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Police agencies shift policies on handling mugshots

Police agencies shift policies on handling mugshots

New state law now allows law enforcement agencies to withhold them from public
Police agencies shift policies on handling mugshots
Police agencies in New York now have discretion on when to release arrest photos.
Photographer: Peter R. Barber

CAPITAL REGION -- For about the last five years or so it had been the policy of the Gloversville Police Department to release a digital mugshot -- a photo of the accused -- with nearly every arrest the department made.

Gloversville Police Chief Marc Porter said releasing digital mugshots in the form of emails to media outlets had become an almost automatic part of the booking process for arrests, partly because technology upgrades at the department had made it easy to do. 

"It was convenient to just put that out there and save the step from the media calling us and we wanted to be consistent and not pick and choose which mugshots we were sending out, so we just made it an internal practice that any finger printable offense we would send the mugshot along with the press release," Porter said. 

That policy ended abruptly on April 11, when Porter issued a news release stating: "Effective immediately, the city of Gloversville Police Department will no longer include mugshots when disseminating press releases to media outlets."

Porter said recent changes to the New York State Freedom of Information Law and other proposed legislation has him worried his department could put its New York state accreditation at risk if doesn’t restrict the release of mugshots.

Gloversville isn’t alone in changing its rules. Since the passage of the 2019-20 state budget, which changed the law dealing with the release of photos of those arrested, many law enforcement agencies throughout the state have decided to change their policies on whether to release crime suspects' photos.

Some are still releasing them; some are not.

The state budget included an amendment to the state's Freedom of Information Law that makes the routine disclosure of law enforcement arrests or booking photographs an "unwarranted invasion of personal privacy" — unless "public release of such photographs will serve a specific law enforcement purpose and disclosure is not precluded by any state or federal laws."

Mugshots are the photos taken by police when a person is arrested. They are used to help identify the person as part of his or her criminal record. Release of mugshots to the news media upon request, or in press releases from law enforcement agencies, has long been a staple of crime journalism, and a tool used by police to solicit help from the public.

The New York state Legislature's decision to limit access to mugshots comes on the heels of a federal 6th Circuit Court of Appeals decision in 2016 that ruled public access to mugshots of people arrested on federal crimes should be curtailed because the photos fall "squarely within [the] realm of embarrassing and humiliating information" that can do long lasting damage to the defendant's reputation.

The amendment to FOIL was advocated for by Gov. Andrew Cuomo’s administration, which argued the change is meant to curb the exploitation of mugshots by websites that post the pictures on the internet and then charge people to take them down.

Cuomo’s executive budget proposal had originally proposed the idea of making all arrest booking information an unwarranted invasion of privacy. The state Legislature ultimately reached a compromise by amending FOIL and giving law enforcement agencies discretion on whether to release mugshots, but all of the rest of the booking information in an arrest, including a person’s name, age, address and what the person is alleged to have done, remains public information. Dubbed a "mugshot ban" by some, the change is being interpreted in different ways by different law enforcement agencies, and has led to a patchwork of different standards throughout the state.

State Police 

Robert Freeman, executive director of the state Committee on Open Government, said FOIL is meant to be a "permissive" law, because it doesn’t require government agencies to withhold any documents from the public, but it does give agencies a list of specific legal reasons that it can choose to use to deny a request, the new one being “an unwarranted invasion of personal privacy.” 

"This is clearly not a ban," Freeman said. "The amendment gives discretion to withhold or disclose, it's their choice ... with one exception, the state police."

The state police, which prior to the change routinely released mugshots for many arrests, appears to now be releasing them in more limited circumstances.

For example, on May 6 New York State Police Troop A in Batavia released the mugshot of a missing person: Dustin W. Kish, 26, of Rushford. State police said he is 5’9", 180 lbs., was wearing an orange sweatshirt, blue jeans and brown shoes and he has a tattoo of cowboy boots on his right forearm.

