A FRESH START? HOW FREEDOM OF INFORMATION CAN IMPACT THE PRIVATE INDIVIDUAL

As explained in an earlier post by attorney Tyler Moore, expungement is the process by which an individual with a criminal charge can, under specific criteria, apply to have any official government records of the charge — arrest, investigation, detention, and conviction — to be sealed. Expungement is a lengthy and arduous process in which one must invest time and money, even without the (highly recommended) aid of a qualified attorney. However, it can certainly be worth all the effort and financial investment if the end result will be that the record is indeed sealed, rendered unavailable if requested by the prying eyes of future employers, landlords, and others.

What some may not realize, however, is that expungement procedures only apply to official government records, and not to the media and other private outlets that may have chosen to publish the information prior to the record being sealed. We have all seen and read news stories about individuals who, on any given day, have been arrested for crimes they have allegedly committed. More often than not, particularly on the evening news, it seems that the image shown to represent the story as it is being told is the person’s booking photo or mug shot. Of course, few have the notoriety nor the newsworthiness to make it onto the evening news, but do you ever wonder how the media is able to access and broadcast this information to the public?

On the federal level, the Freedom of Information Act (FOIA), codified under 5 U.S.C. § 552 — which was signed into law in 1966 by President Lyndon B. Johnson and has subsequently undergone several amendments — promulgates the guidelines and procedures for disclosure of certain federal government documents. Though the FOIA does not apply to state or local governments, all states have enacted their own versions of the Act. In Utah, we have the Government Records Access and Management Act (GRAMA), found in Title 63G, Chapter 2 of the Utah Code. The GRAMA manages state records and provides guidelines as to who has access to which records.

Mug shots and other arrest information are a good example of the delicate balance between the public’s constitutional rights to access these records and the privacy interests of individual citizens. On the one hand, the public wants to know about crimes that have been committed in their communities, but mug shots and arrest information are preliminary findings, because ultimately, the person arrested for the crime may not be convicted in a court of law. Nevertheless, in Utah the law seems to err on the side of the public’s right to know. In one example, KSL TV v. San Juan County, a case in which KSL TV was denied records from the San Juan County Jail, specifically mug shots of a man and woman who had been booked into the jail for crimes against a juvenile, and about whom KSL was running a story in 2007. San Juan County had attempted to argue that the mug shots should have been kept private, and that publishing them constituted an unreasonable invasion of privacy. Seventh District Court Judge Douglas B. Thomas ruled that Utah’s GRAMA favors public access over private interests, stating: “That for the good and protection of the community the public is entitled to know those individuals who have committed crimes against minors – committed any crimes, but in this particular case especially against a minor.” Judge Thomas further added that the Utah Supreme Court has made it clear in their holdings that “a tie between the competing interests goes to releasing the record; it does not go to keeping it private.”

Although most ordinary citizens’ mug shots will not be broadcasted on the news, there are other private companies with an interest in these records. We have probably all seen the BUSTED newspaper, which publishes mug shots of individuals who have recently been booked into jail, for sale on the counters at convenience stores. In this day and age, it is no surprise that they also have a web site and a Facebook page. My curiosity got the best of me one day as I read through and looked at some of the mug shots and comments posted by Facebook users. A good portion of the comments I read were personal attacks, many on the physical appearance of the individuals — completely unfair, as mug shots are not glamour shots by any stretch of the imagination — and the crimes they yet to be convicted of. Furthermore, this is not the only private company publishing these photographs. I think this is a disturbing trend that takes the public’s right to know about (and comment on) people who are arrested to egregious levels, but for now, web sites such as these are within their rights to publish these records.

So what is one to do if information such as this is still floating around on the Internet, even after enduring the time-consuming expungement process? Some of the web sites I have seen do provide links to contact them and petition to have a mug shot (or other information) removed, but if the information was indeed a public record at the time of publishing, this is certainly not guaranteed. In the end, you may need the help of a criminal defense attorney to ensure that all bases are covered when you are looking to truly wipe your slate clean.

Sources and further reading:

http://www.justice.gov/oip/ – More information about the Freedom of Information Act (FOIA)

http://www.justice.gov/oip/court-decisions.html – Relevant FOIA-related court decisions

http://www.sunad.com/index.php?tier=1&article_id=15760 – The full article on KSL TV v. San Juan County

This post was written by Shannon Burk