As more personal data becomes available over the internet through governmental action, media outlets and consumer initiated transactions, there is growing concern about what records should be released and how the information is used. Therefore, the goal of this article is to understand whether there is a legitimate public interest in the publication of official records. It will examine what information constitutes an official record, whether mugshots are considered official records that can be released, legitimate usage, as well as how and why the public might be granted or denied access to the information in such records under the Freedom of Information Act.
Official records are legally recognized documents created and maintained in the ordinary course of business with an enforceable quality of establishing a fact. They include public registers, court records, birth certificates, marriage licenses, death certificates, land deeds, arrest records, educational transcripts, professional licenses and military records. Most official records can be obtained with permission, third-party release, or proper request under the Freedom of Information Act, if they are not already public documents. If the official record is an arrest record, the mug shot could be considered part of the arrest record in some jurisdictions. Even if a mug shot is not officially considered part of an arrest record, it is generally a photographic record in the public domain and the laws of most jurisdictions allow you to request and obtain these types of records.
Official records and mug shots can be news and news is always a legitimate qualifying public interest. In fact, newsworthiness is ordinarily the most important issue in the publication of matters that may fall within spheres of personal privacy like official public records and mug shots. These items are fair use if they are legitimately obtained or in the public domain and newsworthiness is a legitimate defense. Many courts hold that publishers have a constitutional privilege to publish truthful information on a matter of legitimate public concern. The bottom line is that ordinarily you cannot be held liable for disclosing public records so long as those facts are of legitimate public concern.
Of course, defining what is a matter of legitimate public interest is a bit complicated. Generally, courts are reluctant to second-guess the media, so they take a broad view of newsworthiness. Courts have held that there is a legitimate public interest in nearly all recent events, as well as in the private lives of prominent figures such as actors, musicians, professional athletes and politicians. Moreover, newsworthy publications include those “concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal and many other similar matters of genuine, even if more or less deplorable, popular appeal.” Restatement (Second) of Torts § 263D cmt.
The legal protection for newsworthy publications extends far beyond dissemination of “news” about current events or commentary on public affairs. It also covers “information concerning interesting phases of human activity and embraces all issues about which information is needed or appropriate so that individuals may cope with the exigencies of their period.” Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. 1980). Thus, courts have found to be newsworthy articles dealing with polygamy, an Indian rope trick, Acai berry diets, peculiar personal characteristics of Bush campaign volunteers and the whereabouts and living conditions of a former child prodigy. There is no reason the newsworthy publication of legitimately released official records and mug shots should enjoy less protection than these subjects.
In Cox Broadcasting v. Cohen, 420 U.S. 469 (1975), the U.S. Supreme Court held that the First Amendment to the Constitution prohibits states from imposing a penalty on the press for publishing accurate information obtained from a public court record. As a result of this case, most states recognized an absolute privilege for publication of information found in a publicly available (i.e., not sealed) court record. While the case involved traditional media, there is no reason to believe that its reasoning and holding would not extend to non-traditional journalists and online publishers of electronic data.
Publication In the Name of Public Service
Official records are important because they give an instant picture of a person’s history and identity. Mug shots are also important because of their use as an investigative tool. Identification is often the hardest part of a police investigation. Besides lineups and show-ups, descriptions and photographs are the most common types of identification methods used in police procedure. Witnesses to crimes are frequently shown mug shots or photographs to identify or eliminate suspects.
The famous detective Allan Pinkerton is credited with inventing the mug shot in the United States. His firm, Pinkerton Inc. (formerly the Pinkerton National Detective Agency), first began using these types of photos on Wanted Posters during the period of the “Wild West.” In fact, two-thirds of the collection of the agency’s artifacts documents criminal activity from 1880-1910. See Library of Congress, The Pinkerton Agency. (2010). Retrieved October 12, 2011, from http://www.loc.gov/exhibits/treasures/trr079.html. Mug shots, also called booking photographs, are photographic records taken after a person is arrested for a crime. The accused takes one front view and one side view photo which is put into a mug book and entered into the agency’s database. Years ago, the accused would hold a placard with their name, date, booking ID and other data in the photos but now that records are digitized, this information is automatically appended to the photo when it is entered into the database. Law enforcement agencies use these pictures for identification with victims of crime as well as other investigative purposes. Sometimes, the media publishes official records and mug shots simply because the public has a right to know who the accused or convicted criminal is.
