue. Because there is no specific statutory provision prohibiting the release of mug shots, they would likely be subject to disclosure because the FOIA is to be interpreted liberally, and exemptions must be specific. Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991). Inmate records created by the Department of Corrections are exempt from the FOIA, so a mug shot taken for such records would be exempt. Ark. Code Ann. § 12-27-113.

Access appears to be discretionary.  See Cal. Ops. Att’y Gen. 03-205 (2003)(sheriff has discretion to furnish copies of mug shots to public or media but once released a copy must be made available to all who make request). In California, law enforcement agencies routinely make mug shots available to the press. Indeed, in People v. McCloud, 146 Cal. App. 3d 180, 182, 194 Cal. Rptr. 75 (1983), the only published California case regarding mug shots, the court recognized that mug shots are routinely made available to the press and public and that this practice provides a variety of benefits to the public and the law enforcement system, as evident from the arrests at issue which “were brought about through the publication in a daily newspaper, of their mug shots taken after some earlier arrest.” The McCloud case does not discuss access to mug shots pursuant to the CPRA. It holds instead that mug shots are not part of the criminal summary history (“rap sheet”), which is a confidential record under Penal Code Section 13300.

Open. The official website of the Colorado Judicial Branch recognizes that "mug shots" a/k/a "arrest photographs" are "records of official action" that must be disclosed.

There are no specific provisions or reported court decisions on these records. Therefore, they should be treated as any other record and are presumed open unless a specific exemption applies.

Not specified.

Not specifically addressed.

Mug shots are subject to public inspection unless they are exempt criminal intelligence information or are otherwise exempt. Fla. Stat. § 119.071(2)(c)(1) (2020).

The Act permits the release of booking photographs—mug shots—only in accordance with certain statutory procedures designed to prohibit their use on websites that permit removal or deletion in return for payment of a fee.  See O.C.G.A. § 50-18-72(a)(4); § 35-1-19.

Police Department mug shots of arrests that have been expunged by order of the Attorney General are protected from disclosure under Haw. Rev. Stat. § 92F-13(4). Police Department Mug Shots, OIP Op. Ltr. No. 03-09 (June 26, 2003). However, mug shots may not be withheld due to the possibility that an expungement order may be obtained in the future. Id. Haw. Rev. Stat. chapter 846, which covers disclosure of criminal history record information, does not restrict the disclosure of mug shots if the arrest is less than one year old, if active prosecution of the charge remains pending, or if a conviction results. If the mug shot is disclosable, state identification numbers and dates of arrest contained are to be disclosed as well. Police Department Mug Shots, OIP Op. Ltr. No. 03-09 (June 26, 2003).

Mug shots are routinely made available to the public and are often available on law enforcement websites.

Generally open.  See National Ass’n of Criminal Defense Lawyers v. Chicago Police Dep’t, 399 Ill. App. 3d 1, 13-14, 924 N.E.2d 564, 575, 338 Ill. Dec. 358, 369 (1st Dist. 2010) (ordering disclosure of faces in photographic police lineups after personal identifying information was removed from photos).

Law enforcement may not publish mugshots on social networking sites in connection with “civil offenses, petty offenses, business offenses, Class C misdemeanors, and Class B misdemeanors,” unless it is to find a missing person, fugitive, person of interest, or a person wanted in relation to crimes other than those listed. 5 ILCS 140/2.15(e).

There is no statutory or case law addressing this issue. Some police agencies have invoked the exception for law enforcement investigatory records, which under Ind. Code Section 5-14-3-4(b)(1) may be provided or denied at the agency’s discretion.

See generally Iowa Code § 22.7(5).

Mug shots are not necessarily subject to disclosure because they are generally considered to be criminal investigation records that a law enforcement agency may choose not to disclose pursuant to K.S.A. 45-221(a)(10).  Kan. Att’y Gen. Op. 1987-25.

Generally open. In 2016, the General Assembly enacted a specific provision in the Open Records Act to prohibit use of mug shots for the commercial purpose of placing the mug shot on an internet website and charging money to remove it. See Ky. Rev. Stat. 61.8746.

A statute adopted in 2022 directed primarily to websites and publications that display mugshots and charge people to remove or delete them generally exempted mugshots from the Public Records Law except for persons accused of specified crimes of violence and fugitives.  See La. Code of Criminal Procedure art. 234.

Mug shots are generally made available. 16 M.R.S.A. § 706 (record of persons detained following arrest); 16 M.R.S.A. § 708(1) (wanted posters, announcements, and lists).

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 Op. Att'y Gen. 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 Op. Att'y Gen.26 (2007).  As such, mug shots fall under the purview of § 4-351(a).  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; § 4-351(b).  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 Op. Att'y Gen.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.

Mug shots taken prior to the initiation of criminal proceedings are public records and do not fall under the CORI exemption from public records. SPR opinion letter, Aug. 27, 2010, as reported in L. Parnass, “State Sides With Northampton, Mass. Newspaper in Mug Shot Flap,” New England First Amendment Center, Sept. 26, 2010.

A booking photograph or “mugshot” of a county jail inmate is a public record under FOIA. Disclosure of these photographs cannot be withheld on the basis of the privacy exemption. Patterson v. Allegheny Cty. Sheriff, 199 Mich. App. 638, 502 N.W.2d 368 (1993). Booking photographs are not entitled to exemption from disclosure under FOIA where individuals involved have been arrested, charged in open court and awaiting trial for bank robbery; in such cases, the booking photograph reveals no information that would constitute an unwarranted invasion of privacy. Detroit Free Press, Inc. v. Oakland Cty. Sheriff, 164 Mich. App. 656, 418 N.W.2d 124 (1987). The photograph of a convicted individual contained in the file arrest must, upon request, be disclosed. Op. Atty. Gen. Nov. 14, 1979 Op. 5593. If the release of a photograph would constitute an unwarranted invasion of privacy, a public body may refuse to permit a person access to the photograph. Id.

