bustedmugshots.com owner suing Salt Lake County for jail booking pictures

The owner of a mug-shot website wants a judge to decide on whether Salt Lake County can invoke copyright to withhold booking photos.

As Mike Gorrell reports, Kyle Prall, owner of bustedmugshots.com, is going to court to overturn the county’s denial of his Government Records Access and Management Act (GRAMA) request for 1,388 mug shots taken between Jan. 11 and Jan. 27. The county claimed the pictures were classified as protected records under the federal Copyright Act.

The move is an effort by the county to keep the mug shots off websites that publish the pictures, only removing them if the person pictured pays a fee. Salt Lake County Sheriff Jim Winder has also removed the pictures from the jail’s website, requiring those who seek them to file a GRAMA request.

Prall’s site offers to remove pictures for free for those who have been acquitted or not charged, while charging others at least $98 to take down their pictures.

Prall argues that if allowed to stand, the copyright argument could be used to undermine open-government laws.”

Federal copyright law also states that government cannot claim copyright for any documents it creates.

Prall claims the county’s move also flies in the face of GRAMA by allowing government to withhold records based on how they plan to use the documents. GRAMA does not look at the requester’s intent when weighing whether a record should be released.

County Council Chairman Steve DeBry declined to comment, citing the lawsuit.

New Jersey bill would make mug shots public records

Just as Utah officials are looking for ways to restrict access to mug shots, New Jersey is going in the opposite direction.

The Daily Record of Parsippany, N.J., reports that a bill is moving through the Garden State’s legislature classifying booking photos as public records. The state’s open-records laws were ambiguous on the point, with some counties denying access and others granting it.

“Releasing pictures of defendants puts a face with a name,” the bill’s sponsor, Assemblyman Ronald S. Dancer, R-Ocean County, told the paper. “These pictures serve important public purposes, including protecting the transparency and integrity of our legal process for victims and offenders, helping to identify criminals on the run and keeping law-abiding citizens informed about the crimes and potential criminals in their communities.”

Dancer’s bill would require mug shots to be released to the public within 24 hours of an arrest when practical.

Local prosecutors had read state law as meaning they could withhold mug shots. They also argued that releasing the photos could possibly taint the jury pool.

But the bill’s supporters say there is no evidence that releasing the photos would sway potential jurors.

“If the prosecutors were right, then we should never release arrest information, because that will taint the jury pool, too,” Walter Luers, an open-government attorney, told the Daily Record. “The fact is any coverage any time the information gets out will taint the jury pool.”

Contrast that to Utah, where several jailers are making it more difficult to download — or even view — mug shots in an attempt to keep them away from mug-shot websites that purportedly charge people to remove the images.

Salt Lake County, for example, no longer posts mug shots online, requiring people to file a request under the Utah Government Records Access and Management Act to get copies. And even that isn’t a guarantee, as the owner of bustedmugshots.com learned.

In that case, the county declared that the mug shots couldn’t be released because that would violate copyright laws.

This year, the Legislature passed — at Salt Lake County Sheriff Jim Winder’s insistence — HB408, which requires people filing GRAMA requests for mug shots to sign a sworn statement that they won’t post the pictures on websites that charge to remove them.

The New Jersey bill is headed to committee.

Salt Lake County declares jailhouse booking photos copyrighted material

In the latest round in the fight against mug-shot websites, Salt Lake County has copied an idea from the recording industry.

As The Salt Lake Tribune’s Mike Gorrell reports, the Salt Lake County Council unanimously voted to deny a GRAMA request Tuesday from Kyle Prall for almost 1,400 mug shots taken in January. Prall is the owner of the bustedmugshots.com website, which posts booking photos from around the country.

Prall’s site offers to remove mug shots of people who died, had their charges dismissed or were found innocent for free, while others have to pay fees, starting at $98, to remove the picture from the page.

But Salt Lake County Sheriff Jim Winder denied the request, claiming the photos were protected records because they were copyrighted images, even though copyright rules typically do not extend to documents created by the government or for it.

For instance, Dorothea Lange’s iconic “Migrant Mother” photograph is in the public domain because it was created for the federal Farm Security Administration.

But the county council concurred with Winder. “I don’t like what Mr. Prall does,” County Councilman Dave Wilde said. Wilde is described as “a strong advocate of more openness” on the council’s website.

Winder also pushed for HB408, which requires those seeking copies of booking photos to sign a sworn statement promising not to publish the pictures on websites that charge for their removal. Those who violate the law can be charged with lying to police and possibly go to jail for up to six months.

David Reymann, Prall’s attorney, described the decision and its rationale as “absurd.”

“The County Council’s decision was driven by who my client is,” Reymann said. A Salt Lake City media attorney, Reymann said he has never seen copyright invoked as a reason for denying access to a public document.

If the sheriff’s logic were universally applied, Reymann said it could cut off the public’s access to almost any document.

David Cuillier, a journalism professor at the University of Arizona and president-elect of the Society of Professional Journalists, agreed.

“Copyright has no relevance to public records,” Cuillier said. “I think mug shots should be public.”

