A Victory for Freedom of Information: Decision to Release Booking Photos has Statewide Implications

Guest Editorial

Despite Montana’s strong public information laws, news organizations in many Montana counties have long fought for the public’s right to access the photographs taken of accused criminals when they are booked into jail.

Thanks to a recent district court ruling, that fight has been largely settled. Not surprisingly, public access triumphed. News media across Montana will soon be able to publish booking photos along with relevant crime stories.

Booking photos – or “mugshots” in news industry parlance - are important public information. For one, photos are an engaging visual device that helps catch readers’ attention. When law enforcement want help locating a suspect, they often release a photo because many more people may recognize someone by face than by name. Further, reader recognition may help investigators make connections that would aide in prosecution – or defense.

Moreover, mugshots are useful tools for identifying individuals accurately. Two different people may share the same name, but it’s highly unlikely two people will share the same name and face.

Hopefully, the publication of booking photos will prove useful to law enforcement in another way: helping to deter crime. Perhaps if more people are worried about having their photos appear in news stories, more people will opt not to break any laws.

But mugshots don’t indicate guilt or innocence any more than a name on a jail roster does. It means the individual pictured has been arrested and charged with a crime. Guilt or innocence will be determined in court.

In the meantime, Montanans have the right to know who in their community has been arrested and what crimes they are being charged with. Paying attention to such things is part of being an involved member of the community. It helps us keep our neighborhoods safe and our criminal justice systems accountable.

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Unfortunately, until recently Montana law has been somewhat fuzzy on whether mugshots should be treated as confidential or public criminal justice information, with the result that each county has decided for itself whether to release booking photos. Notably, in counties like Broadwater and Yellowstone where photos are routinely released, there haven’t been any significant problems arising from public access of mugshots.

But in counties like Missoula, Gallatin, and Lewis and Clark counties, where mugshots have more often than not been treated as confidential, it’s been an ongoing source of contention.

On the one hand, Montana code lists “fingerprints and photographs” among the items considered “confidential criminal justice information.” On the other, booking photos also fall under the category of initial arrest information, which is considered public. News media and other open records advocates often point out that county sheriffs can and do release these photos when seeking the public’s help identifying or locating a suspect.

Public information experts have reasonably argued that the confidentiality of photographs referred to in Montana statutes concern only those photos gathered in the course of an investigation – crime-scene photos and the like. Indeed, it takes some stretching to cover mugshots under this definition, yet that’s just what some county attorneys in Montana have done.

This past October, District Judge Jon Oldenburg brought some much-needed perspicacity to the argument when he ruled that Park County must release the booking photo of Jovanne Lee Ashley, a registered violent offender charged with attempted deliberate homicide and aggravated assault, to the Livingston Enterprise.

The ruling set a statewide precedent because following Oldenburg’s decision, Montana Attorney General Tim Fox declined to issue his own ruling. Gallatin County Attorney Marty Lambert requested in September that the Montana attorney general provide an official opinion on the matter of booking photos, but Fox declined in December, citing the Park County ruling.

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The Attorney General’s Office considers the issue decided, but the details remain to be worked out.

Gallatin County, for one, appears to be digging in its heels; Lambert appears to be under the impression that media must file a motion and obtain a court order on an individual basis in order to gain access to a booking photo. This process is likely to drag on past the time a defendant would make an initial appearance in court, which is open to the public and news photographers.

Missoula County Attorney Kirsten Pabst, on the other hand, is being much more reasonable. She acted quickly and decisively to change the county’s approach to releasing mugshots, and she recently informed the editor of the Missoulian that she is writing a formal county opinion on the matter. Already, she has told Missoula County Sheriff’s Department that booking photos are part of arrest records and should therefore be considered public criminal justice information.

Pabst’s reasoning appears to align with that of Fox, who told the Missoulian editorial board that when it comes to releasing mugshots, counties should “err on the side of disclosure.”

In certain cases, counties may have a compelling reason to withhold a booking photo that has evidentiary value, for example. But for the most part, releasing mugshots should be “the default,” Fox said.

“The issue’s somewhat settled,” he added.

The next Legislature should take steps to settle the issue completely. Montana’s legislators should make sure that when it comes to treating mugshots as public information, every county in the state is on the same page.

The district court ruling and the attorney general’s supporting statements may fall short of a decisive statewide legal opinion that would settle any future arguments once and for all. They do, however, mark a major victory for freedom of information in Montana. Now, it’s all over but the shouting.

 

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