A big change to the state’s FOIL (Freedom of Information) laws happened with the passage of the state budget last month as it pertains to who can request arrest files. The amendment was partially intended to shield people from being exploited.
One line tucked inside an omnibus bill in the state budget is causing a lot of confusion among law enforcement and their legal departments. It reads, “prohibits disclosure of law enforcement booking information and photographs.” So what does that mean, exactly?
“Does the public interest in seeing the material outweigh the individuals’ privacy right? It got rid of that. And now to get mug shots through FOIL, a person has to show a legitimate law enforcement purpose, which is just silly. They have to show that it serves law enforcement interests in order for mug shots to be released to the public.”
That’s Justin Harrison, a Legislative Attorney for the New York Civil Liberties Union. He says the law doesn’t really prevent police departments from changing their arrest photo release practices and other booking materials.
“You can usually get mug shots via a foil request. Not anymore, under this law. Now, you have to show a law enforcement purpose. The law doesn’t define law enforcement purpose and so because the law is relatively new, we don’t know what that means, we don’t know how agencies and courts are going to interpret it and that’s where it sits.”
He adds that before the amendment was made to the state FOIL law, the average citizen, journalist and researcher could simply file a request for mug shots. However, Harrison says authorities can still decide if they want to release mugshots. Syracuse Police Public Information Officer Matthew Malinowski agrees.
“Using the interpretation of the law with our department’s legal counsel and the city’s legal team, we have determined that there is specific law enforcement purposes that we can use booking photos. Examples of those would be for missing person investigations or where there’s a wanted party where we need the public’s assistance in.”
The public release of mug shot debate began over website owners obtaining mug shots through FOIL to make a profit by posting them online and keeping them there until the individuals paid to have them removed.
Brett Orzechowski is an author of a book about the state’s FOIL laws and a professor of Management and Media at Utica College. He says people who may have been arrested for low level offenses were very concerned by the tactics of predatory, pay to remove websites.
“When you see a name on an arrest report, it carries a much different weight than a mug shot. And when a mugshot is released, people sort of have a different emotional connection to it; as opposed to their name, which I always thought was odd because it’s so easy now to identify people; especically in public places with the advent of video and public . video cameras.”
He believes the decisions that authorities make to release mugshots will prove to be very difficult to discern.
“How does that play out? Where, if you have the mug shot, if you have somebody who’s committed a crime or allegedly committed a crime and had a prior offense… you do have him or her in their mug shot, now you’re going to have to think twice about release that? It doesn’t really make sense. I haven’t heard anybody say this is a really good idea.”
He adds that amending the FOIL law was a big mistake.
“From what I’ve law enforcement’s reaction to having this included not only in the state budget but, overall how this was even floated. You think about all the reasons why, especially in 2019 why images are important, especially with public safety; this defies logic.”
Although, incoming Republican Senator Bob Antonacci of Syracuse voted down the entire state budget but, he supports avoiding the sale and exploitation of mug shots. He believes that authorities have been doing a good job of interpreting the new law.
“Different County Sheriff’s Departments across the state are coming up with their own policies that they are going to continue releasing the mug shot. I guess, unless the Governor’s office decides to sue them or some other group decides to sue them. I’m good with that. Business as usual is fine by me in this area. Again, I would caution all that if someone is accused of a crime and ultimately found not guilty or the charges are dismissed, they shouldn’t have to be continually harangued and hounded by a mug shot being out in the universe.”
However, the Senator says he supports mug shots as a means for the safety of the accused and the public. He believes the photos and police reports remain accessible to the public, something that the new foil law curtails.
