The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5593

November 14, 1979

FREEDOM OF INFORMATION ACT:

Release of photographs of persons suspected or convicted of committing a criminal act.

The list of exemptions in section 13 of the Freedom of Information Act does not make these exemptions confidential but only authorizes a public body to refuse to disclose exempt material.

File photographs routinely taken of criminal suspects by law enforcement agencies are public records as defined by the Freedom of Information Act.

To the extent that the release of a photograph of a person would constitute a clearly unwarranted invasion of personal privacy, a public body may refuse to permit a person to inspect or make copies of the photograph.

A recipient of a grant pursuant to the Federal Omnibus Crime Control and Safe Streets Act is not prohibited from releasing photographs of persons suspected or convicted of criminal acts.

Where a person is arrested and is released without charge or is found not guilty, police identifying records must be delivered to the individual.

The photograph of a convicted individual contained in the arrest file must, on request, be disclosed.

The Freedom of Information Act does not provide for immunity from civil actions brought by individuals alleging release of documents that constitute a clearly unwarranted invasion of personal privacy.

Honorable Robert A. Welborn

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the following questions:

'1) Does the Michigan Freedom of Information Act or any other statute prohibit or restrict in any way the release for publication of photographs of any persons suspected or convicted of criminal acts?

'2) Are the file photographs routinely taken of criminal suspects by public law enforcement agencies considered to be 'public documents' and therefore, available to the public when it would neither interfere with a criminal investigation nor pose a threat to the safety of law enforcement personnel?'

The Freedom of Information Act, 1976 PA 442, Sec. 2(C), MCLA 15.232(c); MSA 4.1801(2)(c), defines the term 'public record' to mean:

'. . . a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. This act separates public records into 2 classes: (i) those which are exempt from disclosure under section 13, and (ii) all others, which shall be subject to disclosure under this act.'

The Freedom of Information Act, supra, Sec. 2, defines the term 'writing' to mean:

'. . . handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content.' [Emphasis added]

Thus, file photographs routinely taken of criminal suspects by law enforcement agencies are public records as defined by the Freedom of Information Act, supra.

In response to your first question, it should be recognized that the Freedom of Information Act, 1976 PA 442, Sec. 13, MCLA 15.243; MSA 4.1801(13), sets forth categories of information contained in public documents which may be exempted from disclosure by a public body under specific circumstances. However, these limited exceptions to the general rule requiring release of all public documents may not be construed as a prohibition or restriction on a public body's ability to disseminate its public records to the public. In other words, section 13 of the Freedom of Information Act, supra, does not render confidential the types of information listed in these discretionary exemptions, but only authorizes a public body to decline disclosure of exempt material.

The Omnibus Crime Control and Safe Streets Act, 82 Stat 197 (1968) as added by 87 Stat 215 (1973); 43 USC 3771, does prohibit any recipient of assistance under its provisions from revealing in an unauthorized manner any research or statistical information furnished under its provisions. It further provides that criminal history information collected, stored, or disseminated through support under its provisions shall only be used for law enforcement, criminal justice and other lawful purposes.

However, the regulations promulgated pursuant to this Act clearly indicate that police agencies are in no way prohibited from releasing photographs of persons suspected or convicted of criminal acts. With respect to research or statistical information provided through this Federal program, 28 CFR 22.2(c) defines a research or statistical project to not include:

'. . . 'intelligence' or other information-gathering activities in which information pertaining to specific individuals is obtained for purposes directly related to enforcement of the criminal laws.'

With respect to state and local criminal history record information systems supported by this Federal program, 28 CFR 20.20(b) states, in part:

'The regulations in this subpart shall not apply to criminal history record information contained in: (1) Posters, announcements, or lists for identifying or apprehending fugitives or wanted persons; (2) original records of entry such as police blotters maintained by criminal justice agencies, compiled chronologically and required by law or long standing custom to be made public, if such records are organized on a chronological basis; . . ..'

In addition, 28 CFR 20.20(c) states, in part:

'Nothing in these regulations prevents a criminal justice agency from disclosing to the public criminal history record information related to the offense for which an individual is currently within the criminal justice system. Nor is a criminal justice agency prohibited from confirming prior criminal history record information to members of the news media or any other person, upon specific inquiry as to whether a named individual was arrested, detained, indicted, or whether an information or other formal charge was filed, on a specified date, if the arrest record information or criminal record information disclosed is based on data excluded by paragraph (b) of this section. . . .'

In response to your second question, a distinction must be drawn between photographs of persons suspected of committing criminal acts and those of persons convicted of committing criminal acts. OAG, 1979-1980, No 5500, p ___ (July 23, 1979), Question No. 33, analyzed section 13(1)(a) of the Freedom of Information Act, supra, and concluded that a law enforcement agency may refuse to release the name of a person whose arrest is being sought when in its determination such a disclosure would constitute a clearly unwarranted invasion of the individual's privacy.

Similarly, OAG No. 5500, supra, Question 33, determined that a public body may withhold records showing the final disposition of an arrest record of a person found not guilty (or where there was a decision not to prosecute) in the absence of a public interest in the record if it would result in a clearly unwarranted invasion of the arrested person's privacy. The opinion noted that the Legislature has recognized the private nature of such records in 1925 PA 289, Sec. 3, MCLA 28.243; MSA 4.433, which provides that if an individual is released without a charge made against him or her or found not guilty of the offense, police identifying records must be delivered to the individual.

OAG No. 5500, supra, Question 33, stated that where the final disposition of an arrest is a verdict of guilty or a plea of no contest, the public interest in such a result outweighs the invasion of the convicted person's privacy. Therefore, it would not be a clearly unwarranted invasion of privacy to release information relative to his conviction, such as a photograph.

As stated in response to your first question, the Freedom of Information Act, supra, does not create a prohibition against the release of file photographs taken of criminal suspects by public law enforcement officials. Correspondingly, the Act does not create an immunity from civil actions brought by individuals alleging release of such documents constituted a clearly unwarranted invasion of their privacy.

In your second question you have referred to other exemptions set forth in section 13 of the Freedom of Information Act, supra, dealing with an interference with law enforcement proceedings, section 13(1)(b)(i); and information which may endanger the life or physical safety of law enforcement personnel, section 13(1)(b)(vi). However, as stated above, to the extent that a clearly unwarranted invasion of personal privacy may occur in the release of such photographs, these documents may be exempted from disclosure under section 13(1)(a) of the Freedom of Information Act, supra. In addition, a number of other exemptions in section 13 of the Freedom of Information Act, supra, could apply to disclosure of such photographs to the extent that release might deprive the person of the right to a fair trial or impartial administrative adjudication, section 13(1)(b)(ii); or disclose the identity of an undercover agent or informer as set forth in section 13(1)(t) of the Freedom of Information Act, supra.

It is, therefore, my opinion that file photographs taken of criminal suspects by public law enforcement agencies may be exempted from disclosure to the public under the provisions of section 13 of the Freedom of Information Act, supra.

Frank J. Kelley

Attorney General