State police Director of Public Information Beau Duffy said the state police will continue to release mugshots for wanted individuals on their Facebook page every Wednesday. However, for new arrests, state police will only release a mugshot if it serves a specific law enforcement purpose.

"If our investigators believed there could be other victims and the mugshot would help locate other victims, then we will release the mugshot. It's a case-by-case basis," Duffy said.

Initially after the new mugshot regulations were passed in April, the state police released very few mugshots. But in the last several weeks they have released mugshots of individuals charged with sex-related crimes.

On  May 22 the state police released the mugshot of Bryan A. Lemoine, 26, of Amsterdam, who had been charged with first degree disseminating indecent material to a minor.

On May 20 the state police, in conjunction with the Montgomery County Sheriff's Department, released the mugshots of 13 people charged with attempting to have sexual relations with a child less than 15 years of age. 

Duffy said state police investigators will have discretion, and the supervising officer of the investigation at each troop, a captain level position, will make the call whether to release a mugshot.

Freeman said the amendment to FOIL now makes the release of mugshots by the New York State Police subject to the state's Personal Privacy Protection Law of 1984, which regulates disclosure of personal information gathered by New York state officials.  

"That law deals with state agencies only, so [the state police are] precluded from disclosing records when the disclosure would result in an unwarranted invasion of privacy, and this amendment has told us that that is probably so [for mugshots]," Freeman said.

Freeman said prior to the change, the leading legal principle on releasing mugshots in New York state was the 1992 New York state court case Planned Parenthood of Westchester, Inc. v. Town Board of the Town of Greenburgh, in which the court found that mugshots are public information because people arrested have no expectation of privacy because court arraignments, where defendants are visible, are held in open court where anyone from the public can watch them.

"Prior to this amendment to FOIL, if an agency was following essentially the only judicial decision involving mugshots, it would have disclosed. Some did, some didn't. Today, if a police agency other than the state police wants to disclose it may choose to do so, but it doesn't have to," Freeman said.

Sheriffs' choice 

Fulton County Sheriff Richard Giardino, a former judge and district attorney, said he intends to continue to release mugshots for major crimes, particularly ones involving violence, burglaries, rapes and other sex offenses. While Giardino said he's opposed to the law change, he believes he's within his right as sheriff to release or not release any mugshots he chooses.

"In the interest of public safety, we as sheriffs believe those photos should continue to be released. I'll give you two examples: If you have an incident involving a sexual predator or someone charged with sex abuse, without the photo being released, individuals who may have come into contact with that person, either as witnesses or victims, may not associate a name with an offender, and therefore by releasing the photo it gives the public a better understanding of what we're concerned about," he said.

"Another one would be, if you live on a road where there have been a series of thefts, and somebody gets arrested for a burglary, and we release the photograph — that's a crime where you might have seen that person around, but not known the name.

Giardino's interpretation of the FOIL amendment is bolstered by an advisory memo issued by the New York State Sheriff's Association, written by staff attorney Alex Wilson.

Wilson said he created the memo for use by sheriffs because many of them were requesting answers about the new FOIL rules.

"There was a degree of uncertainty, so they basically were wondering how it would work in practice," he said.

Wilson states in the advisory that sheriffs can continue to release mugshots as they have in the past, if they so choose. But they don't have to.

Giardino said he's going to stick to his current policy of not routinely releasing mugshots for smaller offenses like petty larcenies or Driving While Intoxicated charges, "unless there's something unusual about them." He said he'll determine how to respond to FOIL requests for mugshots he hasn't released on a case-by-case basis.

"I'm going to err on the side of releasing them under the FOIL law and the public safety exceptions, because I do believe that most people, although presumed innocent at that stage, the public should have a right to know not only their name, but what they look like, so they can make a determination whether the person has done anything improper on them or that they might," he said.

Schenectady County Sheriff Dominic Dagostino also said that while he doesn't agree with the law change, he's going to "err on the side of caution" and withhold most mugshots until he receives more clarity as to when it is permissible to release them.

