A&A:Trouble obtaining arrest records and mugshots

Q: We are attempting to obtain arrest logs and mugshots or the booking photos associated with each arrest from local police jurisdictions for the purpose of crime statistical data gathering. We are asking for data on a consistent basis, i.e. daily email, weekly spreadsheets etc. Some jurisdictions have supplied the arrest logs but no photos. Other jurisdictions act like this is the first time they have ever had a request for such information. Can you please advise?

A: With respect to arrest logs, California’s Public Records Act exempts certain law enforcement records (namely, “records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of … any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes”), but it expressly provides that “state and local law enforcement agencies shall make public” the following information (unless doing so would “endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation”):

The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds Gov’t Code § 6254(f).

As to mug shots, unfortunately, there is no California case that discusses whether the Public Records Act requires release of booking photographs, or whether such records are exempt.

Agencies often cite an Attorney General opinion from 2003, in which the AG opined that law enforcement has the discretion to decide whether to disclose booking photos primarily on the theory that “mug shots fall within the ‘records of investigations’ exemption” in § 6254(f), to justify withholding booking photos. 86 Ops. Cal. Atty. Gen. 132, 135 (2003).

However, the California Supreme Court has explained that this exemption applies only to a record that “on its face purport[s] to be an investigatory record,” Williams v. Superior Court, 5 Cal. 4th 337, 356 (1993).

Thus, it could be argued that that narrow of category of records does not include booking photographs. Pemberton v. Bethlehem Steel Corp., 502 A.2d 1101, 1119 (Md. Ct. Spec. App. 1986) (ordering disclosure because “[i]t is not at all clear that a ‘mug shot’ necessarily constitutes or is part of a ‘record of investigation’ so as to be permissibly excludable” from public disclosure under similarly worded open records law).

Arguably, mug shots are not on their face records of an investigation, and may not be withheld under the investigatory exemption except where they are legitimately used for investigatory purposes. Williams, 5 Cal. 4th at 356.

An agency may not shield a record from public disclosure “simply by placing it in a file labeled ‘investigatory.’ … ‘To say that the exemption created by subdivision (f) is applicable to any document which a public agency might, under any circumstances, use in the course of [an investigation] would be to create a virtual carte blanch for the denial of public access to public records. The exception would thus swallow the rule.'” Id. (quoting Uribe v. Howie, 19 Cal. App. 3d 194, 212-13 (1971)).

Also, since — as noted above — the PRA requires that law enforcement agencies a “physical description” of arrestees, including eye color, hair color, gender, height and weight, Gov’t Code § 6254(f)(1), one could argue that a booking photo falls into this category of records that must be released, since it does no more than visually show information that a law enforcement agency is required to release anyway. In light of the AG opinion on mug shots, however, it may be difficult to convince an agency that resists disclosure to produce them.

It is not clear that an agency would be required to provide information on an ongoing basis in response to single request (i.e., please send us each week records reflecting X, Y, and Z), though — as a practical matter — you may be able to establish a routine with a particular agency and get the records regularly without having to make requests each week.

If an agency refuses to provide records under the PRA — or fails to respond at all within the statutorily defined timeframe — the ultimate recourse is filing a lawsuit under Gov’t Code § 6259. Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate, which is a type of order directing the public agency to take a specified action. Attorney’s fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Gov’t Code § 6259(d).

You can find additional information about the PRA at the First Amendment Coalition web site at https://firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.