April 19, 1994; Blue Earth County
4/19/1994 10:14:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Note: Due to a legislative change in 1995, booking photographs are now classified as public under Minnesota Statutes, section 13.82, subdivision 26. Facts and Procedural History:On March 29, 1994, PIPA received a request for an opinion from Mr. Mark R. Anfinson, the General Counsel of the Minnesota Newspaper Association. Mr. Anfinson stated that he was requesting an opinion on behalf of his newspaper client, the Free Press at Mankato, Minnesota. In his letter, Mr. Anfinson described a request, that was made by a reporter for the Free Press to the Blue Earth County Sheriff's office, to receive a copy of a booking photo. He stated that in the past, that the Sheriff's office had regularly provided these photos to reporters working for his client. In this particular instance, the request for the photo was refused and the Sheriff's office gave Minnesota Statutes Section 13.82, subdivision 5 as the basis for that denial of access.Mr. Anfinson went on to discuss his view of the status of booking photos for purposes of the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter MGDPA . It is Mr. Anfinson's view that booking photos cannot be classified as active investigative data under Minnesota Statutes Section 13.82, subdivision 5. He quoted the MGDPA description of what constitutes active criminal investigative data and argued that a booking photograph would virtually never be used to prepare a case against a person. It was his position that booking photographs are used by law enforcement agencies to document the identity of someone who has been detained and are hardly ever used to prepare criminal cases. He acknowledged that there may be rare instances in which a booking photo could be active investigative data. He used an example of a booking photo taken in a previous incident and used in the investigation of a later crime. He concluded by saying that, because a photo might occasionally be relied on in preparing a criminal case, this occasional use should not, in all cases, preclude the public's access to all booking photos maintained by a government agency. In response to Mr. Anfinson's request, PIPA, on behalf of the Commissioner, wrote to Mr. LaRoy Wiebold, the Blue Earth County Sheriff. The purposes of this letter, dated March 30, 1994, were to inform Sheriff Wiebold of Mr. Anfinson's request for an opinion, to ask Sheriff Wiebold or the Blue Earth County Attorney to provide any information about or support for the Sheriff's position and to inform them of the date by which the Commissioner was required to issue this opinion. Copies of this letter were sent to Mr. Ross Arneson, the Blue Earth County Attorney and Mr. Anfinson. The Sheriff and the County Attorney were asked to submit any comments no later than April 13, 1994. No comments were received.
Issues:
In his request for an opinion, Mr. Anfinson asked the Commissioner to address the following issue:
Discussion:
The status of booking photographs, also known as mug shots , for purposes of the MGDPA has been the subject of discussion and disagreement for a number of years. In the last legislative session, bills were introduced to clarify the status of booking photos. After some discussion and preliminary action by the Senate, there was no final legislative action taken in the 1993 session. (See H.F. 206 and S.F. 183, both of which were introduced on February 1, 1993.)
No provision of the MGDPA or any other provision of Minnesota Statutes appears to explicitly deal with the subject of booking photos. For example, a review of the items and types of data made public by Minnesota Statutes Section 13.82, subdivisions 2-4, does not include any specific reference to booking photos. However, it is clear from the publication of daily newspapers and the broadcast of television news programs that a number of law enforcement agencies are making booking photos available to the public. Those agencies must have found some basis in the MGDPA for making booking photos public data. In this particular instance, according to Mr. Anfinson, the Blue County Sheriff's office, hereinafter Sheriff's Office , has denied his client access to a booking photo and stated that the photo in question is classified as confidential by Minnesota Statutes Section 13.82, subdivision 5. This provision of the MGDPA classifies . . . data collected or created by a law enforcement agency in order to prepare a case against a person, . . . for the commission of a crime or civil wrong . . . . as confidential or protected nonpublic. These classifications only apply when the investigation for which the data are being collected is active. Active criminal investigative data are classified as confidential or protected nonpublic. These particular classifications are defined by the MGDPA so that they preclude access by the data subject to the data in question. (See Minnesota Statutes Section 13.02, subdivisions 3 and 13. In the context of Minnesota Statutes Section 13.82, subdivision 5, this represents, among other things, a legislative judgement that criminal investigative data should not be available to the subject of that data. However, in the case of a photo taken of an arrested individual, that individual knows very clearly, after participating in the booking process, that the arresting agency has taken a photo of him or her. It does not follow logically that the arrested person should be denied access to any data concerning the photo taken of them. The various provisions of the MGDPA and other statutes that define the types of data that are classified as not public should be interpreted reasonably. To say that a provision of the MGDPA that classifies certain data as confidential should be applied to data that is a non-surreptitious photo taken of the data subject is not a reasonable interpretation of the MGDPA. The subject of the booking photo already knows that the Sheriff's Office is maintaining this data about him or her and just exactly what the data are. Mr. Anfinson's point that it is difficult to see how, except in very rare instances, a booking photo can actually be data collected or created by a law enforcement agency to prepare a criminal case against an individual is also well taken. By the time of an individual's arrest in most cases, much of the data that is being collected or created to prepare the criminal case against the individual has already been collected or created by the law enforcement agency. Mr. Anfinson's conclusion, that booking photos are taken by law enforcement agencies to document the identity of persons detained by them, is very well taken. Data collected for the purpose of documenting the identity of an individual arrested is not data collected or created for the purpose of preparing a criminal case against that individual. None of the various other provisions of Minnesota Statutes Section 13.82 that classify data as not public appear to apply to booking photos. If booking photos are not classified by any of the provisions of Minnesota Statutes Section 13.82, then in this particular instance booking photos should be treated as public data pursuant to the general rule for all government data as set forth in Minnesota Statutes Section 13.03, subdivision 1. Although arguments may be made that other provisions of the MGDPA may classify booking photos as not public, those arguments were not made by the Sheriff's office in this instance. Absent those arguments and, as discussed above the fact that Section 13.82 does not explicity mention booking photos, the photos should be treated as public data. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Anfinson is as follows:
Signed:
Debra Rae Anderson
Dated: April 19, 1994
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