While mug-shot sites may be looked down on, Cuillier said publishing booking photos is not about embarrassing those arrested. Rather, it ensures that the justice system is transparent.

Cuillier explained that mug shots demonstrate that a person has been arrested, and that they have not been beaten or tortured by police at the time of their arrest. He contrasted that with third-world dictatorships where people would “disappear” with no explanation.

He said both HB408 and Salt Lake County’s actions do not bode well for American-style democracy and civil liberties.

“If Utah officials want a Stalinist society, they’re off to a good start,” Cuillier said.

Reymann said he would encourage his client to appeal, which would mean filing suit in district court. The county does not recognize the State Records Committee’s authority to hear GRAMA appeals.

2013 Legislature: Not worst on open-government issues, but could have done better

If the 2011 Utah State Legislature, which railroaded HB477 through, was regarded as the worst for access to public records, 2013 was a significant improvement.

“In the end, it was good for open government,” said Linda Petersen, president of the Utah Foundation for Open Government.

One noticeable difference: Legislators were more willing to consult with the Utah Media Coalition — which includes The Salt Lake Tribune and other Utah media outlets — on open-government bills. In contrast, HB477, which gutted the Government Records Access and Management Act (GRAMA), was written in closed-door meetings and rushed through committee meetings in the waning days of the Legislature.

“I never saw so much effort by the Legislature to include the media,” Petersen said. “They still have the notion that open government is about media access.” Petersen said open government is for all Utahns, and journalists use it as representatives of the public.

But lawmakers could have done better, as they allowed some bills to pass that restricted access to public records such as Utah Transit Authority trip data and jail booking photos.

“I’ll give them an A-minus or a B-plus,” said Joel Campbell, associate professor of print journalism at Brigham Young University. “They rejected some bills that would have closed access to government records and passed bills that gave access.”

On the plus side, legislators passed SB77, Sen. Deidre Henderson’s bill requiring recordings and written minutes of public meetings to be posted on the state’s public meeting notice website. Campbell said the Spanish Fork Republican’s bill puts the meeting records together in one place, rather than having people looking all over the Internet for different websites.

Henderson’s other open-government bill, SB283, is one that, Campbell says, looks good on the surface. It directs the state’s Transparency Advisory Board to look at making more public records available on the state’s Transparency website.

But, Campbell noted the details give cause for concern. The board’s final recommendations have to be approved by the Legislature, a body Campbell said has been too willing to close access to public records.

SB94, Sen. Curt Bramble’s open-government bill creates an online repository lawmakers can place email into, so the public can see it without having to file a GRAMA request. It also takes away the state auditor’s seat on the State Records Committee, making it a public seat.

Campbell said the email repository looks good on paper, until one realizes that participation in it is voluntary. He doesn’t see too many legislators willing to contribute to it if left to their own devices.

And the records-committee provision is a point of concern for Campbell and others. In December, incoming State Auditor John Dougall — who sponsored HB477 when he was in the Legislature — fired Betsy Ross, the auditor’s representative on the committee.

Ross was an opponent to HB477 and regarded as a champion of open government.

The Legislature did shoot down HB307, Rep. Brian Greene’s proposal to strip birthdates off public records such as voter rolls and court records. Greene, a Pleasant Grove Republican, claimed the bill was necessary to protect Utahns from identity theft and elder abuse, even though critics — including the leaders of the state Democratic and Republican parties — pointed out that there is no case where someone used public records to commit identity theft.

But the Legislature also failed to pass Rep. Kraig Powell’s HB207, which would have required public entities to post meeting notices three days before a meeting. Campbell said that would have provided people with more information on what public entities are doing, but it was watered down at the request of the Utah League of Cities and Towns on the grounds that it could open cities to lawsuits if someone questioned whether any last-minute agenda items were truly “unforseen.”

Campbell and Petersen noted a few bills restricting public access did get through.

SB12, sponsored by Vernal Republican Sen. Kevin Van Tassell, makes Utah Transit Authority trip data a protected record. Van Tassell said it would bar people from using GRAMA to find out if their spouse is cheating on them by using UTA to visit a paramour.

Another bill was HB408, Rep. Paul Ray’s bill requiring people who want copies of mug shots to sign a statement swearing that they won’t post the pictures on websites that charge people to remove them. The Clearfield Republican said it was necessary to protect people who had been arrested and either not charged or had the case dismissed from being haunted by the mug shot.

Campbell said those bills highlight the need for a committee with expertise in open-government issues to review bills and make recommendations.

 

It’s now the law: No mug shots for those who charge to take them down

Yesterday, Gov. Gary Herbert signed the bill that forces people who want copies of mugshots to swear that they won’t post it on websites that charge to remove them.

HB408, sponsored by Clearfield Republican Rep. Paul Ray, subjects violators to the same penalties as those who lie to police officers. Ray said he sponsored the bill at the request of Salt Lake County Sheriff Jim Winder, who  was concerned about the proliferation of mug shot magazines and websites.

Ray and Winder said the sites were not fair to people who had been arrested, not charged and were trying to get on with their lives, only to find their booking photos available through a Google search.

“The purpose of these mug shots is to identify criminals,” Winder told the House Law Enforcement and Criminal Justice Committee during a hearing on the bill, “not bully or harass citizens.”

