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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-06-12
December 6, 2012
Mike
Mather
WTKR Television
Norfolk, 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 electronic
mail of November 9, 2012.
Dear
Mr. Mather:
You have asked whether the City of Virginia Beach
properly denied your request for a certain adult arrestee
photograph ("mug shot"). As background,
you stated that you requested the arrest photographs
of a convicted felon who is now a witness in another
trial concerning the robbery and fatal shooting of
an off-duty police officer in 2010. You indicated
that an inmate currently imprisoned for a federal
robbery conviction has been charged with robbing and
killing the officer. You indicated that four witnesses
who were convicted felons testified at a preliminary
hearing. The court did not allow cameras at the hearing,
and the Commonwealth's Attorney requested that names
and other identifying information of non-law enforcement
witnesses be withheld from media coverage. You stated
that you requested a mug shot of one of the witnesses
for a follow-up story, but that request was denied
initially pursuant to subsection G of § 2.2-3706,
due to safety concerns. The cited subsection provides
an exemption for those portions of noncriminal
incident or other investigative reports or materials
that contain identifying information of a personal,
medical or financial nature may be withheld where
the release of such information would jeopardize the
safety or privacy of any person. You stated that
you contacted the police department again and asserted
that the mug shot you requested must be released pursuant
to subdivision F 2 of § 2.2-3706, which provides
an exemption from mandatory disclosure for [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. You indicated that this assertion
was based on advice in the Virginia Association of
Chiefs of Police Law Enforcement Guide to FOIA and
Freedom of Information Advisory Opinion 06 (2011).
However, your request was again denied, this time
pursuant to subdivision F 2 and subsection D of §
2.2-3706. Subsection D provides that the identity
of any victim, witness or undercover officer, or investigative
techniques or procedures need not but may be disclosed
unless disclosure is prohibited or restricted under
§ 19.2-11.2.1
In analyzing this situation we must keep in mind the
general policy of FOIA expressed in subsection A of
§ 2.2-3701 that
All
public records and meetings shall be presumed
open, unless an exemption is properly invoked.
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. Any exemption from public access
to records or meetings shall be narrowly construed
and no record shall be withheld or meeting closed
to the public unless specifically made exempt
pursuant to this chapter or other specific provision
of law.
FOIA
defines public record in § 2.2-3701
to include all writings and recordings ... 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.
In implementing the policy of FOIA, subsection A of
§ 2.2-3704 states that [e]xcept as otherwise
specifically provided by law, all public records shall
be open to inspection and copying by any citizens
of the Commonwealth during the regular office hours
of the custodian of such records. If a request
is denied in whole or in part, then subsection B of
§ 2.2-3704 requires that the denial be in writing
and cite the appropriate exemption(s) that allow the
requested records to be withheld. Considering these
provisions together in the context of a mug shot,
a mug shot kept by a law enforcement agency in the
conduct of its official duties is a public record,2
and must be disclosed upon request as mandated by
FOIA, unless an exemption allows it to be withheld.
As stated above, the first denial of your request
cited subsection G of § 2.2-3706, which exempts
from mandatory disclosure those portions of noncriminal
incident or other investigative reports or materials
that contain identifying information of a personal,
medical or financial nature may be withheld where
the release of such information would jeopardize the
safety or privacy of any person. That subsection
refers to § 15.2-1722, which defines noncriminal
incidents records as compilations of noncriminal occurrences
of general interest to law-enforcement agencies, such
as missing persons, lost and found property, suicides
and accidental deaths. It is my understanding
that a mug shot is taken in the context of an arrest
for an alleged crime.3 While a mug shot is a public
record that contains identifying information of a
personal nature (i.e., a picture of the person), it
is in a criminal arrest context, not a noncriminal
incident or other investigative report or material
related to occurrences of general interest to law-enforcement
agencies. Therefore you are correct that subsection
G of § 2.2-3706 would not exempt mug shots from
disclosure.
We next consider subdivision F 2 of § 2.2-3706,
cited in the second denial of your request, which
provides an exemption from mandatory disclosure for
[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. You have
pointed out the distinction in this instance that
there is no longer an investigation, but instead this
matter is now being prosecuted. Keeping the narrow
construction rule in mind, and accepting the facts
as you have presented them, you would be correct that
this exemption is limited to investigations in felony
cases and would not apply if there is no such investigation.
However, the second denial of your request specifically
stated that "the release of the photo at this
time would jeopardize an investigation in a felony
case." Hypothetically, it is possible that there
is still an ongoing investigation, for example, if
the accused had an accomplice who is under investigation
but has not yet been arrested or charged. If there
is in fact some other felony investigation that would
be jeopardized by release of the mug shot in question,
then the exemption would apply. This office is not
a trier of fact; only a court has the authority to
rule on such factual questions.
Finally, the second denial of your request also cited
subsection D of § 2.2-3706, which provides that
the identity of any victim, witness or undercover
officer, or investigative techniques or procedures
need not but may be disclosed unless disclosure is
prohibited or restricted under § 19.2-11.2.
You contend that subdivision F 2 of § 2.2-3706
compels release of mug shots if that release will
not jeopardize a felony investigation, citing as references
Freedom of Advisory Opinion 06 (2011) and the Virginia
Association of Chiefs of Police Law Enforcement Guide
to FOIA. However, those sources did not consider the
facts presented here, where the subject of the mug
shot is also a witness in another criminal matter.
Note that subdivision F 2 of § 2.2-3706 does
not itself compel the release of mug shots, it merely
provides an exemption for mug shots to be withheld
under certain circumstances. When that exemption does
not apply, then as a general rule, mug shots must
be released pursuant to subsection A of § 2.2-3704,
just as is required for any other public record subject
to FOIA. However, release is only mandatory except
as otherwise specified by law. Sometimes more
than one exemption might apply to the same record;
public bodies are not limited to citing only one exemption.
In this case, because the subject of a mug shot is
a witness and by its nature, a mug shot inherently
identifies the person depicted, subsection D of §
2.2-3706 applies and this mug shot may be withheld
from release.
In summary, subsection G of § 2.2-3706 applies
to noncriminal incidents records and would not apply
to mug shots, which are generated in the course of
a criminal arrest; subdivision F 2 of § 2.2-3706
may or may not apply in this instance, depending on
the question of whether there is in fact a felony
investigation that would be jeopardized by the release
of the mug shot; and subsection D of § 2.2-3706
would exempt this mug shot from disclosure because
it identifies a witness. Finally, while the issue
does not appear to have been raised in the denial
of your request, I would note that as mentioned at
the end of Freedom of Information Advisory Opinion
06 (2011), under current law it appears that a mug
shot might be considered a criminal history record
which may be prohibited from release pursuant to §
19.2-389. It is my general understanding that such
records are not considered criminal history while
the subject is still in the criminal justice system.4
As you stated that the subject of this mug shot is
currently incarcerated, it would appear that the mug
shot in question5 would not be criminal history in
this instance. However, you mentioned other witnesses
who were no longer incarcerated. Depending on the
circumstances, their mug shots might be considered
criminal history records and be prohibited from release.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Based on the facts provided it is
not clear whether the provisions of § 19.2-11.2,
a victim and witness protection statute, would apply
in this instance. For purposes of this opinion, it
is presumed that § 19.2-11.2 does not apply;
if it did apply, its prohibitions on disclosure would
be controlling.
2See
Freedom of Information Advisory Opinion 06 (2011).
3See Va. Code § 19.2-390.
4See Va. Code § 9.1-126.
5Presuming the mug shot at issue was taken
as part of the arrest for the crime for which the
subject is currently incarcerated. |