To: Second Chance Alliance Steering Committee

MEMORANDUM

To: Second Chance Alliance Steering Committee

From: Daniel Bowes, Staff Attorney, NC Justice Center

Date: April 4, 2012

Re: Stopping the Slammer: Lobbying, Litigation, and Organizing Strategies

The Slammer is a mug shot tabloidthat has been published since 2007.Usually sold at convenient store counters for $1, the Slammer publishes four editions across North Carolina and nine editions across six other states. The Slammer’s publication and disreputable captioning of mug shots is exploitative.Under the pretense of preventing crime, the Slammer increases the social stigma suffered by individuals entangled in the criminal justice system.Unfortunately, the tabloid’s popularity is growing fast.[1]In order to minimize the harm done by this publication, certain strategies should be considered. The following is an outline and discussion of strategies for limiting the Slammer’s access to mug shots and otherwise preventing its publication.

Strategy 1: Limit availability of mug shots

It is often taken for granted that mug shots are public documents and therefore freely accessible to anyone.There is no absolute common law right to access public documents; instead, any such rights are set forth and limited by statute.See News and Observer Pub. Co. v. State, 312 N.C. 276, 322 S.E.2d 133 (N.C.1984).A close reading of Chapter 132 of the North Carolina General Statutes reveals that the issue is, at the very least, ambiguous.Mug shots are not explicitly treated under the Public Documents law.Instead, “photographs” are included within the definition of both public records and “records of criminal investigations,” which “are not public records.”N.C.G.S. 132-1(1); N.C.G.S. 132-1.4.Materials, including photographs, “made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions,” are “public documents” and are to be made available to the public for “free or minimal cost.” N.C.G.S. 132-1(a), (b).However, “records of criminal investigation,” though compiled by public law enforcement officials and ostensibly within the broad reach of “public documents,” are “not public documents as defined by GS 132-1.”N.C.G.S. 132-1.4.“Records of criminal investigation” are defined as “all records or any information that pertains to a person,” including“information derived from…photographs,” which is “compiled by public law enforcement agencies for the purpose of attempting to prevent or solve violations of the law.”N.C.G.S. § 132-1.4(b)(1).This exception is rooted, according to the North Carolina Supreme Court, in “recognition of the rights of privacy of individuals mentioned or accused of wrongdoing.”News and Observer Pub.Co. v. State, 312 NC 276, 322 S.E.2d 133 (NC 1984).Accordingly, if mug shots are “for the purpose of attempting to prevent or solve violations of law” then mug shots are not public documents.Neither North Carolina courts nor the NC Attorney General have directly addressed this matter.However, in analyzing a public documents law very similar to North Carolina’s, the Attorney General of California, in a 2003 opinion, wrote:

We have no hesitation in finding that mug shots fall within the “records of investigations” exemption of section 6254, subdivision (f).A mug shot is used by the police not only to identify the person arrested, but to determine if he or she is wanted on any other charge.Mug shots from earlier arrests may be used during subsequent investigations to identify individuals suspected of committing criminal offenses.

In that opinion, the California Attorney General found that a sheriff possesses the discretion not to furnish copies of arrested persons in response to a request from a member of the general public.

Reinforcing the argument that mug shots are “records of criminal investigations”are the specificexceptionsto the “records of criminal investigations” categorycontained in NCGS 132-1.4(c) and the absence there of materials that could be construed as inclusive of mug shots:

“Notwithstanding the provisions of this section, and unless otherwise prohibited by law, the following information shall be public records within the meaning of G.S. 132-1

(1)The time, date, location, and nature of a violation or apparent violation of the law reported to a public law enforcement agency.

(2)The name, sex, age, address, employment, and alleged violation of law of a person arrested, charged, or indicted.

(3)The circumstances surrounding an arrest, including the time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit, and a description of any items seized in connection with the arrest.

(4)The contents of “911” and other emergency telephone calls received by or on behalf of public law enforcement agencies, except for such contents that reveal the name, address, telephone number, or other information that may identify the caller, victim, or witness.

(5)The contents of communications between or among employees of public law enforcement agencies that are broadcast over the public airways.