Publishing official records and mugshots can be a deterrent to committing crimes— if not entirely based on the person’s change of heart about breaking the law, at the very least because of the potential embarrassment. Many publications and websites dedicated to publishing this type of information hope that you will see the people posted and not want to get arrested and earn eternal notoriety by joining their ranks.
There are benefits to publishing official records and mug shots that benefit society. In fact, many law enforcement agencies release mug shots to the media to help with apprehending criminals. Moreover, publication of these records is a great way to inform the public about dangerous criminals in their area and it helps gets criminals off the streets. Case in point: Ferose Kerry Khan, a fugitive connected to one of the largest federal contracting scams in history originally came to police attention after being arrested based on a tip from a reader of The Washington Examiner. Khan was wanted on multiple charges, including felony drug trafficking, attempted bribery of a law enforcement officer and impersonating a police officer. Marshals arrested Khan after an Examiner reader saw his story and mug shot and called in.
Some law enforcement agencies acknowledge that the public’s assistance in locating wanted fugitives posted on online lists has been a great help. For instance, the Iron County Sheriff’s Office in Cedar City, Utah maintains an online list of the most-wanted fugitives from the county. The list includes mugshots, physical descriptions and information about the alleged crimes of those named in the list. The office gets hits all the time with tips from the public, plus the list acts as a tool for inter-agency cooperation since warrants for the fugitives are entered in a national law enforcement database. Thus, a traffic stop in another state can net one of their most wanted. With publication on the internet, the places where criminals can hide are few and far between.
Fifth Amendment & the Ethics of Publishing Official Records & Mug Shots
Official records and mug shots use to be the “dirty little secret” of the accused, never to see the light of day unless it was high profile enough for a news outlet. The difficulty of navigating the bureaucracy of a law enforcement agency to request copies of mug shots, and the “practical obscurity” of physically locating documents and information such agencies are charged with maintaining, was enough to keep your official record and mug shot relatively private.
But the Internet has changed that. Databases of official records and mug shots are not any different from other repositories of personal or sensitive information. While law enforcement agencies and federal laws essentially grant permission to use an official record or run the mug shot in news stories when they release the document to you, some limitations apply.
The Fifth Amendment protects personal privacy but not every invasion of privacy violates the privilege. In fact, the U.S. Supreme Court has never applied the Fifth Amendment to prevent otherwise proper acquisition or use of public records or documents. Official records and mug shots have permissible uses as public data. Even information that you voluntarily make public can fall into the public domain. The government already uses voluntary public data and photos posted on social media websites like Facebook and Twitter for investigative and data gathering on suspects. See Department of Justice Interim Response and presentation, “Obtaining and Using Evidence from Social Networking Sites,” (posted March 3, 2010) (providing guidelines for using Facebook, MySpace, LinkedIn and more).
One reason publication of official records and mug shots is controversial is because it is believed that the publishers are exploiting this information for entertainment or voyeuristic purposes, and not journalism. Maybe some of these websites and magazines are exploiting the people in these documents. The reality is that such publication does not have to be bona fide journalism to be valid and fair use. It simply has to be newsworthy and the public’s current appetite for seeing this type of information would suggest it is.
