Does the CPRA allow access to mugshots?

Answer

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 “mugshots 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, mugshots 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 in the course of [an investigation] would be to create a virtual carte balance 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.