A&A:Does the CPRA allow access to mug shots?

Q: Reporters in our news organization deal with several police departments who routinely deny requests for suspect mug shots. Most recently, a mug shot of a driver in a fatal hit and run case was requested As they always do, the police department denied our request for the mug shot and offered this standard reasoning for the exemption:

A: ”Based on your request for ‘the mug shot of the suspect arrested this morning for the fatal hit and run,’ the City must deny your request for the following reasons: Police Records: Records of complaints to, or investigations conducted by, or 1. records of intelligence infomation or security procedures of…any state or local police agency, or any investigatory or security files compiled by any…local agency for correctional, law enforcement, or licensing purposes. In this instance, the mug shot you have requested is part of the law enforcement investigatory file. Moreover, the law enforcement investigation in this matter is active and on­going and the disclosure of the mug shot you have requested would endanger the successful completion of the investigation and any possible future criminal prosecution. (Gov. Code 6254(f), 86 Ops. Cal. Atty. Gen. 132.)

Public Interest: Based upon the facts of this particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by the disclosure of the record. (Gov. Code 6255.) Here, the public interest served by not disclosing the record is intended to allow law enforcement to successfully complete its investigation into the matter and not compromise any future criminal prosecution that may result from said investigation.”

A: 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 this 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 labelled ‘investigatory.’ … ‘To say that the exemption created by subdivision (f) is applicable to any document which a public agency might, under any circumstances, use int he course of [an investigation] would be to create a virtual carte blance 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, the PRA requires that law enforcement agencies release certain arrest records, such as a “physical description” of arrestees, including eye color, hair color, gender, height and weight. Gov’t Code § 6254(f)(1).

The only exceptions are when disclosure would endanger the investigation or a person’s safety, or when the facts of a particular case demonstrate that the public interest in nondisclosure “clearly outweighs” the public interest in disclosure. Gov’t Code §§ 6254(f), 6255.

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. From the information you provided, it is difficult to imagine how this “public interest” exemption would apply given the suspect has been arrested, and his name is known to the public. The reason you were given as to this exemption does not seem to demonstrate that (or explain how) withholding the photograph “clearly outweighs” the public interest in disclosure.

Many police departments take a liberal stance on the release of booking photographs. For example, my understanding is that the LAPD and LA Sheriff’s Office have routinely released celebrity booking photographs. Unfortunately, I have also heard of numerous other police departments that consider such photographs exempt from disclosure for the same reasons that you were given.

The bottom line is that it tends to be very difficult to get booking photos from police departments that do not have a policy of releasing such records upon request. However, perhaps you might use some of the information above to persuade the Newport PD to release the photograph.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

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