Discussion:

As discussed above, Commissioner's Advisory Opinion 94-020 dealt with the issue of whether mug shots are classified as public data under Minnesota Statutes Section 13.82. As was discussed in that opinion, the status of this kind of photograph has been ...the subject of discussion and disagreement for a number of years. The Commissioner, in that Opinion, acknowledged that it could be argued that other provisions of Chapter 13 may classify mug shots as not public.

In this case, the County has argued that mug shots are properly classified as private data under Section 13.85, subdivision 1, which states:

Section 13.85, subdivision 2 states:

The key to the County's assertion that mug shots are properly classified under this Section is that they disclose personal data. Again, the legislature has not provided a specific definition of personal , and therefore the dictionary offers guidance. The dictionary defines personal inter alia, as of or pertaining to a particular person; private; one's own.

A definition this broad must be narrowed in order to be meaningful in this context. Clearly the legislature did not intend for any or all data pertaining to detained individuals to be classified as private, or it would not have included the conditions specified in Section 13.85(2)(a) and (b). Therefore, in order for the County to make a reasonable argument that mug shots may be classified under this Section, it must be determined that a mug shot falls within a reasonably narrow definition of personal information.

A limited examination of case law in other jurisdictions is inconclusive. The Michigan Court of Appeals found that mug shots are public records and do not fall under the privacy exemption of the state's freedom of information act. (See Patterson v. Allegan County Sheriff502 N.W. 2d 368 (Mich. App. 1993.) The California Penal Code defines a record to include ...information compiled by any local criminal justice agency...pertaining to the identification...of any person, such as...physical description.... . However, the California Court of Appeals found that ...a mug shot is not a 'record or information obtained from a record' within the meaning of the statutes here relied upon. (See People v. McCloud194 Cal Rptr. 75 (Cal. App. 1983) at 183.)

Given the broadness of the definition of the term personal it may be reasonable for the County to argue that a mug shot is a form of personal data, and given the description of the purpose for the collection of mug shots provided by Mr. Backstrom, it also may be reasonable for the County to assert that these photographs may properly be classified under Section 13.85. However, even though the County's position may be reasonable, it is also problematic.

The Commissioner's authority to issue Advisory Opinions was intended, among other things, to assure consistency of application of Chapter 13 through the employment of the expertise of the Department of Administration to offer consistent interpretation of the statute. As noted, the Commissioner has issued an Opinion which states that [b]ooking photos do not appear to be classified as public by Minnesota Statutes Section 13.82. Booking photos do appear to be classified as public by operation of Minnesota Statutes Section 13.03, subdivision 1.

If the County, and other government entities, were to rely upon Section 13.85 to classify mug shots as personal and therefore private data, while others relied upon Advisory Opinion 94-020 to classify mug shots as public, the value of the opinion authority to ensure consistency would be impeded. It may also lead to further complications, because as is the case here, classification of data as private under Section 13.85 will depend upon whether each agency that collects and maintains corrections and detention data determines that mug shots are personal. It is possible that some agencies would continue to treat mug shots as public while others would treat them as private. The result would be no consistency in the treatment of mug shots.

By contrast, if all agencies that maintain mug shots state clearly in their data practices policies and procedures that they treat mug shots as public in reliance on the Commissioner's Opinion, then the agency should be immunized from financial liability and the state and the public will benefit from consistent treatment of these data.

It is also important to note that important public safety objectives are attained by the treatment of mug shots as public data. In practice, law enforcement agencies make use of mug shots in the investigation of subsequent crimes, through photographic lineups, or the public release of a photograph to aid the apprehension of escapees and other fugitives. If mug shots were to be classified under Section 13.85, they would be private data, and potentially these uses of mug shots could not be made without the informed consent of the data subject.

Mr. Backstrom also asked whether any provision of Minnesota Statutes other than Section 13.82 applies to the classification of mug shots. It does not appear that any of the other Sections of Chapter 13 which govern data maintained by criminal justice agencies is applicable.

The Commissioner issued an Opinion which stated that as the legislature has not stated specifically that mug shots are not public, then mug shots appear to be public data under the operation of Section 13.03, subdivision 1. If the County decides to treat mug shots as private data under Section 13.85, it would result in inconsistent treatment of these data, and would lead to the other problems addressed above. In this instance, the Commissioner concludes that a subject of such public importance and on-going disagreement ought, in the best interests of the State, to be handled consistently. The Commissioner believes that the consistency of interpretation of Chapter 13 is one of the objectives set forth for her by the legislature when it conferred upon her the authority to issue advisory opinions. Therefore, even though there may be a basis within Section 13.85 for determining that mug shots may be treated as private data, it is the Commissioner's conclusion that mug shots are public data.

Opinion: