Legislative Memo: “Mugshot” and Booking Information Ban

Arrest photos can affect one’s personal life, job prospects, educational opportunities, housing options, and career advancement – and companies should not have free reign to profit off of this black market in privacy. However, the Executive Budget’s proposed legislative ban on the release of all “booking information” is simultaneously much broader than needed to address these privacy concerns, and far too narrow to offer those arrested any meaningful measure of privacy.

Importantly, nothing in this legislation would prevent law enforcement from publicizing photographs or other information from an arrest, including for the overt purpose of public shaming. If enacted, it would still permit the mugshots of people who are never charged, or who are exonerated, to be posted online.

And in seeking the secrecy of all booking information, the bill would sweep into secrecy the sort of basic demographic data that is critical for public accountability over the arrest and booking process. As such, while it offers little to protect arrestees’ privacy, this measure would unduly restrict proper access to public records which are critical to police oversight – all in the name of solving a problem New York’s courts have already begun to address independently, and with more precision.

The NYCLU opposes this measure, and urges lawmakers and the Governor to omit it from final state budget legislation.

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Governor Cuomo’s proposed “mugshot ban” is a personal privacy measure that would amend §89(2)(b) of the state’s Freedom of Information Law (FOIL) to prohibit law enforcement and other government agencies from releasing arrestee photos – colloquially known as mugshots – and “booking information” in response to FOIL requests from the public, unless the release serves a “specific law enforcement purpose.”

The ban is intended to address a real problem: an extortionate form of internet-based public shaming in which so-called “pay-to-remove” websites collect arrestees’ booking photos from various law enforcement agencies via FOIL requests, post the photos online, and then charge arrestees a hefty fee to take them down.

If an arrestee does not pay, the humiliating photos remain on the internet forever, invariably appearing whenever someone searches the Internet for an arrestee’s name – even if charges are dropped, the arrestee is exonerated, or a conviction is later expunged.

The consequences of this can be severe and long-lasting. Years after an arrest, no matter how a charge was resolved, and to no discernable public benefit, arrest photos can impact the subject’s personal and romantic life, child custody, job prospects, college or other educational opportunities, rental or license applications, and career advancement. Simply put, the “pay-to-remove” business model is a problem very much worth solving. Unfortunately, this proposal is not the solution.

The Measure is Ambiguous and Overbroad, and Restricts Public and Journalistic Oversight of Policing Activity

The Executive Budget proposal does not define “booking information,” so it is does not clearly specify which data might qualify for exemption under the FOIL. But “booking info” is by definition a broad term for all information collected during the booking process, including the name, arrest date, charge, and suspected criminal activity of an arrestee.

It may also include an arrestee’s race, gender, age, religion, home address, driver’s license information, and other personally identifying details such as height, weight, hair and eye color, and more. The measure therefore appears to secret from public view or inquiry every piece of information collected during booking – a far broader reach than just mugshot photographs.

What’s more, the measure asserts that protected information may be released only for “specific law enforcement purpose[s],” but leaves that phrase undefined as well. This is improper for several reasons. The phrase’s ambiguity means that, in practice, a “specific law enforcement purpose” is likely to be whatever law enforcement says it is, and nothing else.

But more importantly, the phrase defeats the public purpose of FOIL: to shed light on government activity and keep the public informed about how the government is doing its job. 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. But absent a specific law enforcement purpose, these other entirely legitimate public purposes appear to be foreclosed.

The standard for evaluating privacy concerns in the context of FOIL should remain as it is now: whether an individual’s privacy interest in the data being requested outweighs the public’s interest in seeing it. That standard is sufficient to keep humiliating information out of the hands of those who would exploit it commercially, while allowing legitimate inquiry into government activity.

The Measure Restricts Public Access to Booking Information, But Still Permits Government Publication for Virtually Any Purpose

Preventing public access to arrest data via the FOIL process does nothing to address the government’s own everyday use and release of that data. This proposal would allow the government to assert privacy grounds in order to deny FOIL requests – written requests by third parties, potentially including exploitative websites, for arrest photos and booking data.

But it does nothing to curb the government’s own voluntary disclosure of booking photos and data pursuant to fugitive alerts, news releases, or even intentional public shaming. That sort of publication is governed by a different legal standard, under which a person’s arrest records are generally afforded very little privacy protection.

The Measure Is Unnecessary as Courts Move to Resolve the Problem

Lastly, New York’s courts have already begun to address the “pay-to-remove” business model. Under current FOIL law – that is, without the amendment offered here – an agency may refuse to release information that violates an individual’s personal privacy, so long as that privacy interest outweighs the public’s right to know about government activity.

Mug shots and arrest information historically have been considered public records that receive little privacy protection, but even so, New York’s appellate courts have repeatedly ruled that the “pay-to-remove” business model – essentially online shaming for profit – serves no public interest and that FOIL requests for such purposes can be denied outright.

Conclusion

The Executive Budget’s proposal appears to be a well-intended effort to secure the privacy of those who have been arrested. However, the worst practices related to publication of booking information and arrest photos are already being resolved by courts, and the measure does not take a properly balanced approach to who may access or utilize mugshots and other arrest information.

The NYCLU calls for lawmakers to reject its inclusion in final budget legislation, and reconsider the merits of its approach before advancing any similar measures.