Another reason publication of this type of data is controversial centers on the legality of posting people who have been arrested but not convicted of a crime. Most sites post a disclaimer that all subjects are innocent until proven guilty but it has little impact on public opinion. Theoretically, there may be implications for the accused, if the charges are dropped or they are acquitted. However, the posting of their official records or mugshots is not any different than when conventional news outlets report on those charged with crimes before they are convicted. This is the way newspapers and television news traditionally covers crime and it may be the pretrial publicity that often ruins a person’s reputation, not the record or mugshot. This does not make the reporting of the original criminal charges or publication of documents like mugshots any less newsworthy.
The personal privacy issues do not outweigh the public’s interest in the criminal charges and adjudication. This is demonstrated by the fact that in many states, a plaintiff bringing a publication of private facts claim must show affirmatively that the facts disclosed were not newsworthy — i.e., they were not a matter of legitimate public concern. Official records, especially those of a criminal nature and mugshots would certainly be newsworthy.
Application of the Freedom of Information Act
It is true that “Congress granted the scholar and the scoundrel equal rights of access” under the Freedom of Information Act. Durns v. Bureau of Prisons, 804 F.2d 701, 706 (D.C. Cir. 1986), cert. granted, judgment vacated on other grounds & remanded, 486 U.S. 1029 (1988). The Freedom of Information Act (hereinafter “FOIA”), 5 U.S.C. § 552, requires the public disclosure of almost every federal agency record unless it is explicitly exempted. Congress specifically created nine exceptions which are meant to be narrowly construed by federal agencies to restrict public disclosure of information that could reasonably be expected to endanger broader societal concerns. See § 552(b). Federal agencies may exercise discretionary powers in regard to these nine exemptions and disclose information anyway if it would result no harm. Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979). The FOIA only applies to records created by Federal agencies and does not apply to any records held by Congress, the courts or state and local governments and their agencies. Every state has its own public access laws which should be referred to request access to state and local records.
Even when a requested document contains some information that falls under one of the exemptions, the federal agency cannot withhold the entire document; rather, it must release all non-exempt portions of the record with the location of deletions clearly identified, unless identifying the deletions would harm an interest protected by the exemption.
The FOIA has been used to request official records and mug shots of individuals arrested for federal crimes. These types of requests are analyzed under the personal privacy-protection decision-making process employed under Exemptions 6 and 7(c) of the FOIA. 5 U.S.C. § 552(b)(6), (7)(c), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. Exemption 6 protects information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” Department Of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 763 (1989). Exemption 7(c) only applies to information compiled for law enforcement purposes, and protects personal information when disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” § 552(b)(6). It is based on the premise that law enforcement records are inherently more invasive of privacy than the aforementioned “personnel and medical files and similar files.”
Privacy exemptions to the FOIA require a balancing test. In order to determine if official records are exempt, federal agencies — and ultimately the courts — balance the intrusion on personal privacy against the public’s interest in disclosure. The problem is that any change the courts make in defining “personal privacy” or “public interest” skews the balance, and will necessarily reverberate in greater grants or denials of information. Both exemptions, which protect “personal privacy,” should be construed narrowly to apply only to those individuals mentioned or depicted in the records in question.
Exemption 7(c) has become a rather complicated exemption, mostly because of recent court rulings that append a “supposed” common law right of survivor’s privacy to this exemption. In 1989, the U.S. Supreme Court created a new definition of public interest for use in evaluating FOIA requests and ruled that the only public interest that can be considered in the balance is the public’s interest in knowing what the government is “up to.” Reporters Committee, 489 U.S. at 749. The court severely limited access to government records (in this case “rap sheets”) involving individuals. The Reporters Committee and the late CBS newsman Robert Schakne sought public record information contained in criminal history rap sheets compiled by the FBI, but the justices ruled that there was a privacy interest in the “practical obscurity” of information distant in time and place. Privacy, according to the court, encompasses the right to control access to information about yourself (the personal privacy interests being protected was the direct subject of the record itself). This opinion is precisely the same one that would be later argued unsuccessfully by Allan J. Favish.
