VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-06-11

October 17 , 2011

Lee R. Taylor, Esq.
Lexinton, Virginia

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 letter of August 31, 2011.

Dear Mr. Taylor:

You have asked whether adult booking photographs are a public record subject to disclosure under the Virginia Freedom of Information Act (FOIA). As background, you relate that the "Shenandoah Crime Times" publication has recently made a request for adult booking photographs from the Rockbridge County Regional Jail. You indicated there appears to be some confusion regarding how such photographs should be treated under FOIA due to some ambiguity between the definition of public records, the exemption for criminal investigative files, and the exemption for adult arrestee photographs.

Research did not reveal any court opinions that address the issue presented. However, the Attorney General opined in 1990 that booking photographs were official records subject to FOIA, which term was defined in then § 2.1-341 to include all written or printed books, papers, ...photographs...regardless of physical form or characteristics, prepared, owned, or in the possession of a public body or any employee or officer of a public body in the transaction of public business.¹ The term official record was replaced with the term public record when FOIA was amended in 1999.² While it is not controlling, the Virginia Press Association submitted a briefing to a Joint Committee of the General Assembly concerning the proposed changes, which is informative regarding the intent of the change:

the new definition of "public records" clarifies the law. The term "public records" should replace the current "official records." The difference is one of nuance, intended to remind both public officials and judges enforcing the Act that records held by government belong to the citizens. Public officials are elected or employed representatives of the citizenry, not its adversaries.

Current law acknowledges that records held by public bodies are covered "regardless of physical form or characteristic." This language is the broadest possible definition of what constitutes a record....

The sole purpose of the new definitional language is to help public officials understand, by way of example, that any form of information storage constitutes a public record.³

Given that the General Assembly did in fact adopt the proposed definition of public record from the working draft,⁴ these comments support the view that the definition is meant to broadly encompass all types of public records, including photographs. Currently, the term public record is defined in 2.2-3701 to mean

all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and 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. Records that are not prepared for or used in the transaction of public business are not public records.

You pointed out that a booking photograph is not a writing or recording consisting of letters, words or numbers, or their equivalent, and therefore it could be argued that it is not a public record subject to FOIA under the current definition. If we accept that argument, it could then be extrapolated to cover all photographs that lack letters, words or numbers, or their equivalent.⁵ However, in interpreting the definition of public record we must keep in mind the public policy of FOIA as stated in subsection B of § 2.2-3701:

The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government....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.

A booking photograph is a recording...set down by...photography which is prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Given the liberal construction rules in favor of openness, and past precedent establishing that booking photographs are official records, we must conclude that booking photographs are still public records subject to FOIA. To decide otherwise would equate to stating that all photographs, videos, and other visual records taken by government agencies in the course of public business are no longer public records unless they contain letters, words or numbers, or their equivalent. The only exception would be recordings of open meetings, which are specifically deemed to be public records under subsection I of § 2.2-3707.⁶ Such an interpretation would stand in direct opposition to the policies of FOIA quoted above.

Additionally, to conclude that photographs are not public records would render meaningless any exemptions concerning photographs, as photographs would no longer be considered public records in the first place. As stated by the Supreme Court of Virginia,

Under the rule of statutory construction of statutes in pari materia, statutes are not to be considered as isolated fragments of law....They should be so construed as to harmonize the general tenor or purport of the system and make the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness.⁷

For example, consider the discretionary records exemption provided by subdivision F 1 of § 2.2-3706 for criminal investigative files. The term criminal investigative file is defined in subsection A of § 2.2-3706 to mean any documents and information including complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports, witness statements, and evidence relating to a criminal investigation or prosecution, other than criminal incident information. [Emphasis added.] If photographs were not public records in the first place, there would be no need to include photographs within this definition.

