ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

CRIMINAL PROCEDURE: CENTRAL CRIMINAL RECORDS EXCHANGE.

Booking photographs or "mug shots" not criminal history record information to be filed with Central Criminal Records Exchange; disclosure not prohibited. Police or sheriff's department required to produce booking photograph or "mug shot" in response to request made under Virginia Freedom of Information Act.

August 30, 1990

900830

The Honorable John A. Rollison III
Member, House of Delegates

1990 9

You ask whether, and under what circumstances, The Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia ( the "Act"), requires a police or sheriff's department to produce, in response to a request made under the Act, a booking photograph or "mug shot" of an adult who has been arrested.

I. Applicable Statutes

The disclosure of public records is governed by the Act, the express policy of which is to ensure "the people of this Commonwealth ready access to records in the custody of public officials." Section 2.1-340.1. Section 2.1-342(A) provides, in part, that "[e]xcept as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizens of this Commonwealth during the regular office hours of the custodian of such records." The term "official records" is broadly defined in §2.1-341 as

all written or printed books, papers, letters, documents, maps and tapes, photographs, films, sound recordings, reports or other material, regardless of physical form or characteristics, prepared, owned, or in the possession of a public body or any employee or officer of a public body in the transaction of public business.

Section 2.1-342(B)(1) exempts from the mandatory disclosure provisions of the Act "[m]emoranda, correspondence, evidence and complaints related to criminal investigations." Section 2.1-342 (B)(1) also provides, however, that "[i]nformation in the custody of law-enforcement officials relative to the identity of any individual other than a juvenile who is arrested and charged, and the status of the charge or arrest, shall not be excluded from the provisions of [the Act]."

All official records are open for inspection and copying during regular office hours, unless otherwise specifically provided by law. Section 2.1-342(A). The Act does not require requests for official records to be made in writing or to mention the Act. A public body must respond to a request for official records within five work days. Id. One of four responses must be made: (1) the official records must be provided; (2) if an exemption applies to all the records, a written explanation must be given describing why the records will not be produced and citing the applicable statutory exemption; (3) if an exemption applies to some of the official records, the exempted records may be deleted with a written explanation citing the statutory exemption, and the remainder of the records must be provided, or (4) if the custodian of the records determines that it is "practically impossible" to (a) produce the records in five work days or (b) determine whether the records are available within five work days, the requester must be so notified. When the latter response is made, the records custodian has seven additional work days to respond to the request. Id.

Chapter 23 of Title 19.2, §§19.2-387 through 19.2-392, establishes the Central Criminal Records Exchange ("CCRE") of the Department of State Police and the procedure for reporting criminal offenses to CCRE. Section 19.2-389 restricts the dissemination of "criminal history record information" to certain individuals and agencies. Section 19.2-390(a) requires law- enforcement officials to make a report to CCRE, "on forms provided by it, of any arrest on a charge of treason or of any felony or of any offense punishable as a misdemeanor under Title 54.1, or Class 1 and 2 misdemeanors under Title 18.2," with certain exceptions provided in that section. Section 19.2-390(a) requires that reports filed with CCRE "be accompanied by fingerprints of the individual arrested." Section 19.2-392(A) provides:

All duly constituted police authorities having the power of arrest may take the fingerprints and photographs of: ( i) any person arrested by them and charged with a felony or a misdemeanor an arrest for which is to be reported by them to the Central Criminal Records Exchange, or ( ii) any person who pleads guilty or is found guilty after being summoned in accordance with §19.2-74. Such authorities shall make such records available to the Central Criminal Records Exchange. Such authorities are authorized to provide, on the request of duly appointed law-enforcement officers, copies of any fingerprint records they may have, and to furnish services and technical advice in connection with the taking, classifying and preserving of fingerprints and fingerprint records.

II. Booking Photographs and "Mug Shots" Are "Official Records" Under Act; No Exemption from Production Applies

A police or sheriff's department is a "public body," subject to the Act's disclosure requirements. Section 2.1-341. The definition of "official records" includes photographs. Id. The Act requires that "[a]ny exception or exemption from applicability shall be narrowly construed." Section 2.1-340.1.

Section 19.2-389 prohibits the dissemination of criminal history record information except as specifically provided. Section 19.2-389 does not authorize the release of criminal history record information to the media or the general public. Section 19.2-390(a) requires that fingerprints of the individual be filed with the report to CCRE, but does not mention booking photographs or "mug shots." Section 19.2-392 authorizes "[a]ll duly constituted police authorities having the power of arrest" to take fingerprints and photographs of "(i) any person arrested by them and charged with a felony or a misdemeanor an arrest for which is to be reported by them to the Central Criminal Records Exchange, or (ii) any person who pleads guilty or is found guilty after being summoned in accordance with §19.2-74." That section, however, provides only that the fingerprints and photographs shall be made available to CCRE, but does not appear to make them part of the CCRE record. Inquiries by members of my staff to the State Police and to several local police and sheriffs' departments reveal that the release of booking photographs or "mug shots" to news media and others is a common practice.

I am unaware of any Virginia case specifically addressing whether booking photographs or "mug shots" are exempt from production under the Act. Courts in several other jurisdictions, however, have ruled that booking photographs or "mug shots" are not protected from disclosure under their freedom of information or privacy laws. See Detroit Free Press v. Oakland Cty. Sheriff, 164 Mich. App. 656, 418 N.W.2d 124 (1987); Pemberton v. Bethlehem Steel Corp., 66 Md. App. 133, 502 A.2d 1101, cert. denied, 479 U.S. 984 (1986); Frith v. Associated Press, 176 F. Supp. 671 (E.D.S.C. 1959).

I have reviewed the exemptions from production under the Act and find no express exemption for booking photographs or "mug shots." The Act specifically requires exemptions to be strictly construed. The exemption in §2.1-342(B)(1) for records "related to criminal investigations" specifically provides that the exemption shall not apply to information "relative to the identity" of persons arrested and charged.¹ In my opinion, the booking photograph or "mug shot" is information "relative to the identity" of the subject within the meaning of that section. Because, as discussed above, booking photographs or "mug shots" are not required to be filed with CCRE, it is my opinion that they are not criminal history record information as contemplated by §19.2-389, and that §19.2-389 does not prohibit their disclosure. It is further my opinion, therefore, that a police or sheriff's department is required to produce a booking photograph or "mug shot" in response to a request made under the Act, as provided by §2.1-342(A).

Footnotes:

1. A possible exception could exist in a case where the disclosure of the photograph of the arrested person would jeopardize an ongoing investigation. In my opinion, the exemption in §2.1-342(B)(1) would permit the police or sheriff's department to refuse to release the booking photograph in such a situation.