Yet, “practical obscurity” was not a valid argument at the time of this ruling and is certainly not true in this day and age when weighing public interest. While these access rights have traditionally been subjected to the “practical obscurity” of physically locating documents and information maintained among the voluminous paper files in courthouses located throughout the country, with the widespread use of electronic filing and imaging technology, however, court documents can now be easily accessed, copied and disseminated from locations outside the courthouse. The “[i]ncreased use of the Internet and other powerful databases—both in the judicial system and among the general public—is lowering the barriers to access for parties that have an interest in that information. Personal, often sensitive, information now may be accessed and manipulated from a distance…” Study of Financial Privacy and Bankruptcy, U.S. Justice Department, Treasury Department, and Office of Management and Budget (January 2001). Today the electronic availability of data applies to many official records including mug shots, which are not court documents.
Understandably, there must be a legitimate public interest in the disclosure of official records and mug shots that outweighs any other exempted interests. In addition to survivor’s rights, the problem of late is that recent case law seems to be unduly burdening requesters by requiring substantial proof that the information sought will be probative of an agency’s misconduct if that is the reason given for making the request. For example, the U.S. Supreme Court denied the release of photographs of the body of late deputy White House counsel Vince Foster, saying no public interest in disclosure outweighed the privacy interests of Foster’s survivors. National Archives and Records Administration v. Favish, 541 U.S. 157, 124 S Ct 1570 (2004). Foster, of course, was dead and had no privacy interest in the photographs. Foster’s autopsy report, if there had been one, would have been a public record. Allan J. Favish, who was supported by several media amici groups such as the Reporters Committee for Freedom of the Press and the American Society of Newspaper Editors, but lacked support from any large media corporations, contended that Foster’s survivors had no privacy interest under exemption 7(c) of the FOIA. Favish relied on well-established common law and previous Freedom of Information Act decisions to argue that the right of personal privacy allows individuals to control information about themselves, not about their dead relatives. Id. at 124 S Ct at 1576. The Ninth Circuit had already upheld that release of 4 of the 10 photographs in question was proper even after concluding that exemption 7(c) implicitly included a survivor-right-to-privacy protection that “extends to the memory of the deceased held by those tied closely to the deceased by blood or love”. Id. at 1575. The U.S. Supreme Court ruled that although the Ninth Circuit acknowledged the Foster family’s privacy interest and the overriding nature of the asserted public interest, it had failed to properly balance the two because it required no credible evidence showing actual government wrongdoing. Id. at 1581. Under the Supreme Court’s ruling in Favish, and its decision to protect the photographs at issue, a FOIA requester’s assertion of a public interest based on “government wrongdoing” now must meet a much higher standard. Id. at 1580-81; see also U.S. Department of Justice FOIA Post, “Supreme Court Rules for ‘Survivor Privacy’ in Favish” (posted April 9, 2004) (discussing the higher standard of compelling evidence, as well as a continued need for showing of Reporters Committee-type public interest even when requester successfully alleges government wrongdoing).
Remember Reporters Committee created a new definition of public interest for use in evaluating FOIA requests. Favish not only applies the same standard, but also goes above and beyond it. This means that as in any other case, an agency considering a Favish-type public interest argument must first consider whether there is a “qualifying” public interest in showing the operations or activities of the federal government (as opposed to a state or local government, for example), as required by Reporters Committee. See FOIA Update, Vol. X, No. 2, at 6-7 (“FOIA Counselor: Exemption 6 and Exemption 7(C): Step-by-Step Decisionmaking”); see also 124 S. Ct. at 1580 (reminding that any qualifying public interest “must [be] a significant one”). The only qualifying interest that can be considered is the public’s interest in the operations and activities of the government. This new definition is too narrow given that in Favish, the person about whom the information was sought was dead, and thus had no personal privacy interests. Instead, access to official records was being denied mainly due to the survivor’s rights of family members. It hard to argue that this was the right decision since nothing the legislation indicates that Congress intended to create or protect that particular interest. In this particular case, we are talking about criminal acts, and crime has almost always been an area of great public interest. Favish claimed conspiracy and that the autopsy report was altered; hence, the photos requested were to be examined to prove his theory. If he had compelling evidence, he would not have needed or been requesting the photographs in the first place. Even Justice Antonin Scalia noted that it “did not appear that the survivor’s privacy is being invaded – rather, it is their sensitivity. Surely they have an interest in not having their relative displayed this way, but he would not call that a privacy interest.” Justice Stevens questioned the fact that the conclusion reached did not truly address the public interest — the public may have an interest in how the investigation was conducted. In arguing for the government, Deputy Solicitor General Patricia Millett, indicated that “what is protected is survivors’ ability to remember the deceased, to dispose of the body with dignity, and to have seclusion in their grief. Courts, custom and practice recognize those concepts,” she said. This is a specious argument in that release of the information requested would not preclude the survivors from doing any of these things. If this is the protected right, what public interest would overcome such a privacy right?
