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Cite as: 2012 OK AG 22, __ __
¶0 The office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:
1. Is an arrestee’s mug shot that is taken and retained by a law enforcement agency an open record?
2. If the mug shot is an open record, is that record subject to disclosure to the media or any citizen upon request?
3. Does disclosure of the mug shot by a law enforcement agency constitute an invasion of privacy of the arrestee regardless of whether a determination of guilt was made?
4. If it is determined that the mug shot is an open record and subject to disclosure, is a law enforcement agency required to provide a copy of the record electronically or is allowing access to the hard copy of the record for mechanical reproduction by a photocopier in compliance with the law even if the agency retains an electronic copy?
Because Mug Shots are Arrestee Descriptions, They are Open Records.
¶1 Your questions relate to the applicability of the Oklahoma Open Records Act, 51 O.S.2011, §§ 24A.1 – 24A.29, to mug shots or booking photographs taken when law enforcement agencies book an arrestee into jail. The Open Records Act defines records as:
[A]ll documents, including, but not limited to, any book, paper, photograph, microfilm, data files created by or used with computer software, computer tape, disk, record, sound recording, film recording, video record or other material regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property.
Id. § 24A.3(1) (emphasis added). Thus, a mug shot taken by a law enforcement agency is a record under the Open Records Act.
¶2 Generally, the Open Records Act requires all records of public bodies and public officials to be open.1 51 O.S.2011, § 24A.5. However, the Legislature has carved out exceptions to the general rule. One exception involves law enforcement agencies. See id.§ 24A.8. Law enforcement agencies generally are not required to disclose law enforcement records. Id. § 24A.8(B). However, Section 24A.8(A) requires disclosure of eight types of records that would otherwise be protected from disclosure. The eight types of records are:
1. An arrestee description, including the name, date of birth, address, race, sex, physical description, and occupation of the arrestee;
2. Facts concerning the arrest, including the cause of arrest and the name of the arresting officer;
3. A chronological list of all incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred;
4. Radio logs, including a chronological listing of the calls dispatched;
5. Conviction information, including the name of any person convicted of a criminal offense;
6. Disposition of all warrants, including orders signed by a judge of any court commanding a law enforcement officer to arrest a particular person;
7. A crime summary, including an agency summary of crimes reported and public calls for service by classification or nature and number; and
8. Jail registers, including jail blotter data or jail booking information recorded on persons at the time of incarceration showing the name of each prisoner with the date and cause of commitment, the authority committing the prisoner, whether committed for a criminal offense, a description of the prisoner, and the date or manner of discharge or escape of the prisoner.
Id. For each type of record, the Legislature provided a descriptive and non-exhaustive list of examples. Cf. Fabian & Assocs. v. State ex rel. Dep’t of Pub. Safety, 100 P.3d 703, 706 (Okla. 2004) (holding tape recordings of Implied Consent Hearings fall within Section 24A.8(A)(2) and must be made open for public inspection). While not specifically identified by the Legislature, mug shots fall within the first category of records identified in 51 O.S.2011, § 24A.8(A).
¶3 The first type of law enforcement record the Legislature has required to be disclosed is “[a]n arrestee description, including the . . . physical description . . . of the arrestee[.]” 51 O.S.2011, § 24A.8(A)(1). Because the term “description” is not defined in the Open Records Act, we must look at how the term is understood in its ordinary sense. See 25 O.S.2011, § 1 (“Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears, and except also that the words hereinafter explained are to be understood as thus explained.”); Neer v. State ex rel. Okla. Tax Comm’n, 982 P.2d 1071, 1078 (Okla. 1999) (“[T]erms in a statute are given their plain and ordinary meaning, except when a contrary intention plainly appears and the words of a statute should generally be assumed to be used by the law-making body as having the same meaning as that attributed in ordinary and usual parlance.”) (citation omitted). We first look at how the dictionary defines “description.” The word “description” is defined as “the act or an instance of describing[.]” Webster’s Third New International Dictionary 610 (3d ed. 1993). The definition of the word “describe” includes “to represent by a drawing, figure, model, or picture[.]” Id. (emphasis added). Thus, the dictionary suggests the term “description” includes pictures.
¶4 The inclusion of a picture within the term description has long been recognized in the law. As one learned jurist aptly noted, “[a] photograph is . . . a pictured description.” Ligon v. Allen, 162 S.W. 536, 538 (Ky. Ct. App. 1914). We agree. In the case of a person’s physical appearance, a mug shot provides not only a description but one of the most accurate descriptions of an arrestee’s physical features. Because a mug shot is one of the best physical descriptions of an arrestee, it is a type of record that must be disclosed. 51 O.S.2011, § 24A.8(A)(1).