Next, you indicated that there is some ambiguity in interpreting the exemption for criminal investigative files mentioned above in conjunction with the more specific exemption for adult arrestee photographs. On its face, the exemption for criminal investigative files appears to exempt all photographs relating to a criminal investigation or prosecution. However, the specific exemption for adult arrestee photographs only applies when release of the photographs would jeopardize an investigation in a felony case. Specifically, subsection F 2 of § 2.2-3706 exempts [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. Thus, there appears to be ambiguity in that the more general exemption would exempt adult arrestee photographs at any time, while the more specific exemption only allows such photographs to be withheld when their release would jeopardize investigations in felony cases. A third provision of § 2.2-3706 must also be considered in harmonizing these exemptions; subsection C states that [i]nformation in the custody of law-enforcement agencies relative to the identity of any individual, other than a juvenile, who is arrested and charged, and the status of the charge or arrest shall be released. In considering the same language in her prior opinion, the Attorney General opined that the booking photograph or "mug shot" is information "relative to the identity" of the subject within the meaning of that section.⁸ Reading all of these provisions together, an adult arrestee photograph such as a booking photo or "mug shot" is information ... relative to the identify of [an] individual, other than a juvenile, who is arrested and charged that shall be released. The exemption provided by subdivision F 2 would allow such a booking photograph to be withheld if release would jeopardize investigations in felony cases, but only while such jeopardy exists. As stated by the Supreme Court of Virginia, an ordinary rule of statutory construction serves to resolve the conflict. When one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, the two should be harmonized, if possible, and where they conflict, the latter prevails.⁹ Following the rules of statutory construction, the exemption for photographs in a criminal investigative file would not apply to booking photos, which are addressed by the more specific exemption at subdivision F 2, but would apply to other photographs in the file (such as crime scene photographs, surveillance photographs, autopsy photographs, etc.).

Finally, mention must be made of the prohibition on the release of criminal history information found at § 19.2-389. That section provides that [c]riminal history record information shall be disseminated, whether directly or through an intermediary, only to those listed in that statute.¹⁰ The previously-mentioned opinion of the Attorney General concluded that because booking photographs are not required to be filed with the Central Criminal Records Exchange (CCRE), they are not criminal history record information as contemplated by § 19.2-389, and that § 19.2-389 does not prohibit their disclosure.¹¹ While the relevant provisions of law are outside of FOIA, I would note that § 9.1-101 defines criminal history record information to include

records and data collected by criminal justice agencies on adult individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal charges, and any disposition arising therefrom. The term shall not include juvenile record information which is controlled by Chapter 11 (§ 16.1-226 et seq.) of Title 16.1, criminal justice intelligence information, criminal justice investigative information, or correctional status information.

That definition does not appear to hinge on whether a record is required to be reported to CCRE. Furthermore, § 9.1-136 provides for criminal misdemeanor penalties for the improper release of criminal history record information.¹² As these statutes fall outside of FOIA, this office cannot offer any interpretation of them, however, because criminal penalties are implicated, all criminal justice agency personnel who are involved in the dissemination of records should be aware of them.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹1990 Op. Att'y Gen. Va. 9.
²1999 Acts of Assembly, chs. 703 and 726. Note that the definition of public records remained unchanged from 1999 until this year, when the last sentence was added to clarify that records not prepared for or used in the transaction of public business are not public records (2011 Acts of Assembly, c. 242).
³Report of the Joint Committee Studying Virginia's Freedom of Information Act, House Doc. No. 106 (Va. 2000), App. B-52 to B-53 (reprinting briefing paper submitted to the Joint Committee by the Virginia Press Association dated August 17, 1998).
⁴See id. at B-6 and n. 2, supra (the definition of public records in the working draft used by the Joint Subcommittee matches the actual language adopted by the General Assembly in 1999).
⁵For purposes of this discussion, it is presumed that the booking photographs in question do not contain writings, numbers, or their equivalent. However, I note that in my experience booking photos often do include letters, words, and numbers, such as notations concerning the identity of the person depicted, the date, location, charges, and/or other information, such as using a height chart as the backdrop for the picture. Whether and what information is included appears to vary by jurisdiction. If such letters, words or numbers do appear on any given booking photographs, there would appear to be no question that the photographs would then be public records subject to FOIA.
⁶That subsection states in full: Minutes, including draft minutes, and all other records of open meetings, including audio or audio/visual records shall be deemed public records and subject to the provisions of this chapter.
⁷Alston v. Commonwealth, 274 Va. 759, 769; 652 S.E.2d 456, 462 (2007)(internal quotations and citations omitted).
⁸1990 Op. Att'y Gen. Va. 9; the quoted statutory language then was incorporated into the exemption for criminal investigative records, codified at former subdivision B 1 of § 2.1-341.
⁹Brown v. Commonwealth, 279 Va. 210, 222; 688 S.E.2d 185 192 (2010)(internal quotations and citations omitted).
¹⁰Among other provisions, § 19.2-389 currently lists 42 enumerated exceptions to the general prohibition on the release of criminal history records.
¹¹1990 Op. Att'y Gen. Va. 9.
¹²In full, § 9.1-136 reads as follows: Any person who willfully and intentionally requests, obtains, or seeks to obtain criminal history record information under false pretenses, or who willfully and intentionally disseminates or seeks to disseminate criminal history record information to any agency or person in violation of this article or Chapter 23 (§ 19.2-387 et seq.) of Title 19.2, shall be guilty of a Class 2 misdemeanor.