The court was particularly sensitive about dissemination of disclosed information in the Favish case. “The problem will not just be that the information will end up on the front page of The New York Times, but under the Electronic Freedom of Information Act, it will be posted on government Web sites. You would find autopsy photographs of military officials on the Defense Department Web site,” Millett predicted. The aphorism regarding the FOIA that “release to one is release to all” was firmly reinforced in the Favish decision, where it was given specific application to the consequences of potential media “use” of any information disclosed. The court took pains to articulate that “[a]s a general rule, if the information is subject to disclosure, it belongs to all” and that the potential consequences of FOIA disclosures must be viewed accordingly. 124 S. Ct. at 1580; The expected “public exploitation” of the requested photographic records through “attempts to exploit pictures of the deceased family member’s remains for public purposes” by the media, among other things, were properly taken into consideration. 124 S. Ct. at 1577. Favish is a reminder to all agencies that their consideration of potential privacy invasions must include both what the requester might do with the information at hand and also what any other requester (or ultimate recipient) might do with it as well. See Id. at 1581 (“It must be remembered that once there is disclosure, the information belongs to the general public” to do with it what it will.).
Beyond the Ninth Circuit, the federal appeals courts are split as to whether mug shots are subject to FOIA. In a decision prior to the Supreme Court’s Favish, the Sixth Circuit (U.S. Court of Appeals covering Tennessee, Ohio, Kentucky and Michigan) held that there is no recognizable personal privacy interest in mug shots and allowed individuals who live or work in the district to request mug shots taken in any part of the country. Detroit Free Press v. Department of Justice, 73 F.3d 93 (6th Cir.1996). Yet, just this year, the 11th Circuit (U.S. Court of Appeals covering Florida, Alabama and Georgia) specifically took note of this decision and departed from it, holding that releasing mug shots under the FOIA would violate the personal privacy rights of those depicted in the photos in Karantsalis v. Department of Justice. The reasoning of the district court was found sufficient in that it held that “a booking photograph is a unique and powerful type of photograph that raises personal privacy interests distinct from normal photographs . . . [it] captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties.” In addition, the court held there was little public interest in the mug shots beyond “satisfying voyeuristic curiosities.” The court held that the photographs would not provide any information to the public about the operations of the government, which is generally a required showing when requesting records where a privacy interest exists. The court dismissed the Karantsalis’ argument that the photographs would inform the public as to whether or not certain people got preferential treatment by the Marshals.
