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GUEST OPINION: Booking photos — public record or intrusion?

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By GENE POLICINSKI
First Amendment Center
The mug shots of recently arrested federal prisoners are private and in most cases not available to the public, a federal appeals panel decided Feb. 22, turning back a request from the Tulsa (Okla.) World newspaper.

The three-judge panel of the 10th U.S. Circuit Court of Appeals, upholding a district court decision, rejected a number of arguments by the newspaper about the benefits of public access to U.S. Marshals Service booking photos.

“We agree with the district court that ‘disclosure of federal booking photographs is not likely to contribute significantly to public understanding of federal law enforcement operations or activities’,” the panel wrote in its opinion.

The judges also quoted several earlier court decisions denying access to mug shots or written rap sheets showing prior arrests or convictions.

The 15-page opinion noted one earlier ruling that said mug shots often are taken with poor lighting or catch those arrested in “unpleasant circumstances,” resulting in “unflattering facial expressions.”

In a 1999 ruling, Times Picayune v. U.S. Department of Justice, a federal district court noted that mug shots generally include the familiar front-and-side format, or “arguably the most humiliating (pose) of all, a sign under the accused face with a unique Marshals Service criminal identification number.” Such images may have a stigmatizing effect, the court said, lasting well beyond any criminal proceedings.

OK, a really bad mug shot — and even movie stars have had them — may well linger in the public’s mind.
But in balancing “public interest” and “privacy concerns,” the appellate court and those earlier decisions fail to acknowledge one major consideration that blends both public and private concerns: mistrust of government and its motives.

It’s easy to overlook the skepticism the nation’s Founders had toward the power of government in these instances to take away one’s liberty on a short- or long-term basis.
The 10th Circuit and the Tulsa World tussled over the value of making mug shots public — disclosing any physical abuse by authorities during an arrest, tracking racial trends in arrests, and critiquing the performance of a police agency.

The newspaper lost.

But what is unassailable — and absent from this dispute — is the basic benefit both to society and the individual of providing proof that a person is being held by the government.

Access to a booking photo adds greatly to other information, particularly in an age when a simple misspelling or other error in entering information can plunge someone into digital limbo.

And like the Founders, who knew about secret trials and Star Chamber conspiracies, let’s not assume that government, any government, is always a benevolent captor.

In too many places around the world, people simply “disappear” after arrests.

In our own nation, tactics such as rendition of terrorism suspects to other countries and secret court dockets have evolved in the post-9/11 era.

The government’s power to take away a person’s liberty should always be accompanied by the highest possible level of accountability and transparency.

Public access to routine booking photos would seem an efficient, effective way toward that goal.

Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran journalist whose career has included work in newspapers, radio, television and online.