quincy
Senior Member
This thread is to address the concerns and questions of spookychief and GingerA, as expressed by them in the now-closed thread started by KTTNMD, and is created upon a request made of me by spookychief in a private message received yesterday.
The concern is over the publication of booking photographs on a Florida arrest records website, and the question is what they can do to get these photographs and the arrest record information removed from the site.
Unfortunately, the answer to their question may be "nothing," although a Florida U.S. District Court decison in 2009 may hold out for them some hope if or when they attempt to have their photographs and records deleted.
First of all, most courts across the country that have been asked to rule on whether mug shots are public records have decided in the affirmative.
The Detroit Free Press has visited this issue more than once, and their lawsuits have led to federal court rulings against the U.S. Marshals Service in Michigan, Tennessee, Kentucky and Ohio. In a 1996 Detroit Free Press v Department of Justice (73 F.3d 93, 6th Cir) action, the Court held that (some) booking photos must be released to the media, even when there is no law enforcement purpose for the release (one law enforcement purpose is when law enforcement seeks help from the media in locating a fugitive and voluntarily releases a mug shot for publication). In 2005, however, when the Detroit Free Press sought the release of booking photos of accused criminals appearing in the U.S. District Court in Detroit, the U.S. Marshals once again refused their request, on the basis of invasion of privacy, which is an FOI exemption from release of records. U.S. District Court Judge Anna Diggs Taylor ordered the Marshals Service agency to release the photos to the newspaper, ruling that booking photographs do not fall under the FOI privacy exemption.
More recently, in September of 2010, the Daily Hampshire Gazette in Massachusetts sought the release for publication of booking photographs held by the Northampton Police Department. When the Police Department denied their request, this time under a Criminal Offender Record Information (CORI) exemption, the Gazette appealed to the Supervisor of Records in the Massachusetts Public Records Division. The Northampton Police Chief stated that, "Booking photos, commonly referred to as 'mug shots,' are highly suggestive by their very nature. Their indiscriminate public disclosure, especially pre-adjudication, could be harmful to the reputation of an individual, as well as prejudicial to judicial proceedings." However, despite the Police Department's arguments against release, the Supervisor of Records stated that booking photographs are public records not exempt from disclosure and release.
Utah courts have also addressed the issue and ruled that booking photographs and arrest records are presumptively public. San Juan County argued in 2007 that mug shots are private and disclosure of the mug shots are an invasion of an individual's privacy. In Bonneville International Corp d/b/a KSL-TV v San Juan County, however, Judge Douglas B. Thomas said, "In this instance, the Court cannot find why the publication or release of a record of someone who has been convicted of a crime is a clearly unwarranted invasion of personal privacy," and he said, "For the good and protection of the community, the public is entitled to know those individuals who have committed crimes...," and he said, "The [Supreme Court of Utah] also made it very clear as well, that a tie between competing interests goes to releasing the record; it does not go to keeping it private."
The Utah Chapter of the Society of Professional Journalists, who supported KSL-TV in their suit, said, "The judge's ruling reminds record holders that mug shots are public records and must be made available to anyone who seeks them without any need to justify or clarify their intended use."
Whether the rulings on public access to mug shots will extend to those where the arrests, charges, and/or convictions of a person have been expunged, this may have been answered this year by the New Jersey Supreme Court (see G.D. v Bernard Kenny and The Hudson County Democratic Organization). In this case, it was argued that the publication of a criminal record that had been previously expunged was an invasion of privacy and defamation (defamation because expunged records are deemed not to have occured and to claim that one has been arrested when the arrest "did not occur" would be false and reputationally injurious).
The Court said that an expungement "does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary. It cannot banish memories. It is not intended to create an Orwellian scheme whereby previously public information - long maintained in official records - now becomes beyond the reach of public disclosure on penalty of a defamation action. Although [our] expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth."
Now, with those few examples made that support the release of booking photographs to the public (and there are many many more), a Florida U.S. District Court Judge in the 11th Circuit, Judge Paul C. Huck, went against these prior decisions and ruled in December of 2009 that personal privacy is more important than a public's interest in viewing booking photographs. This Court's decision was upheld on appeal.
Huck said, "A booking photograph is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt," and Huck also said, "[A] booking photograph does more than suggest guilty; it raises a unique privacy interest because it captures an embarrassing moment that is not normally exposed to the public eye" (see Kazantzakis v U.S. Department of Justice, 38 Media L. Rep. 1240, S.D.Fla. 2009).
Every record needs to be viewed on a case-by-case basis, to determine if it legitimately falls under one of the FOIA or Public Record laws exemptions, but, as most courts have ruled, when there is a question whether to release or not release, to disclose or not disclose, to publish or not publish, it is generally found to be in the public's best interest to release, disclose and publish. Booking photographs and arrest records, as are all documents, papers, reports, letters, films, photos, sound recordings, databases, computer disks and tapes held by a government agency, are presumptively public. What to do with these publicly available records is more of an individual ethical issue and not a legal one.
I suggest, as I did with KTTNMD, that if you wish to have mug shots and arrest records removed from their place online, you start by appealing to the better nature of those that operate the Florida arrest site. Contact them directly and request the removal of your booking photographs and arrest information. You may also want to send a letter to your Attorney General, with a request to investigate the legality of this site (and this site, or those who are allowed to post comments about the mug shots appearing on the site, may have pushed some legal limits, especially in Florida). Then I suggest you sit down with an attorney in your area and see if there is an invasion of privacy action (or even a defamation action) that may have some merit based on the facts of your situations. Whether there is any action, or whether there is an action that will be worth the financial costs to pursue, is a question best asked of your local counsel.
