NORMAN — Even though they've accompanied news stories and broadcasts for decades, the Cleveland County district attorney's office says mug shots taken at the county jail in Norman will not be made available to the public unless there is a legitimate “law enforcement purpose.”
Assistant District Attorney David Batton said mug shots — in most cases — aren't a necessary record to be released to the public. He said some people who've been arrested may be innocent of the charges and that “pretrial detainees” deserve to have their privacy protected.
“We want to make sure and remember that there are two sides to the First Amendment,” Batton said. “The public's right to know on one side and the protection of the individual's privacy on the other.”
Batton said that publications that feature mug shots of local residents are another reason for the policy change. He said these “rags” call up counties on a regular basis to get the photos.
The $1 magazines have titles like “Just Busted,” and usually feature the most bizarre mug shots on the front cover. They are often found in gas stations and convenience stores by the cash register. Typically, little information accompanies the mug shots, if any at all.
Batton said county officials realize that providing mug shots to such magazines could leave them vulnerable to lawsuits.
“Wholesale release of these photos just doesn't serve a law enforcement purpose in most cases,” Batton said. “Plus, the placement of the mug shots in these magazines subjects people to public scrutiny.”
Most counties in Oklahoma, regardless of size, routinely email digital copies of inmates' mug shots to the news media.
Batton said the county's policy change followed a ruling by 10th U.S. Circuit Court of Appeals in February, which stated that releasing mug shots isn't always required under the Freedom of Information Act.
Batton said the ruling, despite being in federal court, should translate well locally. “I think the application is clear in Oklahoma,” he said.
Under federal law, a mug shot can be exempted from disclosure if releasing it “could reasonably be expected to constitute an unwarranted invasion of personal privacy."
In the case Batton is using as precedent, the Tulsa World sued the U.S. Marshals Service after the agency refused to provide mug shots of six individuals who were indicted by federal grand juries and taken into custody.
The 10th U.S. Circuit Court of Appeals affirmed a 2011 ruling by a Tulsa judge, who also had found that the mug shots in question were exempt under the law.
Cleveland County Sheriff Joe Lester said his department is complying with the new policy, although he declined to offer his opinion on the subject when asked by The Oklahoman.
“We are going to follow the advice of the county's legal counsel, who is advising us not to release those photos,” Lester said in a statement.
Oklahoma's open records laws don't specifically list mug shots as items to be made available for public inspection, although the phrase “jail booking information” is included in the text.
And unlike federal open records laws, Oklahoma statutes don't feature an exemption for mug shots.
Diane Clay, a spokeswoman for the Oklahoma attorney general's office, said the mug shot issue isn't a new one.
“This isn't the first time this issue has been discussed,” Clay said. “And it may be a situation where an attorney general's opinion needs to be requested.”
Clay said the opinion process “is very thorough ... and involves several different people around the office.”
“It allows us to study the law, get different points of view ... it's a very comprehensive process,” she said.
In the meantime, Batton said he's not aware of other state counties with a similar mug shot policy in place.
“We don't care what other counties are doing,” he said. “We evaluated the case law and decided this is what's best for us.”
Batton said the county still will release mug shots, just on case-by-case basis.
County officials also will be the ones deciding whether a mug shot should be released.
“If law enforcement has a purpose to ID this person ... they're going to release the photograph,” he said. “If not, they won't.”
CONTRIBUTING: Correspondent Robert Boczkiewicz