The AG opines… so what? Part 2

The last post explained why Virginia’s AGs issue opinions, why AG opinions matter but don’t control agencies, and what effect AG opinions have in court. This post examines the recent opinion concerning mug shots and considers what can be done if an AG opinion is wrong or incomplete.

The recent mug shots opinion

On February 5, 2015, Attorney General Mark Herring opined to Chesapeake Sheriff Jim O’Sullivan about whether mug shots (or, as they’re known more formally, adult arrestee photographs) are subject to disclosure under FOIA. That opinion didn’t come about in a vacuum – the Daily Press’s effort to obtain a mug shot of a former police chief last year led to administrative run-around, months of delay, and much publicity on the subject. (See their original article on the subject and their recent coverage of the AG opinion.)

To condense background in a September post on the issue: Police used a machine that fingerprinted and photographed the arrestees and automatically uploaded the information to the state’s central criminal records database, the Central Criminal Records Exchange (CCRE), where the State Police claimed that the photographs were not records in the possession of State Police and could not be distributed without violating state law governing criminal histories.

FOIA specifically provides that mug shots are public. See Va. Code § 2.2-3706(A)(1)(b) (listing “Adult arrestee photographs” among the categories of “Records required to be released”). But this matter has troubling aspects that go well beyond FOIA’s mug shot release mandate proving ineffective, including:  differing treatment of the same record based on the choice to store it in paper or electronic form; technology reducing public access; databases irreversibly absorbing public records and making them confidential (contrary to Va. Code § 2.2-3704(G), which requires release of non-exempt data); and the obvious potential for abuse by telling law enforcement how they can store a record to avoid releasing it.

The AG’s opinion reinforces, rather than resolves, those problems. The opinion acknowledges (on p.3) FOIA’s “clear and unmistakable legislative intent that mug shots must be released to the public upon proper request.” It notes (on pp. 3 & 4) that the FOIA disclosure mandate was enacted more recently than state laws protecting the confidentiality of criminal justice information (CJI). See 2013 Va. Acts ch. 695. It acknowledges (on pp. 3 & 4) that mug shots fall within the CJI laws’ provision allowing release of “factual information concerning … the apprehension, arrest, release, or prosecution of an individual.” Va. Code § 9.1-126(C). And it admits (on p. 4) that CJI law “can be interpreted in such a way that it does not conflict with FOIA.”

But anyone who hoped that the AG would uphold the clear provisions of FOIA has been disappointed by the opinion. Instead, the AG’s ultimate conclusion (on p.4) rests on the proposition that Virginia law embraces the form of storage over the substance of the record — a conclusion that provides a roadmap for how law enforcement can use storage location to evade FOIA:

… it is my opinion that local law enforcement agencies must disclose adult arrestee photographs pursuant to a valid FOIA request if they are contained in a database maintained by the local law enforcement agency, regardless of whether the defendant is still incarcerated or has been released, unless disclosing them will jeopardize a felony investigation. However, photographs may not be drawn from the Central Criminal Records Exchange for disclosure at any time to comply with a FOIA request.

Is the AG opinion wrong, or at least incomplete?

There are three apparent problems with the mug shots opinion: (1) the opinion’s failure to apply what it admits about the FOIA mug shot disclosure mandate and the CJI laws; (2) the opinion’s failure to explain why public records suddenly lose their character as such when they are stored in the state’s central criminal records database (the CCRE); and (3) the opinion’s mistaken, or at least unexplained, assertion that Va. Code § 19.2-389 does not permit release of mug shots.

Problem 1 is pretty straightforward: after everything that the opinion acknowledges, the way seems clear to affirm the FOIA disclosure mandate and conclude that mug shots must be released regardless of where or how they’re stored. After all, if the General Assembly made clear and unmistakable provision for their release, in a more recent FOIA enactment doesn’t even conflict with the older and more general CJI laws, why isn’t that the end of the matter?

