Booking Information Remains Part of Public Record – Release of Mug Shots Up to Local Police

As we have reported previously in NewStream, the Governor inserted into the budget language that would change the public records laws and reclassify mug shots and all booking information as private and not public records.

The legislative language concerns the ability to use the Freedom of Information Laws (FOIL) to access this information.  As originally drafted, the Governor’s plan made all such information private, and not subject to a FOIL request.  It would be left up to the local police or sheriff whether to release the information.  The impact on news coverage is obvious.   While many police stations may continue to provide such information, some may not.

We opposed this legislation and expressed our concerns to the Governor, Assembly and the Senate.  The Governor argued that this was needed to prevent unscrupulous people from posting mug shots on the Internet, then extorting those individuals. This argument fails.  Nearly 18 states have addressed this problem by making such extortion a crime or imposing civil liability without making booking information private.  Also as part of the “social justice” agenda, he believes that you should not publicize booking information because of damage to the reputation of the person being arrested.

NYSBA, strongly opposed this legislation.   We have a First Amendment right to access to these public records.  From a public safety standpoint, people have a right to know.  In addition, the proposal effectively creates the possibility of secret arrests.  Our view is that this information is public because it stems from police activity.

NYSBA was at the Capital last week and over the weekend making our concerns known.  As a result of these efforts, the Governor reached a compromise. Booking information shall remain part of the public record. If local police do not provide such information, stations may seek it through the FOIL process. (This is the status quo)

Unfortunately, the Governor’s office would not budge on the mug shot pictures themselves. The Assembly and Senate leadership, who both championed our cause, ultimately agreed.  Thus, the mug shot itself is no longer a public record for the purposes of FOIL.  If a local police or sheriff’s department decides not to release the mug shot, a station may not use the FOIL process to access the picture. You will need to get a picture from another source.

While better than the original proposal, the compromise will make it more difficult for stations to obtain pictures of those who have been arrested.  We are examining our options, including the possibility of litigation.

To see a copy of the revised language click HERE.


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