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Legislative Affairs

One Whitehall Street


New York, NY 10004
212-607-3300
www.nyclu.org

2019-2020 Legislative Memorandum

Subject: “Mugshot” and Booking Information Ban

Bill(s): Executive Budget Proposal, P.P.G.G. Article VII Legislation,


A.2005-A / S1505-A, Part II, Subpart K

Position: OPPOSE

Arrest photos can affect one’s personal life, job prospects, educational
opportunities, housing options, and career advancement – and companies should
not have free reign to profit off of this black market in privacy. However, the
Executive Budget’s proposed legislative ban on the release of all “booking
information” is simultaneously much broader than needed to address these privacy
concerns, and far too narrow to offer those arrested any meaningful measure of
privacy.

Importantly, nothing in this legislation would prevent law enforcement from


publicizing photographs or other information from an arrest, including for the overt
purpose of public shaming. If enacted, it would still permit the mugshots of people
who are never charged, or who are exonerated, to be posted online. And in seeking
the secrecy of all booking information, the bill would sweep into secrecy the sort of
basic demographic data that is critical for public accountability over the arrest and
booking process. As such, while it offers little to protect arrestees’ privacy, this
measure would unduly restrict proper access to public records which are critical to
police oversight – all in the name of solving a problem New York’s courts have
already begun to address independently, and with more precision.

The NYCLU opposes this measure, and urges lawmakers and the Governor to
omit it from final state budget legislation.

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Governor Cuomo’s proposed “mugshot ban” is a personal privacy measure


that would amend §89(2)(b) of the state’s Freedom of Information Law (FOIL) to
prohibit law enforcement and other government agencies from releasing arrestee

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photos – colloquially known as mugshots – and “booking information” in response to
FOIL requests from the public, unless the release serves a “specific law enforcement
purpose.”

The ban is intended to address a real problem: an extortionate form of


internet-based public shaming in which so-called “pay-to-remove” websites collect
arrestees’ booking photos from various law enforcement agencies via FOIL requests,
post the photos online, and then charge arrestees a hefty fee to take them down. If
an arrestee does not pay, the humiliating photos remain on the internet forever,
invariably appearing whenever someone searches the Internet for an arrestee’s
name – even if charges are dropped, the arrestee is exonerated, or a conviction is
later expunged.

The consequences of this can be severe and long-lasting. Years after an


arrest, no matter how a charge was resolved, and to no discernable public benefit,
arrest photos can impact the subject’s personal and romantic life, child custody, job
prospects, college or other educational opportunities, rental or license applications,
and career advancement. Simply put, the “pay-to-remove” business model is a
problem very much worth solving. Unfortunately, this proposal is not the solution.

The Measure is Ambiguous and Overbroad, and Restricts Public and


Journalistic Oversight of Policing Activity

The Executive Budget proposal does not define “booking information,” so it is


does not clearly specify which data might qualify for exemption under the FOIL.
But “booking info” is by definition a broad term for all information collected during
the booking process, including the name, arrest date, charge, and suspected
criminal activity of an arrestee. It may also include an arrestee’s race, gender, age,
religion, home address, driver’s license information, and other personally
identifying details such as height, weight, hair and eye color, and more. The
measure therefore appears to secret from public view or inquiry every piece of
information collected during booking – a far broader reach than just mugshot
photographs.

What’s more, the measure asserts that protected information may be released
only for “specific law enforcement purpose[s],” but leaves that phrase undefined as
well. This is improper for several reasons. The phrase’s ambiguity means that, in
practice, a “specific law enforcement purpose” is likely to be whatever law
enforcement says it is, and nothing else. But more importantly, the phrase defeats
the public purpose of FOIL: to shed light on government activity and keep the
public informed about how the government is doing its job. Booking photos and
arrest information can serve important research and oversight purposes. They can
reveal racial, cultural, or other biases in arrest patterns, illustrate trends in
enforcement of questionable criminal laws, and even serve as evidence of how an
arrestee was treated while in police custody. But absent a specific law enforcement
purpose, these other entirely legitimate public purposes appear to be foreclosed.

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The standard for evaluating privacy concerns in the context of FOIL should
remain as it is now: whether an individual’s privacy interest in the data being
requested outweighs the public’s interest in seeing it. That standard is sufficient to
keep humiliating information out of the hands of those who would exploit it
commercially, while allowing legitimate inquiry into government activity.

The Measure Restricts Public Access to Booking Information, But Still


Permits Government Publication for Virtually Any Purpose

Preventing public access to arrest data via the FOIL process does nothing to
address the government’s own everyday use and release of that data. This proposal
would allow the government to assert privacy grounds in order to deny FOIL
requests – written requests by third parties, potentially including exploitative
websites, for arrest photos and booking data. But it does nothing to curb the
government’s own voluntary disclosure of booking photos and data pursuant to
fugitive alerts, news releases, or even intentional public shaming. That sort of
publication is governed by a different legal standard, under which a person’s arrest
records are generally afforded very little privacy protection.

The Measure Is Unnecessary as Courts Move to Resolve the Problem

Lastly, New York’s courts have already begun to address the “pay-to-remove”
business model. Under current FOIL law – that is, without the amendment offered
here – an agency may refuse to release information that violates an individual’s
personal privacy, so long as that privacy interest outweighs the public’s right to
know about government activity. Mug shots and arrest information historically
have been considered public records that receive little privacy protection, but even
so, New York’s appellate courts have repeatedly ruled that the “pay-to-remove”
business model – essentially online shaming for profit – serves no public interest
and that FOIL requests for such purposes can be denied outright.

Conclusion

The Executive Budget’s proposal appears to be a well-intended effort to


secure the privacy of those who have been arrested. However, the worst practices
related to publication of booking information and arrest photos are already being
resolved by courts, and the measure does not take a properly balanced approach to
who may access or utilize mugshots and other arrest information. The NYCLU calls
for lawmakers to reject its inclusion in final budget legislation, and reconsider the
merits of its approach before advancing any similar measures.