The 'Mugshot Racket' II: A Commercial Purpose Exemption?

When Tim Donnelly, a 26-year-old job seeker, Googled his name recently he found that the first link provided was that to a mugshot of him taken seven years ago. He got into a fight as a teenager and was arrested for criminal trespass and assault. According to Donnelly, the trespass charge was dismissed and the assault charge was downgraded to disorderly conduct. "I have since learned better," he said.

What bothered Donnelly wasn't the publication of his mugshot per se, but instead the companies working together to solicit payment for its removal. "I am all for having a completely open government," he said, "but something needs to make this online shaming device stop." Donnelly believes he has a solution.

Since I wrote about the prevalence of mugshot websites last October, many CMLP readers weighed in with their own take on what David Kravets described in Wired as a "racket." According to Kravets's article, self-described "reputation companies" are part of an emerging industry of websites publishing mugshots and then charging those pictured to remove the photos to spare them further embarrassment.

"This is not a ‘mugshot business' or ‘mugshot industry'," wrote one reader. "This is extortion... The demand: Pay up or it stays up." Another reader noted that many of these sites defend their right to publish mugshots — which are public records in many states — by claiming they are news organizations: "They're not a ‘news organization' by any stretch of the imagination," that reader wrote. "They have zero/zilch bona fide news media credentials... [They] break every accountable, professional, bona fide news media/news-reporting 'code of ethics' out there."

Donnelly contacted me shortly after my blog post ran to comment on the mugshot phenomenon. He immediately began outlining his plan to deactivate this mugshot minefield. His solution is to legislate a public records exemption for those who would be using the records for "commercial purposes." Donnelly, a Fort Worth, Texas, resident, is currently lobbying his representatives to enact such a clause in his home state's FOI law. Presumably, such an exemption would prevent companies from exploiting public record laws while allowing news organizations to continue with their business.

At first blush, such an exemption seems conceptually absurd. Public records are considered such because the information they provide is of value to the community and necessary to maintain an informed citizenry. The information itself does not change based on the purpose and intent of the party distributing that information. The public is informed regardless and the objective of FOI law is met. There is also the issue of news media having commercial purposes, and so a commercial exemption could result in potential First Amendment conflicts. Further, if the intent of such a proposal is to distinguish journalists from mere profit-seekers such as the aforementioned reputation companies, then legislators would be marching into an ongoing battle over the definition of "journalist."

Despite these immediate concerns, however, what Donnelly proposed is already being practiced. Indiana, for example, allows its agencies and "political subdivisions" to prohibit the release of public information in electronic form, if that information is to be used for commercial purposes. Ind. Code. § 5-14-3-3. This bar to public information does not apply to the "publication of news," but as shown by one state official's explanation, the distinction can be a difficult one to make. In a dispute last year over a website's access to digital mugshot photos, Indiana's Public Access Counselor, Andrew J. Kossack, wrote the following:

...if a newspaper received the type of records sought in the request at issue here, it could publish a story about some aspect of the arrest process generally or about the particular arrestees specifically... [But] the same newspaper could be restricted from establishing a for-profit, fee-based database on its website that used the information to "sell, advertise, or solicit the purchase of merchandise, goods, or services."

So, it appears that an Indiana publication can safely publish a mugshot in its newspaper, but if that same mugshot is aggregated with others in a database for which access costs a fee, then there could be a violation. In both scenarios, the same information is being provided. Assuming it is not a free newspaper, both instances involve payment for that information. Th