"I think the law is poorly written, and there's a lot of ambiguity left in it and how it was written." 

He added: "If it's for 'a specific law enforcement purpose' then we will release them, whatever that may be. Right off the top of my head, a wanted person, someone with a previous mugshot, [I] might release it. A wanted person for a sex crime, I'm absolutely releasing it."

Dagostino said he believes law enforcement agencies are put into a bind by the legislation and it will likely result in litigation.

Justin Harrison, an attorney for the New York Civil Liberties Union, said it's the position of the NYCLU that the FOIL changes nothing for local police or county sheriffs.

"Our position has been that if they are going to voluntarily decide [to] not release mugshots, that's on them, but there's nothing in this law that restrains them in any way, and if they think there is then they're reading it incorrectly," he said.

A memo released by the NYCLU addressing what it called the “Mugshot and Booking Information Ban” argued the change to FOIL gives too much discretion to police by giving them the power to deny FOIL requests and to release mugshots whenever they decide there is a law enforcement purpose.

“Booking photos and arrest information can serve important research and oversight purposes. They can reveal racial, cultural, or other biases in arrest patterns, illustrate trends in enforcement of questionable criminal laws, and even serve as evidence of how an arrestee was treated while in police custody,” reads the memo. 

Harrison said: "There's no suspect class at issue here, so the equal protection burden is pretty low, and on top of that your public interest in your arrest data is actually pretty slim," he said. "The Internet has changed that analysis a little bit and of course the reason the [federal government] has become more careful about protecting people's privacy, given the fact that it's forever and publishing somebody's mugshot on the Internet will have implications for decades down the line, more than publishing somebody's mugshot in the local newspaper. Your privacy interest in your arrest record is minimal compared to say your medical data." 

Montgomery County Sheriff Jeff Smith also said he'll be making his determination on which mugshots to release on a case-by-case basis.

"Sometimes you have to be an attorney to understand some of the legislation that's changed or the way its written. Our take is it does not affect sheriffs at all, or municipal police departments. It appears to be mainly written to affect the New York State Police," Smith said.

"If we're looking for someone, or it's going to affect the community, we're absolutely going to release it, so we can let the community know that this person could be a potential problem," he said.

Blackmail websites 

Giardino said he is skeptical of the Cuomo administration's stated purpose of trying to curtail blackmailing websites with the new mugshot rules. 

"My position is, if that was truly the reason the governor feels that way, then why wouldn't they just make it unlawful to post somebody's arrest photo and charge them to take it down?" Being that a number of legislators have been arrested and convicted, maybe it's a conflict for them to decide whose picture should be posted and not," he said.

Harrison said he thinks the state is going too far in trying to counter blackmail websites when the court system was already providing remedies to that problem, ruling that local governments don't need to comply with FOIL requests from those kinds of websites because release of information to them serves no public purpose. He said the NYCLU is concerned the change to FOIL has the potential to be used to restrict legitimate FOIL requests.

"The state has created this black hole where public access used to be. It used to be that the court was supposed to balance privacy with public access and decide whether there was a legitimate public interest in seeing this data, but now it's been taken out of the court's hands as well," he said. "There is nothing in this law that constrains police behavior at all. They are as free as ever to livestream a prostitution bust, and do all of the things they like to do because people enjoy their schadenfreude and like to see drunk people in handcuffs, and, obviously, in situations that have a legitimate public safety concern.” 

Municipal Police Departments

Gloversville Police Chief Porter said his department will maintain a similar policy to the sheriffs' departments with respect to when it will choose to release a mugshot.

"We're not prohibited from releasing mugshots, and there could be some instances where we still do, when it's in the best interests of public safety.

In Schenectady,  Police Chief Eric Clifford in April said his department will continue to issue mugshots, but it had already started to scale back in recent years, limiting their release to major crimes and wanted suspects.

“We will look at the state’s directive and evaluate and change if directed,” Clifford said. “We will abide by whatever the state directs.”

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