December 6, 2012
The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your electronic mail of November 9, 2012.
Dear Mr. Mather:
You have asked whether the City of Virginia Beach properly denied your request for a certain adult arrestee photograph ("mug shot"). As background, you stated that you requested the arrest photographs of a convicted felon who is now a witness in another trial concerning the robbery and fatal shooting of an off-duty police officer in 2010. You indicated that an inmate currently imprisoned for a federal robbery conviction has been charged with robbing and killing the officer. You indicated that four witnesses who were convicted felons testified at a preliminary hearing. The court did not allow cameras at the hearing, and the Commonwealth's Attorney requested that names and other identifying information of non-law enforcement witnesses be withheld from media coverage. You stated that you requested a mug shot of one of the witnesses for a follow-up story, but that request was denied initially pursuant to subsection G of § 2.2-3706, due to safety concerns. The cited subsection provides an exemption for those portions of noncriminal incident or other investigative reports or materials that contain identifying information of a personal, medical or financial nature may be withheld where the release of such information would jeopardize the safety or privacy of any person. You stated that you contacted the police department again and asserted that the mug shot you requested must be released pursuant to subdivision F 2 of § 2.2-3706, which provides an exemption from mandatory disclosure for [a]dult arrestee photographs when necessary to avoid jeopardizing an investigation in felony cases until such time as the release of the photograph will no longer jeopardize the investigation. You indicated that this assertion was based on advice in the Virginia Association of Chiefs of Police Law Enforcement Guide to FOIA and Freedom of Information Advisory Opinion 06 (2011). However, your request was again denied, this time pursuant to subdivision F 2 and subsection D of § 2.2-3706. Subsection D provides that the identity of any victim, witness or undercover officer, or investigative techniques or procedures need not but may be disclosed unless disclosure is prohibited or restricted under § 19.2-11.2.1
In analyzing this situation we must keep in mind the general policy of FOIA expressed in subsection A of § 2.2-3701 that
All public records and meetings shall be presumed open, unless an exemption is properly invoked.
The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.
FOIA defines public record in § 2.2-3701 to include all writings and recordings ... regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. In implementing the policy of FOIA, subsection A of § 2.2-3704 states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. If a request is denied in whole or in part, then subsection B of § 2.2-3704 requires that the denial be in writing and cite the appropriate exemption(s) that allow the requested records to be withheld. Considering these provisions together in the context of a mug shot, a mug shot kept by a law enforcement agency in the conduct of its official duties is a public record,2 and must be disclosed upon request as mandated by FOIA, unless an exemption allows it to be withheld.
As stated above, the first denial of your request cited subsection G of § 2.2-3706, which exempts from mandatory disclosure those portions of noncriminal incident or other investigative reports or materials that contain identifying information of a personal, medical or financial nature may be withheld where the release of such information would jeopardize the safety or privacy of any person. That subsection refers to § 15.2-1722, which defines noncriminal incidents records as compilations of noncriminal occurrences of general interest to law-enforcement agencies, such as missing persons, lost and found property, suicides and accidental deaths. It is my understanding that a mug shot is taken in the context of an arrest for an alleged crime.3 While a mug shot is a public record that contains identifying information of a personal nature (i.e., a picture of the person), it is in a criminal arrest context, not a noncriminal incident or other investigative report or material related to occurrences of general interest to law-enforcement agencies. Therefore you are correct that subsection G of § 2.2-3706 would not exempt mug shots from disclosure.
We next consider subdivision F 2 of § 2.2-3706, cited in the second denial of your request, which provides an exemption from mandatory disclosure for [a]dult arrestee photographs when necessary to avoid jeopardizing an investigation in felony cases until such time as the release of the photograph will no longer jeopardize the investigation. You have pointed out the distinction in this instance that there is no longer an investigation, but instead this matter is now being prosecuted. Keeping the narrow construction rule in mind, and accepting the facts as you have presented them, you would be correct that this exemption is limited to investigations in felony cases and would not apply if there is no such investigation. However, the second denial of your request specifically stated that "the release of the photo at this time would jeopardize an investigation in a felony case." Hypothetically, it is possible that there is still an ongoing investigation, for example, if the accused had an accomplice who is under investigation but has not yet been arrested or charged. If there is in fact some other felony investigation that would be jeopardized by release of the mug shot in question, then the exemption would apply. This office is not a trier of fact; only a court has the authority to rule on such factual questions.
Finally, the second denial of your request also cited subsection D of § 2.2-3706, which provides that the identity of any victim, witness or undercover officer, or investigative techniques or procedures need not but may be disclosed unless disclosure is prohibited or restricted under § 19.2-11.2. You contend that subdivision F 2 of § 2.2-3706 compels release of mug shots if that release will not jeopardize a felony investigation, citing as references Freedom of Advisory Opinion 06 (2011) and the Virginia Association of Chiefs of Police Law Enforcement Guide to FOIA. However, those sources did not consider the facts presented here, where the subject of the mug shot is also a witness in another criminal matter. Note that subdivision F 2 of § 2.2-3706 does not itself compel the release of mug shots, it merely provides an exemption for mug shots to be withheld under certain circumstances. When that exemption does not apply, then as a general rule, mug shots must be released pursuant to subsection A of § 2.2-3704, just as is required for any other public record subject to FOIA. However, release is only mandatory except as otherwise specified by law. Sometimes more than one exemption might apply to the same record; public bodies are not limited to citing only one exemption. In this case, because the subject of a mug shot is a witness and by its nature, a mug shot inherently identifies the person depicted, subsection D of § 2.2-3706 applies and this mug shot may be withheld from release.
In summary, subsection G of § 2.2-3706 applies to noncriminal incidents records and would not apply to mug shots, which are generated in the course of a criminal arrest; subdivision F 2 of § 2.2-3706 may or may not apply in this instance, depending on the question of whether there is in fact a felony investigation that would be jeopardized by the release of the mug shot; and subsection D of § 2.2-3706 would exempt this mug shot from disclosure because it identifies a witness. Finally, while the issue does not appear to have been raised in the denial of your request, I would note that as mentioned at the end of Freedom of Information Advisory Opinion 06 (2011), under current law it appears that a mug shot might be considered a criminal history record which may be prohibited from release pursuant to § 19.2-389. It is my general understanding that such records are not considered criminal history while the subject is still in the criminal justice system.4 As you stated that the subject of this mug shot is currently incarcerated, it would appear that the mug shot in question5 would not be criminal history in this instance. However, you mentioned other witnesses who were no longer incarcerated. Depending on the circumstances, their mug shots might be considered criminal history records and be prohibited from release.
Thank you for contacting this office. I hope that I have been of assistance.
Maria J.K. Everett
1Based on the facts provided it is not clear whether the provisions of § 19.2-11.2, a victim and witness protection statute, would apply in this instance. For purposes of this opinion, it is presumed that § 19.2-11.2 does not apply; if it did apply, its prohibitions on disclosure would be controlling.
2See Freedom of Information Advisory Opinion 06 (2011).
3See Va. Code § 19.2-390.
4See Va. Code § 9.1-126.
5Presuming the mug shot at issue was taken as part of the arrest for the crime for which the subject is currently incarcerated.