Sheriffs to Cuomo: Mug-shot release is our call, not yours

DuMond

ALBANY — Several upstate county sheriffs say they have no plans to stop releasing booking photographs — commonly known as mug shots — despite a new law designed to limit their disclosure.

"I'm not changing anything," said Delaware County Sheriff Craig DuMond. "We're going to release them just as we always have. The public has the right to know what their government entities are doing."

The photographs are taken by police shortly after a person has been charged with a criminal offense. They become part of a defendant's police record and are often used in newspaper and television news stories about arrests.

Gov. Andrew Cuomo pushed for the new law, contending it was needed to address "extortionate" web site operators who post mug shots and then seek fees from people who ask that they be scrubbed from the internet. Advocates for access to government records, including the New York News Publishers Association, have said the way to tackle that practice would be through prosecutions of those who engage in shakedowns, not blocking the media from acquiring the photos.

Several sheriffs spoke to CNHI about their plans to allow access to the mug shots after reviewing an advisory opinion explaining the new law from Alex Wilson, an associate counsel for the New York State Sheriffs' Association.

Niagara County Sheriff James Voutour, Otsego Sheriff Richard Devlin and Clinton County Sheriff David Favro echoed DuMond in saying they expect to allow a similar level of access to mug shots now as they did prior to the enactment of the new law.

"I think it's pretty clear in the First Amendment that they (the press) are allowed to have that information," said Voutour. He noted that he does not release the photos with every arrest announcement, but has tried to make them available, unless the release hindered an investigation. "We're going to continue business as usual," he said.

In Plattsburgh, Favro said that, prior to new law, he generally required reporters and editors to file a Freedom of Information request for mug shots — a practice he said is expected to continue.

"We're going to evaluate every request and make sure we're on solid ground, which isn't a lot different from what we were doing before," said Favro. He said in the past he did not release mug shots if doing so at the time could have jeopardized an investigation. That concern will guide decisions going forward, the sheriff said.

Wilson explained in his memo that the new law gives police discretion over the photographs, and allows them to be made available for law enforcement purposes.

"There is nothing contained in this new provision which designates booking photographs as per se confidential or expressly prohibits their release by governmental agencies," Wilson explained in the memo.

He added: "To the contrary, the language even contemplates the discretionary release of such photographs for a 'specific law enforcement purpose,' an incredibly broad term that is left undefined by the law."

Wilson advised county sheriffs to be consistent in applying the policies they adopt, noting that the law also entitles police agencies to deny Freedom of Information Law requests for the images "if they so choose."

"You should either release, or provide access to all booking photographs, or to none," he advised.

The Division of State Police, an agency under Cuomo's control, announced last week that it has stopped releasing its mug shots to the news media as a result of the new law, but will do so if the release of the photo could assist troopers working on investigations.

DuMond said he is convinced the new law was motivated by a desire to limit public information about people facing criminal charges.

"It's this left-wing hug-a-thug mentality" that is consistent with other new laws restricting the use of cash bail, he said.

Wilson's analysis noted that due to New York's Personal Privacy Protection Law, the new statute effectively bans State Police and other state-level law enforcement agencies from releasing the photographs, unless they have investigative reasons for doing so. He noted those agencies, unlike county sheriffs and municipal police forces, are covered by the privacy law.

The decision by a growing group of sheriffs to continue to allow access to the mugshots is not the first time upstate law enforcement executives have bucked state government on a new law.

Many sheriffs have said they are not enforcing some provisions of the gun control measure known as the New York SAFE (Secure Ammunition and Firearms Enforcement) Act, contending the statute does more to inconvenience law-abiding gun owners than it does to keep in check criminals who acquire firearms unlawfully. That law, enacted in 2013, was also advanced by Cuomo.

Cuomo declared he was the nation's first governor to push through stringent gun control measures after a schoolhouse shooting rampage in Connecticut in late 2012.

Joe Mahoney covers the New York Statehouse for CNHI's newspapers and websites. Reach him at jmahoney@cnhi.com