Some of you are aware of a cottage industry whereby “entrepreneurs” scrape the websites of local law enforcement, put mugshots on the web, and then, for a small but tasty fee will take them down when an aggrieved individual complains. I wrote about this last year (as did Scott Greenfield, see also Reuters).
No, I don’t know how such people can live with themselves by creating misery for others just so they can turn a buck. But that is only a secondary point of this post.
As first reported by the New York Law Journal ($), a New York judge shot down the Freedom of Information request of Kyle Prall, who owns one of those extortion-like sites. In Prall v. New York City Department of Corrections, Justice Darrell Gavrin denied the request, which came to her attention when Prall sued for the information after being denied by the Department of Corrections.
The website, BustedMugshots.com (no link, no juice),publishes the names, addresses, dates of birth, arrest records and photos of inmates. The charge is $68 to have the data removed.
Given the problems with identify theft and the fact that much of the information is private, the court ruled that the Department did not act in an arbitrary and capricious manner in using the magic word ‘no.” The court wrote that the Department of Corrections:
demonstrated a particularized and specific justification for withholding the dates of birth and addresses of inmates. Respondents assert that the dates of birth and addresses of inmates are not relevant or essential to their work, as it is primarily charged with the duty of detaining inmates and preparing them for successful reentry into the community. This personal information has been reported to respondents in confidence and the information is not relevant to the ordinary work of the New York City Department of Corrections.
…
In view of the privacy interests at stake, disclosure of the records of respondents containing dates of birth and home addresses, and other personal information of inmates could easily be used to facilitate identity theft, thereby resulting in both economic and personal hardship to inmates. The dates of birth of inmates, who enjoy a lesser degree of privacy, have been protected from disclosure under FOIL. The decision of respondents to deny petitioner access to dates of birth and addresses of inmates was not arbitrary and capricious nor was it an abuse of discretion.[citations omitted for blog post]
And Prall didn’t get the pictures either, and that was based on his own conduct in trying to use the information to inflict harm. As much as I hate using block quotes from opinions
As to that branch of the petition which seeks photographs, respondents properly withheld photographs of inmates as the disclosure would constitute an unwarranted invasion of privacy resulting in personal and/or economic hardship to inmates. Specifically, respondents contend that “the department is not privy to the circumstances surrounding any trials, court appearances, and possible cooperation with enforcement” and the release of inmate photographs could expose them to harm. Furthermore, inmates will suffer economic hardship if their photographs are released because petitioner intends to post these photographs on his website and then demand a $68.00 fee to remove each photograph. Given the earning capacity of inmates, the $68.00 fee is quite steep. If the fee is not paid, an inmate’s photograph and other information will remain on the website, causing personal and economic hardship due to the notorious nature of the photograph which would be readily available to a prospective employer, creditor, potential landlord, or the like.
Respondents also claim inmate photographs are exempt from FOIL disclosure because disclosure will endanger the lives and safety of inmates and their family members. In support of their argument, respondents submitted the affidavit of E. Perez, Assistant Chief of Security for Department of Corrections. Mr. Perez states that he has more than 20 years experience and explains that the majority of violence in jails is gang-related. He opines that the release of photographs of inmates would increase gang violence targeted at inmates and their family members. Personal information such as names, addresses and photographs of gang members in jail, which is ordinarily not available to gang members outside the prisons, would be more readily available through exposure on the internet; this exposure would endanger the lives and safety of inmates. Interestingly, petitioner did not rebut the affidavit of Mr. Perez.
The only real question I have on this, why would a lawyer be a party do such a scummy project, whose only purpose is the creation of misery so that someone can profit? In this case Prall was represented by John Campbell of Tilem & Campbell. It is one thing to represent someone bad who’s been arrested, but assist him in creating misery by representing him in a civil suit? As I wrote just yesterday, you have to learn to say no to potential clients.
Update: Just days after this post, the United States Supreme Court weighed in on another case dealing with semi-public governement data: Sometimes the government will give it out and sometimes not, depending on who you are and what the data is being used for.
Why would someone take such a case?
Let me start by saying that I am not familiar with New York law. My knowledge of New York pretty much starts and ends with knowing where to get on the train if I need to go up there.
Some states have fairly broad open records laws. These laws are intended to allow the public to keep tabs on their governments: what they are voting to fund, how much they are overpaying for vehicles, whose project gets roads paved at little or no cost, or whatever. There are myriad reasons, including pure curiosity, that citizens might want to watch their government in action.
A lawyer who firmly believed in such laws, and who saw the denial of access as violative of such laws, might well take on such a case. If we allow the government to keep public records away from people we do not like, pretty soon we will have crafted an exemption to the public records laws which covers people whom we do like but who have irritated officials.
