STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6389

September 24, 1986

FREEDOM OF INFORMATION ACT:

Furnishing of booking records of persons suspected of committing a crime and lodged in the county jail as clearly unwarranted invasion of privacy

The Freedom of Information Act does not require a county sheriff to furnish copies to a private security firm of "jail booking records" consisting of the names, addresses and other information of persons suspected of committing a crime who are lodged in the county jail subsequent to arrest if the sheriff makes a determination that the disclosure would constitute a clearly unwarranted invasion of privacy of the persons booked into the county jail.

Honorable John M. Engler

State Senator

State Capitol

Lansing, Michigan 48909

You have requested my opinion whether a private security firm is entitled to copies of "jail booking records" from the county jail pursuant to the Freedom of Information Act, MCL 15.231 et seq; MSA 4.1801(1) et seq ("FOIA").

The Isabella County Sheriff's Office advises that the "jail booking records" consist of a single, two-sided sheet entitled "Jail Inmate Records." This sheet provides an informational composite of each individual who is booked into the county jail subsequent to arrest and contains such identifying data as the arrested individual's name, address, date of birth, social security number, driver's license number, physical description, medical records and previous arrests. Also included are the charges at booking, the arresting agency and officer, items of property possessed at booking, military service, marital status and literacy. No disposition regarding the charges at booking are noted on the record.

The county sheriff is in charge of the county jail and its prisoners. MCL 51.75; MSA 5.868; Plummer v Twp of Edwards, 87 Mich 621, 624; 49 NW 876 (1891). The county sheriff is a "public body" subject to the requirements of FOIA, MCL 15.232(b)(iii), (iv); MSA 4.1801(2)(b)(iii), (iv), and the jail booking records kept by the county sheriff are "public records" subject to disclosure under FOIA. MCL 15.232(c), (e); MSA 4.1801(2)(c), (e). The question presented then is whether any of the exemptions set forth in FOIA apply so as to permit the county sheriff to withhold booking records from disclosure to a private security firm.

A review of FOIA reveals an exemption of relevance to the disclosure of booking records. MCL 15.243(1)(a); MSA 4.1801(13)(1)(a), provides:

OAG, 1979-1980, No 5500, p 255, 282-284 (July 23, 1979), Question 33, concluded that the release of arrest records where the disposition results in a verdict of guilty is not a clearly unwarranted invasion of an individual's privacy in that criminal records of convicted individuals are generally not confidential. Where the final disposition results in a finding of not guilty or a decision not to prosecute, on the other hand, OAG, 1979-1980, No 5500, determined that the balance between the public interest in disclosure and the individual's interest in privacy under these circumstances tipped in favor of exempting the material from disclosure. This conclusion was based on the potential for "massive and unjustified damage" that can flow from publicizing the arrest of an individual who may indeed be wholly innocent. OAG, 1979-1980, No 5500, p 283.

This distinction between the privacy of arrest records of persons found guilty and the arrest records of persons found not guilty or a decision not to prosecute was followed in OAG, 1979-1980, No 5593, p 468 (November 14, 1979), where the materials consisted of photographs taken of criminal suspects. OAG, 1979-1980, No 5593, concluded that release of a file photograph of an individual who was convicted of an offense or who pled no contest to a charge would not result in a clearly unwarranted invasion of privacy, whereas such a result may occur with respect to criminal suspects.

It is my opinion, therefore, that the county sheriff may exempt from disclosure the jail booking records of persons suspected of committing a crime if the sheriff determines disclosure would constitute a clearly unwarranted invasion of privacy.

Frank J. Kelley

Attorney General