County's New Mugshot Policy May Not Withstand Court Test

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Yesterday, the Harris County Sheriff's Office announced that it will no longer let anyone see the mugshots that are taken just after someone has been arrested. The sheriff's office argues that it takes too much time and sucks up valuable man-hours to e-mail the photos to the media and that doing so could jeopardize active investigations.

Plus, the sheriff's office says, it has the law on its side, as the Texas Attorney General's Office has ruled that law enforcement agencies can withhold the often telling photographs.

Hair Balls checked the law, and the sheriff's office got it right. The AG does allow them to sit on mugshots until the alleged criminals has been convicted.

But not everyone thinks this is the correct reading of the law.

Joe Larsen, a Houston media attorney who serves on the board of directors of the Freedom of Information Foundation of Texas, tells Hair Balls there is reason to think the AG's opinion is flawed. He believes mugshots could very easily fall under the basic information law enforcement is required to publicly disclose, which includes the arrestee's name, aliases, race, sex, age, address, occupation and physical condition.

"If you look at the AG's rulings," Larsen says, "it includes [releasing] information regarding the 'physical condition' of the arrestee at the time of the arrest. It's black and white. That's what it says. And I would submit that there is no better evidence of the 'physical condition' of the arrested person than the mugshot. If the guy's got a black eye, it's going to show up on the mugshot. If he was whacked on the head with a billy club, that would show up in a mugshot. If he was in a knife fight, you'd probably see that in a mugshot. It's the best evidence of the 'physical condition' of the arrested person."

Even if the sheriff's office were on unshakeable legal ground, their new policy could potentially create more time-consuming work for the department than it was expending emailing the mugshots to begin with.

Larsen says that the AG's opinion is not a blanket ruling and does not apply to every single request for a mugshot.

"The AG has basically given cover on mugshots," he says, "but that doesn't mean [agencies] can just ignore requests for them. They still have to request an AG ruling if someone asks for a mugshot. They can't just say, 'Well, the AG has generally held that mugshots can be withheld,' because the AG never issued a prior determination. I don't know what kind of time [the Harris County Sheriff's Office] is saving, but now they'll have to write the AG on every request. And to that extent, they're talking about additional time, which seems to run against their argument."

Larsen says a practice of not releasing mugshots, and instead writing to the AG every time someone requests one, will also eat up a lot of additional time for folks at the AG's office.

"I've talked to the open records division of the AG's office about this over the years," says Larsen, "and they will not change their minds. Nobody has challenged the AG. Someone is going to have to sue them to make it different, because the AG continues to rule that you can withhold mugshots under the law enforcement exception."

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