Problem 2 is a lack of explanation behind the opinion’s split conclusion. The opinion winds up concluding (see the block quote above) that “FOIA-bility” is all about where a mug shot is stored – if on paper or in a locality’s computer systems, it’s subject to release under FOIA, but once it’s stored in the state’s central criminal records database (the CCRE), it loses its public nature and can never come out again for FOIA purposes.

The apparent reason that the opinion concludes mug shots must be released when stored outside the CCRE but may not be released when stored in it is that the CCRE is subject to Chapter 23 of Title 19.2 of the Code of Virginia, which the opinion claims does not permit dissemination, while other law enforcement storage of CJI is governed by Article 3 of Chapter 1 of Title 9.1, which does permit dissemination of factual information concerning an arrest. But the opinion’s discussion of various Virginia laws never clearly states that.

And the opinion doesn’t even mention Va. Code § 2.2-3704(G), which provides that public bodies must provide access to nonexempt records contained in a database that also holds information that’s exempt from release. The opinion’s conclusion is inconsistent with that provision of FOIA, yet the opinion doesn’t even cite that provision, much less explain why it doesn’t apply to the CCRE.

Problem 3 is the opinion’s mistaken, or at least unexplained, claim that Chapter 23 of Title 19.2 does not permit dissemination of mug shots. Va. Code § 19.2-389(A)(2) specifically permits, at least for a year after arrest, dissemination of criminal history record information to “Such other individuals and agencies that require criminal history record information to implement a state or federal statute … that expressly refers to criminal conduct and contains requirements or exclusions expressly based upon such conduct…” Here, dissemination of the mug shots is required to implement a state statute, FOIA, and the section of FOIA that mandates release of mug shots, Va. Code § 2.2-3706, expressly refers to criminal conduct and contains specific information disclosure requirements and exclusions based upon and related to that criminal conduct.  Thus, § 19.2-389(A)(2) seems to permit dissemination pursuant to FOIA.

Disclosure as provided by FOIA also seems covered by § 19.2-389(A)(44), which authorizes dissemination to “Other entities as otherwise provided by law.”

Maybe there’s some reason not apparent from the text of Va. Code § 19.2-389 why (A)(2) & (44) don’t apply, but the AG’s opinion fails to give any reason, making only a bare assertion (on p.3) that “Persons seeking criminal history record information pursuant to FOIA” aren’t covered by any of the 44 authorizations for dissemination in § 19.2-389(A). That isn’t adequate for a legal conclusion that’s contrary to what “the General Assembly clearly mandated in 2013” (§ 2.2-3706’s mug shots provision) and also contrary to § 2.2-3704(G).

What are the possibilities if an AG opinion is wrong, inadequate, or undesirable?

The first option is to go back to the AG. This or a future AG could revisit a subject and reverse or distinguish a past AG opinion.  (AG Herring did just that yesterday, in fact, reversing a 2002 opinion.)  Human nature being what it is, however, it is unlikely (albeit not impossible) that the issuing AG would revise the opinion to reach the opposite conclusion. The legal tradition of stare decisis (respect for precedent) may lead an AG to avoid reversing past opinions too.

The second option is to seek change from the legislature. Although constitutional law may draw most of the attention, and although federal law is increasingly expansive, many issues are matters of statutory or common law, and those are entirely within the control of the General Assembly. For example, the General Assembly could tweak Va. Code §§ 19.2-389, 2.2-3706, or both to make clear that law enforcement cannot use storage in the CCRE to evade disclosure required by FOIA. (Here’s another item for the FOIA Council review.)

The final option is the courts.  A person whose request for mug shots has been denied due to their storage in the CCRE – here, the Daily Press at least – could sue. As discussed in Part 1, an AG opinion isn’t binding on any court, so a court is free to reach a different (better?) interpretation of the statutes involved. Lawsuits play a critical and necessary role in clarifying and reinforcing FOIA. And, if a requester intends to petition for relief under FOIA, the sooner the better – as discussed in the last post, the longer an AG opinion persists without corrective legislative action, the more a court might conclude that the legislature has acquiesced in the opinion’s conclusions.


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