Some of the sites offer to take down a mug shot, but only after a fee is paid. While slcmugshots.com states it will take down mug shots for free if proof that a charge has been dismissed or the person was acquitted was provided, it also runs ads for a firm that charges for “immediate removal” of mug shots from the Internet.

Winder’s office no longer posts mug shots online, while the Utah County Sheriff’s Office only posts tiny thumbnail shots that cannot be enlarged easily. The Weber County Sheriff’s Office still provides online access to mug shots

But open-government advocates warn that the bill sets a dangerous precedent of government demanding to know what someone intends to do with public information.

“The whole purpose of GRAMA is if a record is public, you should have it and not have to explain why,” Hunt said.

Federal court rules that there’s no freedom from embarrassment on the Internet

Frequently, I get requests from people who want information deleted from the Utah’s Right to Know website.

Sometimes, it’s someone who has had their criminal record formally expunged and wants it taken down before we do our next update. And, once I see proof that the expungement actually took place, I am more than happy to remove the data.

But there are others who want their convictions and divorces removed for no other reason than they don’t want that fact showing up when someone does a Google search on their names.

One gentleman even went as far as claiming that Utah’s Right to Know cost him a job opportunity because the prospective employer found his burglary conviction online.

My response to him, as to all others who make these requests, is that unless the record is formally expunged, it will remain on our site.

It’s that notion of avoiding embarrassment that drove Rep. Paul Ray’s HB408, which requires people seeking jailhouse mug shots to swear that they will not publish the pictures in publications that charge to remove them. As of Friday, Ray’s bill was still waiting for Gov. Gary Herbert’s signature.

While the European Union is exploring the possibility of establishing a “right to be forgotten”, a federal appeals court has ruled that American Internet search engines have no duty to remove information someone may deem unflattering.

In Neiman v. VersusLaw Inc., the 7th Circuit Court of Appeals recently ruled against a man who insisted that Google, Yahoo! and Microsoft had to stop linking to a lawsuit he  filed against a previous employer. The man argued that the links were scaring off future employers who might consider him too litigious to hire.

“The First Amendment privileges the publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed,” the court ruled.

The case validates the advice given by many journalists to their children: Don’t do anything you wouldn’t want to see on the front page of the newspaper. Or in a Google search for that matter.

H/T to Frank LoMonte at the Student Press Law Center for pointing out this decision.

Utah legislator requiring mug-shot requesters to swear they won’t charge to remove pictures from websites

Rep. Paul Ray doesn’t see HB408 as restricting access to jail booking photos, but how people use the mug shots.
But others see it as a dangerous foray into restricting public records.

Ray, R-Clearfield, is sponsoring legislation that would require people requesting mug shots to sign an affidavit swearing they won’t require people to pay to have a mug shot removed from a website or magazine. Ray claimed some of the sites charge between $500-$1,000 to remove the pictures, a move he labeled a “scam.”

“You have somebody, for instance a  husband and wife arrested on a domestic [violence charge]. They book them in, not charge them and end up releasing them,” Ray said. “They’re trying to fix their marriage, and now their mug shots are all over these magazines, and they’re charging them to get it off there.”

One site, slcmugshots.com, runs advertisements for a firm that offers instant removal for $99, a discount from the regular $159 rate. The site also has a disclaimer that photos are not proof of guilt.

Ray said Salt Lake County Sheriff Jim Winder requested the bill. Winder’s office has stopped posting mug shots online, requiring those who want them to instead file requests under Utah’s Government Records Access and Management Act.
“The purpose of these mug shots is to identify criminals,” Winder told the House Law Enforcement and Criminal Justice Committee Thursday, “not bully or harass citizens.” He said journalists can still file GRAMA requests for mug shots.

The Utah County Sheriff’s Office only posts low-resolution thumbnail pictures of those booked at the Utah County Jail.

Under Ray’s bill, those who charge to have the pictures removed after signing the affidavit would be charged with lying to a police officer, a class B misdemeanor punishable by up to six months in jail. Ray claims the affidavit would be required for those making bulk requests, but the bill indicates it would be required of those seeking a single shot.

While nobody spoke against the bill at the committee, which voted unanimously to send it to the full House for consideration, open-government advocates see it as setting a dangerous precedent.

Salt Lake media attorney Jeffrey Hunt said it could embolden government agencies to start asking people why they are seeking public records, which could chill records requests.

“The whole purpose of GRAMA is if a record is public, you should have it and not have to explain why,” Hunt said.
Jim Fisher, an associate professor of communication at the University of Utah, said the bill appears to be an attempt to legislate journalistic ethics.

“It’s one of those laws that’s based on morality and not legality,” Fisher said.

Responsible journalists, Fisher said, typically do not run the names of people who have merely been arrested but not charged with a crime. But that is a question of ethics, not law.

Hunt said a better approach to the problem would be to enforce laws relating to extortion or fraud.

The Utah’s Right website does not publish the names of those whose criminal cases have been dismissed or have entered into plea-in-abeyance agreements. The site’s staff will remove the names of those whose criminal records have been expunged by the courts.