Of course the impact of this recent ruling remains to be seen. News organizations have routinely submitted their requests for mug shots through 6th Circuit states since without an appeal and a reversal, the ruling in Detroit Free Press stands in the 6th Circuit. The cause of action in Karantsalis arose because a request for the mug shots was made outside the jurisdiction of the 6th Circuit and denied by the U.S. Marshal Service. The Marshals fulfilled the requests of media outlets that had filed their requests in the 6th Circuit. What all of this demonstrates is how the FOIA is subject to many different interpretations which may not be consistent with the spirit of the legislation, which was designed to facilitate access to government documents
All of this is not just confusing for the average citizen seeking official records and mugshots. Even government agencies are unsure of how to interpret and apply the laws after reading case law. The U.S. Marshal Service issued a guide directing the agency’s Freedom of Information officers to ignore the 1996 holding of the 6th Circuit as authoritative in light of the U.S. Supreme Court’s decision in Favish and supposed “overwhelming weight of case law” that the guide says “broadly interprets” the privacy protections in the Freedom of Information Act’s law enforcement exemption. Yet, again remember that without an appeal and a reversal, the ruling stands in the 6th Circuit and it just as valid as that of the 11th Circuit.
What the U.S. Marshals Service misses in making such broad mandates is that the issue of the legitimacy of the public interest in these information access cases is the factor upon which the decision to release information will be decided. There is no blanket exemption, but rather the legitimacy of each request still ought to be examined on a case-by-case basis based on legitimate use. The Detroit Free Press decision granted reporter Joe Swickard mug shots of Jack Anthony Lucido and associates indicted on 82 counts of illegal gambling and other charges at a golf club in the wealthy Detroit suburbs. The public’s interest in what these mug shots could show — error in detaining the wrong person and the circumstances of arrest and incarceration — outweighed any privacy interest, the court said. Detroit Free Press, 73 F.3d at 98.
First Amendment, Sixth Amendment & Freedom of the Press Implications
Luckily, most state courts have already rejected the notion of survivor rights to privacy and not even the Supreme Court can dictate common law privacy rights to them. The Favish opinion, and its ilk— Forest Guardians v. Fed. Emergency Mgmt. Agency, 410 F. 3d 1214 (10th Cir. 2005); Snyder v. Phelps, 131 S. Ct. 1207 (March 2, 2011), etc. with their heavy emphasis on privacy interests, demonstrate that access to information like official records and mug shots is under assault. Favish was just one of the latest in a series of recent Supreme Court cases in which the public’s interest has been deemed far less important than personal privacy. This trend could bode ill for future freedom-of-press cases. In the context of the FOIA, the Favish ruling will make it far more difficult for the news organizations, media outlets and general public to obtain official records and photographs like mug shots when personal privacy is invoked. It unfairly puts the requester in the difficult position of trying to predict the significance of the documents requested sight unseen. The ruling does not appear to have an effect on the FOIA except in cases in which the personal privacy exemption is invoked.
In regards to the Sixth Amendment and Freedom of the Press, legitimate use of public records must be protected. It does not matter of the publisher is not a journalist in the traditional sense. Complete privacy does not exist and both law enforcement and the news media have a strong interest finding a balance in the dynamics between the right to a fair trial and freedom of the press. The Sixth Amendment guarantees suspects a fair trial. That means police and prosecutors have a duty to conduct a fair investigation and not to poison the jury pool. The First Amendment, on the other hand, gives the news media a free hand in publishing virtually any truthful content, largely independent of its potential impact on a fair trial. Again, this includes disclosure of official records and mug shots if it is newsworthy. When a crime occurs and is a major news story, information regarding major development by law enforcement is newsworthy and the public is interested in knowing more about who is allegedly responsible, including seeing a photograph. There is a legitimate public interest in the publication of official records and mug shots. It is the responsibility of law enforcement to protect the integrity of their investigation including the dissemination of records and mug shots that might influence witnesses or the jury pool. When news organizations receive leaked materials, they have an ethical obligation to weigh the newsworthiness of that material against potential harm and make a legitimate decision in regards to its publication as newsworthy.
DISCLAIMER: The information provided is as a general resource. By making this information available, Unpublisharrest.com, and it’s affiliates, assigns, nominees, directors, officers, employees and anyone associated with same are not purporting to render legal or other professional advice or opinions on specific facts or matters.
Reproduced with permission from The Mugshots.com Database.