Mugshot ‘ban’ has not been a ban

For reasons that were never really explained, our governor decided earlier this year that mugshots of criminals didn’t belong in the public arena. It was part of a wide-ranging effort to make life easier for criminals at a time when crime has sunk to historic lows in New York, with bail “reform” and a lot of media organizations were perturbed about this mugshot legislation, but when we actually read the bill, it was clear there were many loopholes in it.

Essentially, the law allows police agencies to withhold mugshots if they want to, but it doesn’t require them to keep them private.

So far, I’ve only found one agency that is withholding them — the State Police. But while the agency’s official position is that they can’t release the mugshot, many troopers and investigators were angered by this move, and surreptitiously find ways to help us get photos of the felons they arrest.

All of the local sheriff’s offices and police departments we have asked for mugshots since the “ban” took effect readily provide them.

Warren County Sheriff Bud York said his office recently got an email from someone asking why sheriff’s officers were still releasing mugshots.

York provided us a copy of the response, which should pretty much answer any questions anyone has about this law change. It is pasted below.

From Sheriff York:

You are correct in that in this year’s budget legislation there was a provision included that dealt with the release of booking information by law enforcement. That provision amended the Public Officers Law by adding new language to subsection 89(2)(b). This new language amends the definition of what can be considered an unwarranted invasion of personal privacy to include: “…disclosure of law enforcement arrest or booking photographs of an individual, unless public release of such photographs will serve a specific law enforcement purpose and disclosure is not precluded by any state or federal laws.”

Though the textual change is minor (and applies only to booking photographs and not booking information in general), there is a lot to unpack here, and it’s helpful to zoom out first before analyzing the effects of this amendment.

First, it is important to note that this new language is being added to the Freedom of Information Law (FOIL). The central premise of FOIL is the presumption of access to public records. To wit, from the law’s preamble: “The legislature therefore declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.” NYS Public Officer’s Law Section 84. This presumption of access is tempered by numerous exceptions. If the requested record falls under one of these exceptions, a government agency may deny access to the record. Public Officers Law Section 87(2). “The statute does not, however, categorically exempt such documents from disclosure.” PBA of New York State v. State of New York, 145 A.D.3d 1391 (App. Div. 3rd Department, 2016). Information that is categorically prohibited from disclosure by a public agency is typically deemed “confidential” in the law, or otherwise designated as a non-public record. Such is the case with police officer personnel records (Civil Rights law Section 50-a), grand jury records (Criminal Procedure Law Section 190.85), and certain unemployment insurance records (Labor Law Section 537), to name a few examples.

But this is not the case here. There is nothing contained in this new provision which designates booking photographs as per se confidential or expressly prohibits their release by governmental agencies. To the contrary, the language even contemplates the discretionary release of such photographs for a “specific law enforcement purpose,” an incredibly broad term that is left undefined by the law. Added to this is the fact that the identifying details of arrestees (name, age, general area of residence), whose publication arguably does more to compromise a person’s privacy than their likeness, will still be accessible under FOIL and/or permitted to be affirmatively disclosed by law enforcement.

This is a long-winded way of saying that the recent amendment to the law does not actually prohibit law enforcement agencies from releasing booking photographs.

It is helpful to think of it this way; unless specifically classified as confidential or non-public, every record my Office has is presumed to be accessible by the public through a FOIL request, or can be affirmatively disclosed by you at your discretion.

However, there are certain records in my possession that, while not designated as confidential or non-public, are still not appropriate for public disclosure. These are records that I choose not to affirmatively disclose, and that I can deny FOIL requests for. These are things like information about non-routine investigative techniques my Office employs, or information that would compromise an ongoing investigation. But even in these circumstances, the discretion remains with me whether to disclose or not–technically, there is nothing preventing me from telling the public right now about how my investigators do their undercover drug buys, or the make and model of the unmarked cars my office uses. Mugshots are now considered this type of record, one that I can deny a foil request for, or choose to publish or withhold at my discretion.

The FOIL rules exist, in part, to give governmental agencies a reason to deny access, not to prevent them from sharing things that they want to share. If the legislature determines that there are types of government records that are not fit for publication, then they can pass a law that deems such records confidential or otherwise not accessible by the public. But that’s not what this amendment did. It simply allows local governmental agencies to deny FOIL requests for mugshots if they so choose, claiming that the release of such would constitute an unwarranted invasion of privacy. It does not say that mugshots shall not be made public.

But as you noted, there is a big exception, and it applies to the State Police. For their agency, this legislative change actually does constitute a ban on the release of booking photographs. This is because their agency is covered by the Personal Privacy Protection Law, a separate article found within the Public Officer’s Law which applies to “any state board, bureau, committee, commission, council, department, public authority, public benefit corporation, division, office or any other governmental entity performing a governmental or proprietary function for the state of New York, except the judiciary or the state legislature or any unit of local government and shall not include offices of district attorneys.” Public Officers Law Section 92(1). This separate body of law states that: “No agency may disclose any record or personal information unless such disclosure is… subject to disclosure under article six of this chapter (FOIL), unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter.” Public Officers Law Section 96(1)(c). So because of the interaction of these two bodies of law, the amendment functions as a ban on the release of booking photographs by the State Police (as well as any other state-level law enforcement agency).

So, it remains the policy of my office, in the interest of public trust and transparency, to continue to release booking photographs to the public.

Bud York.

Don Lehman is a reporter who covers crime and Warren County government for The Post-Star of Glens Falls. This piece first appeared in his blog on PostStar.com.

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