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October 5, 1998

 

Mr. Patrick T. Morphy
Corporation Counsel
City of Troy Department of Law
City Hall
One Monument Square
Troy, NY 12180

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the information presented in your correspondence,
unless otherwise indicated.

Dear Mr. Morphy:

I appreciate having received a copy of your response to a request by Ms. Amy Ferraro of Fox
News at Ten for mugshots maintained by the City of Troy Police Department relating to the arrests
of four individuals.

You denied access and wrote that you "assume[d] that all of these persons have been so
recently arrested that none of their criminal cases have yet been resolved, and that you have not
obtained their permission for release of these records." You also expressed the view that "releasing
such a photo at a time when the person has merely been accused of a crime is something that most
reasonable people would find offensive". Based on those contentions, the records were denied on
the ground that disclosure would constitute "an unwarranted invasion of personal privacy."

I respectfully disagree with your determination. In this regard, I offer the following
comments.

First, as a general matter, the Freedom of Information Law is based upon a presumption of
access. Stated differently, all records of an agency are available, except to the extent that records or
portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the
Law.

I agree that the provision of greatest significance is the exception that authorizes an agency
to withhold records to the extent that disclosure would result in an unwarranted invasion of privacy.
From my perspective, that standard is flexible and is subject to a variety of interpretations. A
reasonable person viewing a particular item of personally identifiable information might feel that
disclosure would be offensive, thereby resulting in an unwarranted invasion of personal privacy. An
equally reasonable person might contend that disclosure of the same item would be appropriate or
inoffensive, thereby resulting in what might be characterized as a permissible invasion of privacy.

With respect to the subjects of mugshots, all are persons who were arrested. It is assumed
that all could have been seen during judicial or other proceedings (i.e., arraignments) that were open
to the public. If the public can be present at or view a proceeding during which an arrestee can be
identified, it is difficult to envision how a photograph of that individual would constitute an
unwarranted invasion of personal privacy.

While disclosure of mugshots might embarrass or humiliate the individuals in those photos,
there are many instances in which records have been determined to be available even though they
represent events or occurrences that may be embarrassing. When individuals are arrested and/or
convicted, their names and other details about them are generally made available and may be
published; when a public employee is the subject of disciplinary action, that person's name and other
details about him or her are accessible to the public, irrespective of whether the individuals to whom
the records pertain may be embarrassed by their actions [see e.g., Daily Gazette v. City of
Schenectady, 673 2d 783, (A.D. 3 Dept. 1998); Anonymous v. Board of Education for Mexico
Central School District, 616 NYS 2d 867 (1994); Scaccia v. NYS Division of State Police, 520 NYS
2d 309, 138 AD 2d 50 (1988); Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975);
Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley
v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981]. In short, in many cases, even though
individuals may be embarrassed by particular aspects of their lives, that factor may have little or no
bearing upon public rights of access to records concerning what might be considered as public events
in which the public interest in disclosure outweighs an individual's interest in privacy.

In the only decision of which I am aware that dealt with facts pertinent to the instant situation,
a similar argument was offered, but the court determined that the mugshots regarding all persons
arrested must be disclosed, unless charges were dismissed in favor of the accused. In general, when
charges against an accused are dismissed or terminated in favor of the accused, the records pertaining
to the event become sealed under the Criminal Procedure Law, either §160.50 or §160.55. When the
records are sealed, they are exempted from disclosure under the Freedom of Information Law
[§87(2)(a)]. With respect to disclosure of the mugshots of those persons against whom the charges
were pending in which the records had not been sealed, the court held that the agency could not meet
its burden of proving that the privacy exception could validly be asserted [Planned Parenthood of
Westchester, Inc. v. Town Board of the Town of Greenburgh, 587 NYS2d 461, 463 (1992)].

Having reviewed the decision to which you referred, I believe that it is factually different from
the situation at issue. In Leibowitz v. Safir (674 NYS2d 736, AD 2 Dept. 1998), the court upheld
a denial of access to records pursuant to §160.50(3)(j) of the Criminal Procedure Law, which
provides that a criminal action is deemed terminated when an arrested person is released without
being prosecuted. The cited provision states that a criminal action is considered terminated in favor
of an accused when:

"following the arrest of such person, the arresting police agency, prior
to the filing of an accusatory instrument in a local criminal court but
subsequent to the forwarding of a copy of the fingerprints of such
person to the division of criminal justice services, elects not proceed
further."

It is my understanding that the arresting police agency has not elected not to proceed; on the
contrary, based on a discussion with a representative of Fox News at Ten, it appears that the cases
against those named are proceeding. If that is so, the Leibowitz decision would not be relevant and
the records would not be exempt from disclosure.

In sum, unless the cases against the individuals charged are considered to have been
terminated, in which instances the mugshots would be sealed, I believe that the mugshots must be
disclosed.

If you would like to discuss the matter, please feel free to contact me. I hope that I have been
of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Amy Ferraro
Kathy Gazda