While access may be delayed to assist in an investigation, booking photographs are considered public data under the Act. Minn. Stat. § 13.82, subd. 26.

Public, if classified as part of the “identification” of the person charged. §§ 25-61-3(e), 25-61-12(2)(b).

No specific provision.

Generally, mug shots are regularly disclosed. However a minority of county prosecutors take the position that mug shots are confidential criminal justice information.

Mug shots are public.  Neb. Rev. Stat. §29-3521 (Reissue 2014).

See Donrey of Nevada, Inc. v. Bradshaw, 106 Nev. 630 (1990).

Neither the Statute nor case law addresses this issue.

Executive Order 69 (Whitman 1997) provides that fingerprint cards, plates and photographs and other similar criminal investigation records that are required to be made, maintained or kept by any State or local government agency are exempt from disclosure under OPRA.

Mug shots are public.  See NMSA 1978 § 14-2-1(A)(4).

The New York Committee on Open Government has held that mug shots should be disclosed under FOIL.  See Comm. on Open Govt. FOIL-AO-15904 (2006).  Moreover, in Planned Parenthood of Westchester v Town Bd. of Town of Greenburgh, 154 Misc 2d 971, 587 NYS2d 461 (N.Y. Sup. Ct. Westchester Cty. 1992), it was found that the disclosure of mug shots did not constitute an unwarranted invasion of privacy.  However, in Prall v. N.Y.C. Dep't of Corr., 40 Misc. 3d 940, 946, 971 N.Y.S.2d 821, 825 (N.Y. Sup. Ct. Queens Cty. 2013), it was determined that the mug shots sought were protected from disclosure under Criminal Procedure Law 160.50 and N.Y. Pub. Off. Law § 87(2)(a).

Mug shots are not specifically addressed by statute. Photographs are included within the definition of “records of criminal investigations,” which may be withheld, but mug shots routinely are released in North Carolina.

Generally open. See N.D.C.C. § 44-04-18.7(2).

Mug shots of charged suspects are public records; mug shots of uncharged suspect may be subject to withholding under Ohio Rev. Code § 149.43(A)(2)(a). State ex rel. Williams v. City of Cleveland, No. 61762, 1992 WL 390046, at *2 (Ohio Ct. App. Dec. 24, 1992).

Mugshots are a physical description of an arrestee and therefore a law enforcement record under the Act. Further, law enforcement agencies must provide electronic copies of mug shots if they keep mug shots in electronic format and a requestor specifically requests the mug shots in electronic format. 2012 OK AG 22.

ORS 163A.225 exempts pictures of juvenile sex offenders from disclosure. There appears to be no other statutory or case law specifically concerning mug shots. ORS 807.115 addresses disclosure of duplicate images of DMV photographs.

The Law is silent on this type of record.

There is no statutory or case law addressing this issue.

Public records subject to law enforcement exemptions.

Restricted access. SDCL §§23-5-7 and 1-27-1.5 (5).

Open.

In cases that are still under active investigation, Section 552.108 may except mug shots from disclosure. Op. Tex. Att'y Gen. No. 0R2011-02525 (2011). Several Attorney General decisions have concluded that when the mug shot was taken in connection with an arrest for which the arrestee was subsequently convicted and the case is closed, information may be withheld only if its release will unduly interfere with law enforcement or crime prevention. Tex. Att'y Gen. ORD-616 (1993). However, in Holmes v. Morales, the Texas Supreme Court found that Section 552.108's plain language makes no distinction between "open" and "closed" cases, ultimately deciding that the Act categorically excepts the Harris County District Attorney's "closed" litigation files from disclosure. 924 S.W.2d at 925. Thus, the Court rejected the Attorney General's construction of Section 552.108, that a prosecutor can withhold information only if its release "will unduly interfere with law enforcement or crime prevention." Id. at 923-25. In reaching its decision, the Court noted that, while the federal Freedom of Information Act specifically includes an exception for materials which, if produced, would "interfere with enforcement proceedings," the Act does not impose such a limitation on the broad scope of Section 552.108." Id. at 925.

A jail booking photograph is a record under GRAMA. See KSL-TV v. Juab County Sheriff’s Office, No. 98-01 (Utah State Rec. Comm. Feb. 20, 1998). Because such records are not specifically exempted under GRAMA, they are presumed public. See id.

Mug shots are accessible under the Public Records Act.  The Vermont State Police website has a link to request t a mug shot taken by the Vermont State Police: https://vsp.vermont.gov/public.  When making a mug shot request, the Vermont State Police require that you include the name, age, date of arrest, and the barracks from which the suspect was arrested.

Adult arrestee photographs taken during intake or booking must be released, except for any delay that is necessary to avoid jeopardizing an investigation of a felony crime. Once the necessary no longer exists, the exemption does not apply. Va. Code. Ann. § 2.2-3706.A.1.

Mugshots are exempt from disclosure. Cowles Publ’g Co. v. Spokane Police Dep’t, 139 Wn.2d 472, 987 P.2d 620 (1999).

In practice, most public bodies disclose mugs shots upon FOIA request.

A mugshot is a public record. State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523, 549 N.W.2d 253 (Wis. Ct. App. 1996).

Mug shots are expressly open to public inspection.  Wyo. Stat. 7-19-106(m)(ii).