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 FOIL-AO-13902

February 20, 2003

 

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.

Dear

I have received your letter in which you questioned the propriety of a county jail providing
your photograph to a newspaper following your arrest for a parole violation.

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.

The provision of greatest significance is §87(2)(b), which 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, it is assumed that individuals arrested 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 this office is 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)].

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

I hope that I have been of assistance and the foregoing serves to enhance your understanding
of the law.

Sincerely,

David Treacy
Assistant Director

DT:jm