Ugly Mug

Fifteen years ago, there was a delayed, but nonetheless welcome ground shift in perception of what a public record is. By the turn of the century, just about everyone was already doing most of their reports and spreadsheets in electronic format, and email was well on its way to being the default mode of interoffice communication.

Still, it took some pushing and prodding to get folks to agree that, for purposes of public records, what matters is the content of the report, spreadsheet or message, not whether it was created in Word or stored in Google’s cloud. Having conducted numerous training sessions with local and state government employees, we know that this is the accepted norm now.

Except when it isn’t.

Last week the Virginia State Police told the Daily Press in Newport News that it could not have a recently indicted suspect’s mug shot because the photo was made digitally, had not been printed out and was being stored in an electronic database. The spokeswoman contended that the photo’s release would violate protections against distributing criminal histories.

Mug shots are specifically noted in FOIA as records that must be released, and the FOIA Council’s director, Maria Everett, said the notion of not releasing something because it’s in a database “flies in the face of open records law.”

In explaining in an editorial that it routinely receives mug shots of recent arrests, the Daily Press hoped it was just a coincidence that in this case, the suspect is the former police chief of the Town of Windsor.

UPDATE: A spokeswoman from the State Police cited the Code provision that prohibits release of criminal histories. In our opinion, that does not really settle the matter. Even if it was established that mug shots were criminal history records, the actions in the case still raise questions about whether this particular photo was treated in the same way that all other photos of criminal defendants are. And, if so, is this to be the future of all mug shots?