Because Physical Descriptions of an Arrestee are Among the Types of Records Required by the Legislature to be Disclosed, Mug Shots Must be Disclosed to any Person Upon Request.
¶5 In your second question you ask whether mug shots must be disclosed to the media or any citizen upon request. When the Legislature enacted the Open Records Act, it noted that the purpose of the Open Records Act was “to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.” 51 O.S.2011, § 24A.2. The Legislature acted on this purpose by generally requiring “[a]ll records of public bodies and public officials [to] be open to any person for inspection, copying, or mechanical reproduction during regular business hours[.]” Id. § 24A.5.
¶6 While the Legislature has carved out an exception for most law enforcement records of law enforcement agencies, 51 O.S.2011, § 24A.8(B), the Legislature identified certain types of documents that do not warrant protection from disclosure. Id. § 24A.8(A). As discussed above, mug shots fall into this category. Because the Legislature decided to require the disclosure of the physical descriptions of arrestees, which includes their mug shots, law enforcement agencies must disclose mug shots in the same manner as other disclosures. Id. § 24A.5; see Fabian & Assocs., 100 P.3d at 706; A.G. Opin. 96-9 (“Thus, only those records . . . which fall under the provisions of 51 O.S. 24A.8(A) are subject to release under the Oklahoma Open Records Act.”).
Generally, the Disclosure of Mug Shots by Law Enforcement Agencies Will Not Constitute an Invasion of Privacy. However, an Invasion of Privacy May Occur If the Mug Shot Places a Person in a False Light.
¶7 In your third question you ask whether an invasion of privacy would occur if the law enforcement agency disclosed a person’s mug shot regardless of the determination of guilt.2 Oklahoma courts have recognized a common law tort of invasion of privacy since 1978. See Munley v. ISC Fin. House, Inc., 584 P.2d 1336, 1340 (Okla. 1978) (recognizing invasion of privacy involving intrusion upon seclusion and publicity given to private life as an actionable tort). While Oklahoma courts recognize a right to privacy, a person’s right to privacy ends if the information is true and contained in a public record. McCormack v. Okla. Pub. Co., 613 P.2d 737, 741-42 (Okla. 1980) (“An action granted on right of privacy does not lie when ‘public records’ (U.S. Justice Department’s list of organized crime) are used.”). Thus, the disclosure of mug shots by law enforcement agencies generally would not constitute an invasion of privacy because mug shots are public records, required by law to be disclosed upon request.
¶8 Under certain circumstances, however, the disclosure of mug shots by law enforcement agencies may constitute an invasion of privacy. Specifically, the Restatement (Second) of Torts3 suggests that an invasion of privacy would occur in the following scenario:
A and other police officers of a city maintain in the police department a “Rogues Gallery” of photographs, fingerprints and records of those convicted of crime. B is accused of robbery, arrested, fingerprinted and jailed. He is released when the accusation proves to be a matter of mistaken identity and another man is convicted of the crime. Although B never has been convicted of any crime, A insists, over B’s objection, in including B’s photograph and fingerprints in the Rogues Gallery. A has invaded the privacy of B.
Restatement (Second) of Torts § 652E cmt. c, illus. 7 (1977). By itself, the act of disclosing a mug shot is not enough to constitute an invasion of privacy even if the person has been acquitted. This is because a mug shot taken during the booking process does not show that the person has been convicted of a crime but only that the person has been arrested and booked into the jail. An invasion of privacy may occur when the disclosure of the mug shot is accompanied by a knowing or reckless false communication that the person in the mug shot has been convicted of a crime.
¶9 Ultimately, your question asking whether the release of a mug shot constitutes an invasion of privacy involves a question of fact that cannot be answered in an Attorney General Opinion. See 74 O.S.2011, § 18b(A)(5).
Law Enforcement Agencies Must Provide Copies of Mug Shots Electronically if They are Kept Electronically and if They are Specifically Requested in Electronic Format.
