The undersigned criminal justice advocacy organizations strongly support Governor Cuomo’s amendment to the State’s Freedom of Information Law (FOIL) that would ban the public disclosure of photos and booking information compiled by law enforcement agencies when they make arrests, mirroring policies already in place in federal agencies. Publishing a person’s arrest photo and information not only constitutes an invasion of personal privacy but perpetuates unjust stigma and discrimination, particularly for low-income individuals and people of color who are disproportionately arrested in our country. As the Sixth Circuit Court of Appeals ruled in Detroit Free Press v. United States Department of Justice, “A disclosed booking photo casts a long, damaging shadow over the depicted individual.” The Governor’s proposed amendment will help curtail this practice and the resulting obstruction of individuals’ opportunities for economic and social stability.
It has been a national problem for several years now that websites advertising individuals’ “mugshots” have perpetuated the undue collateral consequences of justice-involvement by turning an investigative tool into a lifelong mark of criminality, and some have even extorted the subjects by demanding payment for photo removal. While several states have prohibited these websites from charging such a fee, Governor Cuomo’s amendment would be even better, prohibiting their publication in the first place. While this reform cannot erase information and photos already online, it can stop this destructive practice moving forward.
Many Americans incorrectly assume that a “mugshot” means that a person has committed a crime. They do not realize that it is the first step in a process that often leads to charges being dropped or dismissed, or a verdict of “not guilty” being rendered. The proliferation of “mugshot” websites and their rash sharing of misleading, often incomplete, arrest information and photos does nothing to communicate this fact and only fuels stigma and discrimination.
The proposed legislation wisely exempts from restrictions on disclosures instances where police are seeking the public’s help, such as searching for a fugitive or alerting victims or witnesses to come forward to aid in a criminal investigation.
It is important to understand that arrest and booking information has not been found by courts to have the same public right of access as criminal court proceedings or court filings. The Sixth Circuit wrote in the Detroit Free Press case that privacy interest is heightened on this matter because “booking photographs often remain publicly available on the Internet long after a case ends.” Likewise, the Sixth Circuit noted that “mugshots…contain information that is intended for the use of a particular group or class of persons,” further exempting these photos from public record laws. Like fingerprints, arrest photos are a tool meant to be utilized by law enforcement to identify people, not to broadly publicize their arrest.
When freedom of information is manipulated to further oppression, it must be limited. The mass imprudent publication of “mugshots” online adversely affects the lives of tens if not hundreds of thousands of New Yorkers, many of whom have never been convicted, and others who have fulfilled their sentences and deserve a meaningful second chance. Governor Cuomo’s proposed amendment, which would follow the federal Department of Justice’s policy, will help to combat the stigmatization of numerous New Yorkers and the discrimination they face in securing housing, employment, education, and more.
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Center for Community Alternatives
Center for Employment Opportunities
Center on Race, Inequality, and the Law
College & Community Fellowship
Community Service Society of New York
Correctional Association of New York
The Fortune Society
Greenburger Center for Social and Criminal Justice
Legal Action Center
The Legal Aid Society
TASC of the Capital District, Inc.
Women’s Prison Association