Well, one of Prall ex-lawyers told me “as a young lawyer starting out he was just looking for a client who paid the bills, as are all lawyers who are just starting out.” …At least he was being honest!
The court has no business getting involved in the usage of these records – it’s unconstitutional.
it’s unconstitutional.
Which part?
@Eric Turkewitz – The part where the court judges their business model. It’s called ‘prior restraint’. It should not have any bearing on public records and FOIL/FOIA requests.
The part where the court judges their business model. It’s called ‘prior restraint’. It should not have any bearing on public records and FOIL/FOIA requests.
So what? The gov’t has lots of info about you that it doesn’t disclose, like your Social Security number. And tons of health care data via Medicare. But you know what, if you were a researcher trying to do a statistical analysis of something, you might be able to get some of that data if privacy is protected. But that doesn’t mean the data goes to any Tom, Dick or Harry that wants to put it on the web.
You can’t just yell “it’s a constitutional issue” in order to override a statute that is geared, in part, to protect privacy. You have to actually have something to back it up.
They can’t decide on release based on what a publisher, or anyone else for that matter, might do with the material. Either they do equally to all, or they don’t.
If you need a link .. http://en.wikipedia.org/wiki/Prior_restraint
It’s not prior restraint; Moore is confused. But the point he seems to be trying to make, that the court may not be applying the laws equally because they don’t approve of how the photos will be used, does raise legitimate issues.
Ted:
How do you balance the privacy interests of people without looking at how the data is going to be used?
Good for Justice Gavrin. Float like a butterfly, sting like a bee.
@Ted – You seem to agree the point is legitimate but then say ‘its not prior restraint’. It actually is. They’re saying they may have released the data if Busted had a different business model. Whatever the model should not have been part of the discussion at all. I think Busted should appeal.
“How do you balance the privacy interests of people without looking at how the data is going to be used?”
There’s a current split between courts on this subject. Generally speaking, arrest records are public records and the public has the right to know. This is good for the community for obvious reasons (crime) but also good for the people in order to keep the govt. in check. Without checks and balances where would we be today? Oh, NSA anyone? Not a world most of us want to live in.
Jack, that’s not what prior restraint means. If a new governor is elected and appoints someone who decides to give the mugshots to Prall, nothing in the order restrains Prall from using them. A denial of a FOIA request isn’t prior restraint.
Eric, either arrest records are public or they’re not. There are certainly arguments both ways, but there isn’t an argument for giving public records to some people and not others. Imagine if each PACER request required an explanation of how the court records were going to be used, and some bureaucrat decided I couldn’t pull the public record because I would use it to object to a class action settlement instead of some nobler purpose preferred by the bureaucrat?
either arrest records are public or they’re not. There are certainly arguments both ways, but there isn’t an argument for giving public records to some people and not others.
I disagree. The police may collect, for example, the addresses of arrestees. This might not be public info to distribute to someone with a commercial purpose to exploit such as Prall, but might be available to researchers looking to analyze demographics for arrests.
Mug shots might have a purpose if the police are looking for someone and want to use an old photo, but why should a mug shot be available merely because the police arrested someone? It’s only real purpose to the police, after all, is to prejudice the jury pool or embarrass someone (hence, the reprehensible “perp walk” where the arrestee is waltzed before the cameras for not legitimate purpose). As you know, arrests and convictions are two different beasts.
…but there isn’t an argument for giving public records to some people and not others.
Interesting timing of this discussion, given that SCOTUS today ruled that driver’s records can be obtained by lawyers actively engaged in litigation, but not by lawyers trolling for class action clients. Thus, the type of gov’t records that we’ve been discussing — stuff that might be available to some but not others depending on how they use it — now appears to have SCOTUS support.
http://www.scotusblog.com/2013/06/details-maracich-v-spears/#more-165151
Given the Supreme Court’s new decision regarding DMV records, and states making determinations that some records can be made public to some people but not to others, I’ve added a new post:
SCOTUS KOs Lawyers Trying to Use DMV Data To Solicit
Let’s agree to disagree on this then. On that note, check out the lawsuit filed by Busted in Salt Lake.
http://www.sltrib.com/sltrib/blogsopenrecords/56356768-222/county-pictures-copyright-government.html.csp
You’re welcome to disagree, Jack, but it’s not a question of opinion. You’re factually incorrect. A prior restraint is a court order forbidding future speech.
@Ted – Or, making a decision based on how someone may use it in the future.
That’s a specific statutory regime that holds that driver records are NOT public as a matter of law, but has a statutory exception permitting their release, and asked SCOTUS to construe that exception. Doesn’t have any implication on a public records request.
Nor does your “police looking at mugshots” example have bearing. When police are looking at mugshots, that’s a government official looking at government records. Whether mugshots are public record is sufficient, but not necessary, to that question.
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