¶10 In your final question, you ask if law enforcement agencies must provide mug shots electronically when the law enforcement agency maintains the mug shots electronically. Section 24A.8(A), by its express terms, is limited to those records the agency keeps. Where a law enforcement agency does not keep a record in a particular format, the Open Records Act does not create an obligation to convert the record in a particular format upon request. 51 O.S.2011, § 24A.18 (“Except as may be required in Section 24A.4 of this title, this act does not impose any additional recordkeeping requirements on public bodies or public officials.”); see also 51 O.S.2011, § 24A.8(C) (“Nothing contained in this section imposes any new recordkeeping requirements.”). However, law enforcement agencies must provide electronic copies of mug shots if: 1) the agency keeps the mug shots in electronic format, and 2) the requestor specifically requests the mug shots in electronic format. See A.G. Opin. 06-35, at 240.
¶11 If a law enforcement agency does not keep mug shots in an electronic format, or if it keeps mug shots in a different electronic format than the electronic format requested, it may convert the record to the requested electronic format, but it is not required to do so. See 12A O.S.2011, § 15-117. The law enforcement agency may charge a reasonable fee for making a copy of the mug shot, including the cost of converting the mug shot into the requested format. 51 O.S.2011, § 24A.5(3);4 see Merrill v. Okla. Tax Comm’n, 831 P.2d 634, 641 (Okla. 1992).
¶12 Whether a particular requestor is part of the news media, whether a particular request is for news purposes or solely commercial purposes, and whether a particular request would cause an excessive disruption of an agency’s essential functions are all factual questions that cannot be answered in an Attorney General’s Opinion. See 74 O.S.2011, § 18b(A)(5).
¶13 It is, therefore, the official Opinion of the Attorney General that:
1. Mug shots are a physical description of an arrestee. Therefore, mug shots are open records under the Oklahoma Open Records Act. 51 O.S.2011, § 24A.8(A)(1).
2. Because mug shots are open records, they must be disclosed to any person upon request. 51 O.S.2011, § 24A.5.
3. Generally, the disclosure of mug shots will not constitute an invasion of privacy because they are public records. McCormack v. Okla. Pub. Co., 613 P.2d 737, 741-42 (Okla. 1980). However, there may be an invasion of privacy if, in addition to releasing the mug shot, the law enforcement agency knowingly or recklessly places an arrestee in a false light in public. Ultimately, whether the release of a specific mug shot constitutes an invasion of privacy involves a question of fact which cannot be answered in an Attorney General’s Opinion. See 74 O.S.2011, § 18b(A)(5).
4. Law enforcement agencies must provide electronic copies of mug shots if: 1) the agency keeps the mug shots in electronic format, and 2) the requestor specifically requests the mug shots in electronic format. See51 O.S.2011, § 24A.8(A); A.G. Opin. 06-35.
5. If the mug shots are not kept in an electronic format, or if the particular electronic format in which the mug shots are requested is different than the one in which the mug shots are kept, the law enforcement agency may convert the mug shots into the requested electronic format, but it is not required to do so. 12A O.S.2011, § 15-117. The law enforcement agency may charge a reasonable fee for the mug shot, including the cost of converting the mug shot into the requested format. 51 O.S.2011, § 24A.5(3).
E. SCOTT PRUITT
Attorney General of Oklahoma
STEVEN W. CREAGER
Assistant Attorney General
1 The analysis contained within the body of this Opinion is limited to mug shots of adult arrestees. The confidentiality of juvenile records is governed initially by 10A O.S.2011, § 2-6-102. The confidentiality of juvenile records extends to “[l]aw enforcement records.” Id. § 2-6-102(A)(4). Law enforcement records under the Oklahoma Juvenile Code include photographs. Id. § 2-6-101(B)(5). If a juvenile record loses the confidential status afforded by Section 2-6-102(A), its release is still governed by the Open Records Act and should be treated as discussed in the body of the Opinion.
2 This Opinion addresses only the disclosure of mug shots by law enforcement agencies and does not address whether dissemination of mug shots by private individuals or organizations constitutes an invasion of privacy. Whether a particular disclosure of a mug shot constitutes an invasion of privacy is a question of fact which cannot be answered in an Attorney General Opinion. See74 O.S.2011, § 18b(A)(5).
3 When recognizing the common law tort of invasion of privacy, the Oklahoma Supreme Court adopted the standards of the Restatement (Second) of Torts. Munley, 584 P.2d at 1340; McCormack, 613 P.2d at 739-42.
4 Law enforcement agencies may charge a search fee if the request is “solely for commercial purposes” or if it “would clearly cause excessive disruption of the essential function of the public body.” Id. § 24A.5(3)(b). However, a search fee cannot be charged to the news media if the record is used for a news purpose. Id.