Good luck.
The concern is over the publication of booking photographs on a Florida arrest records website, and the question is what they can do to get these photographs and the arrest record information removed from the site.
Unfortunately, the answer to their question may be "nothing," although a Florida U.S. District Court decison in 2009 may hold out for them some hope if or when they attempt to have their photographs and records deleted.
First of all, most courts across the country that have been asked to rule on whether mug shots are public records have decided in the affirmative.
The Detroit Free Press has visited this issue more than once, and their lawsuits have led to federal court rulings against the U.S. Marshals Service in Michigan, Tennessee, Kentucky and Ohio. In a 1996 Detroit Free Press v Department of Justice (73 F.3d 93, 6th Cir) action, the Court held that (some) booking photos must be released to the media, even when there is no law enforcement purpose for the release (one law enforcement purpose is when law enforcement seeks help from the media in locating a fugitive and voluntarily releases a mug shot for publication). In 2005, however, when the Detroit Free Press sought the release of booking photos of accused criminals appearing in the U.S. District Court in Detroit, the U.S. Marshals once again refused their request, on the basis of invasion of privacy, which is an FOI exemption from release of records. U.S. District Court Judge Anna Diggs Taylor ordered the Marshals Service agency to release the photos to the newspaper, ruling that booking photographs do not fall under the FOI privacy exemption.
More recently, in September of 2010, the Daily Hampshire Gazette in Massachusetts sought the release for publication of booking photographs held by the Northampton Police Department. When the Police Department denied their request, this time under a Criminal Offender Record Information (CORI) exemption, the Gazette appealed to the Supervisor of Records in the Massachusetts Public Records Division. The Northampton Police Chief stated that, "Booking photos, commonly referred to as 'mug shots,' are highly suggestive by their very nature. Their indiscriminate public disclosure, especially pre-adjudication, could be harmful to the reputation of an individual, as well as prejudicial to judicial proceedings." However, despite the Police Department's arguments against release, the Supervisor of Records stated that booking photographs are public records not exempt from disclosure and release.
Utah courts have also addressed the issue and ruled that booking photographs and arrest records are presumptively public. San Juan County argued in 2007 that mug shots are private and disclosure of the mug shots are an invasion of an individual's privacy. In Bonneville International Corp d/b/a KSL-TV v San Juan County, however, Judge Douglas B. Thomas said, "In this instance, the Court cannot find why the publication or release of a record of someone who has been convicted of a crime is a clearly unwarranted invasion of personal privacy," and he said, "For the good and protection of the community, the public is entitled to know those individuals who have committed crimes...," and he said, "The [Supreme Court of Utah] also made it very clear as well, that a tie between competing interests goes to releasing the record; it does not go to keeping it private."
The Utah Chapter of the Society of Professional Journalists, who supported KSL-TV in their suit, said, "The judge's ruling reminds record holders that mug shots are public records and must be made available to anyone who seeks them without any need to justify or clarify their intended use."
Whether the rulings on public access to mug shots will extend to those where the arrests, charges, and/or convictions of a person have been expunged, this may have been answered this year by the New Jersey Supreme Court (see G.D. v Bernard Kenny and The Hudson County Democratic Organization). In this case, it was argued that the publication of a criminal record that had been previously expunged was an invasion of privacy and defamation (defamation because expunged records are deemed not to have occured and to claim that one has been arrested when the arrest "did not occur" would be false and reputationally injurious).
The Court said that an expungement "does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary. It cannot banish memories. It is not intended to create an Orwellian scheme whereby previously public information - long maintained in official records - now becomes beyond the reach of public disclosure on penalty of a defamation action. Although [our] expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth."
Now, with those few examples made that support the release of booking photographs to the public (and there are many many more), a Florida U.S. District Court Judge in the 11th Circuit, Judge Paul C. Huck, went against these prior decisions and ruled in December of 2009 that personal privacy is more important than a public's interest in viewing booking photographs. This Court's decision was upheld on appeal.
Huck said, "A booking photograph is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt," and Huck also said, "[A] booking photograph does more than suggest guilty; it raises a unique privacy interest because it captures an embarrassing moment that is not normally exposed to the public eye" (see Kazantzakis v U.S. Department of Justice, 38 Media L. Rep. 1240, S.D.Fla. 2009).
Every record needs to be viewed on a case-by-case basis, to determine if it legitimately falls under one of the FOIA or Public Record laws exemptions, but, as most courts have ruled, when there is a question whether to release or not release, to disclose or not disclose, to publish or not publish, it is generally found to be in the public's best interest to release, disclose and publish. Booking photographs and arrest records, as are all documents, papers, reports, letters, films, photos, sound recordings, databases, computer disks and tapes held by a government agency, are presumptively public. What to do with these publicly available records is more of an individual ethical issue and not a legal one.
I suggest, as I did with KTTNMD, that if you wish to have mug shots and arrest records removed from their place online, you start by appealing to the better nature of those that operate the Florida arrest site. Contact them directly and request the removal of your booking photographs and arrest information. You may also want to send a letter to your Attorney General, with a request to investigate the legality of this site (and this site, or those who are allowed to post comments about the mug shots appearing on the site, may have pushed some legal limits, especially in Florida). Then I suggest you sit down with an attorney in your area and see if there is an invasion of privacy action (or even a defamation action) that may have some merit based on the facts of your situations. Whether there is any action, or whether there is an action that will be worth the financial costs to pursue, is a question best asked of your local counsel.
Good luck.
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