(6)The name, sex, age, and address of the complaining witness.

Due to its specificity and breadth and in reference to the canon of expressiouniusestexclusioaltierius (“the express mention of one thing excludes all others”), this list is clearly exhaustive rather than illustrative. Accordingly, the absence of anything resembling a mug shot on the list is meaningful.

While a public document must be provided upon request to a member of the public for free or at minimal cost, a public law enforcement agency may deny access to records of criminal investigation.If a mug shot is a “record of criminal investigation” then it “may be released by order of a court of competent jurisdiction.” NCGS 132-1.4(a).No standard of review is provided in the statute.However, the North Carolina Supreme Court’s holding in News and Observer Pub. Co. v. State, 312 NC 276, 322 S.E.2d 133 (NC 1984), provides firm guidance.There the supreme court interpreted nearly identical statutory text (“may be made available to the public only upon an order of a court of competent jurisdiction”) providing for procedures for gaining access to SBI criminal investigative records which were, as provided for in the statute and interpreted by the supreme court, not public documents.[2] (Note-that part of the statute has since been deleted as far as I can tell).In News and Observer, the NC Supreme Court held that because the records in dispute were not public documents, access to those records may be permitted only when those parties are otherwise entitled by statute to access” and “such access is available only under our statutory procedures for discovery in civil or criminal cases.”The court then, applying rules of civil procedure regarding discovery, wrote:

It is clear that the News and Observer did not seek the SBI records on the ground that they were reasonably calculated to lead to the discovery of admissible evidence to be used in the trial of any pending action; instead it sought access to the SBI records only due to its desire to know and publish the contents…the News and Observer had no right to discovery under any of those procedures.

If the Public Documents Law, in fact, limits access to mug shots as “records of criminal investigations” there is an opportunity to severely curb use of mug shots in exploitative forums like the Slammer. Custodians of these public documents have the discretion to limit access to the mug shots. It should not be our goal to completely preclude public access to mug shots; instead, we must identify and promote a manner of access that strikes a balance between competing social and safety interests. Utilizing lessons learned from the North Carolina Administrative Office of the Court’s effort to limit the availability of court records to data miners, the best strategy would seem to be not to completely limit access to mug shots, but to install procedures that make the aggregation of large numbers of mug shots prohibitively expensive.Prohibiting aggregation, as opposed to individual access, would best target exploitative forums while addressing free speech, law enforcement, and community safety concerns.One mechanism which may provide for such a distinction is a fee of $5 for access to an individual mug shot.Distribution of mug shots for community education and safety purposes would remain viable; the fee would only prohibit the weekly aggregation of hundreds of mug shots for purposes of spectacle. Another option is to limit the number of mug shots that may be provided per request.

The next question is how best to pursue acceptance of this interpretation of the law by custodians of mug shot. Declaratory relief is not an option based on the holding of the North Carolina Court of Appeals in McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C.App. 459, 596 S.E.2d 431, (NC App 2004).[3]Instead, procuring a legal opinion from the Attorney General in order to guide law enforcement agencies across the state may be our best option.Either after such an opinion has been promulgated or as it is being composed, we may go to local law enforcement, explain that they have the discretion to limit access to mug shots, and request that they do so in a manner that distinguishes between use of the mug shots for community safety purposes and use of the mug shots for commercial and entertainment purposes.

While a legal strategy seeking to have mug shots exempted from disclosure may seem novel, several jurisdictions already treat mug shots as exempt from disclosure, including Kansas, Louisiana, and South Dakota.Other states provide discretion; for example, California.Texas and Tennessee do not provide mug shots if part of an active investigation.Similarly, the federal government has on several occasions fought against releasing mug shots on invasion of privacy grounds. In 2011, the 11th Circuit Court of Appeals held that the US Marshals Service is allowed to deny access to mug shots under exemption 7(c) “unwarranted invasion of personal privacy” to FOIA.Specifically, the court adopted the district court’s opinion, saying “a booking photograph is a unique and powerful type of photograph that raises personal privacy interest distinct from normal photographs…it captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties.”The court further explained that there was little public interest in the mug shots beyond “satisfying voyeuristic curiosities.”

Strategy 2: Limit advertisers

This is a key opportunity for the Second Chance Alliance membership to take action.Current advertisers of the Slammer run the gamut, including law firms, bail bondsmen, restaurants, payday lenders, Sears, credit card relief services, MADD, Dish Network, child care services, and security service providers.A letter from the Second Chance Alliance and its individual members to those businesses advertising in the Slammer will likely make a few reconsider their support for the Slammer.We may also consider threatening boycotts of their establishments.

Strategy 3: Limit vendors

Similar to above, communications from members of the Second Chance Alliance to convenience stores providing counter space for the Slammer may discourage them from doing so.

Strategy 4: Litigate on behalf of a featured individual

The Slammer’s publication and mean-spirited captioning of mug shots potentially gives rise to two legal claims: invasion of privacy and intentional infliction of emotional distress.

1. Invasion of Privacy by Misappropriation of Image

Mug shots are in the public domain and thus do not have copyright protections.This has created the popular belief that members of the general public may use these documents carte blanche.However, the use of these mug shots for commercial purposes is an invasion of privacy under North Carolina’s common law.As noted by the NC Court of Appeals in 1996, the Supreme Court of North Carolina has held that right to privacy exists in North Carolina and is violated where plaintiff’s photographic likeness is used for a defendant’s advantage as part of an advertisement or commercial enterprise.Miller v. Brooks, 472 S.E.2d 350 (N.C. Ct App. 1996) (citing Renwick v. News and Observe Publishing, 312 S.E.2d 405 (N.C. 1984).An individual has filed ainvasion of private claim against a Slammer-type publication in Nebraska.[4]

1. Intentional Infliction of Emotional Distress

A plaintiff who asserts a claim for intentional infliction of emotional distress must prove that the defendant engaged in "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress to another." Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). The second element may also be proven by a showing that the defendant acted with "reckless indifference to the likelihood" that his or her acts "will cause severe emotional distress." Id. To prove the third element, a plaintiff must prove that he has suffered a "severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so."

More research should be done on these and other potential causes of action.

Nothing contained in this communication should be considered legal advice. Instead, this communication’s contents are meant to initiate discussion of potential strategies to curb distribution of mugshots in the Slammer and similarly exploitative publications. To discuss any or all of these strategies, please feel free to reach out to me at or (919) 861-2061.

Daniel Bowes

Staff Attorney

NC Justice Center

(919) 861-2061

ncsecondchance.org

[1]Jonsson, Patrik, “A Crime Paper Flourishes by Printing Mug Shots,” Christian Science Monitor, January 6, 2009,

Elliott, Debbie, “The Newest Magazine Fad: The Mug Shot Tabloid,” NPR, November 23, 2011,

[2] “All records and evidence-collected and compiled by the Director of the Bureau and his assistants shall not be considered public records within the meaning of G.S. 132-1, and following, of the General Statutes of North Carolina and may be made available to the public only upon an order of a court of competent jurisdiction.”

[3]“The Public Records Act permits public access to all public records in an agency's possession ‘unless either the agency or the record is specifically exempted from the statute's mandate.’ ” Gannett Pacific Corp. v. N.C. State Bureau of Investigation, 164 N.C.App. 154, ----, 595 S.E.2d 162, 164 (2004) (citing Times-News Publishing Co. v. State of North Carolina, 124 N.C.App. 175, 177, 476 S.E.2d 450, 452 (1996)). Further, the Public Records Act does not appear to allow a government entity to bring a declaratory judgment action; only the person making the public records request is entitled to initiate judicial action to seek enforcement of its request. See N.C.G.S. § 132-9(a) (2003) ( “[a]ny person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying”). We therefore hold, based on the Public Records Act and the policy consideration for disclosure under the act which are very similar to those noted by the Court in Filarsky, that the use of a declaratory judgment action in the instant case was improper.”

[4]Krull v. Cuffed Paper, LLC, District Court of Lancaster County, Nebraska, 2/25/2010,