Here is another example of an open records issue to which Kentucky has already responded. This one involves mugshots and restrictions on their use.

In 1981, the Kentucky attorney general recognized that "[i]t is contrary to the principles of personal liberty recognized in this nation for persons to be secretly held in jail." Not long after, he extended that reasoning to photographs of prisoners in jails.

In 1982, the AG stated that "[a] person's name and his photograph are both means of identification, the photograph being more distinctive and sure . . . [and] the personal privacy exemption does not apply to the photographs of a person who is arrested, booked and photographed."

The public's right of access to "mugshots" was not often challenged in subsequent years.

But in 2012, the AG was confronted by a new phenomenon: the use of mugshots for what his office found to be a commercial purpose. A representative of an online company, BustedMugshots.com, challenged the Hart County Jail's imposition of commercial copying fees for reproduction of mugshots of persons confined in the jail.

The representative of "Mugshots" maintained he intended to use the records for "insurance underwriting; news media; public search engines; research and statistics analysis; [and] marketing." The jail maintained that he intended to "post the records on BustedMugshots.com for the purpose of obtaining payment for removing the records from persons whose mugshots appear on the website." We affirmed the commercial reproduction copying fee imposed, "Mugshots" appealed, and the case settled.

The posting of mugshots online to extract (some have characterized it as "extortion") money from the person who appears in the mugshot to have it removed from the internet prompted Kentucky's lawmakers to enact a new section of the open records law in 2016.

KRS 61.8746 prohibits commercial use of booking photographs or official inmate photographs if:

(a) The photograph will be placed in a publication or posted on a Web site; and

(b) Removal of the photograph from the publication or Web site requires the

payment of a fee or other consideration.

The law creates a right of action for persons who ask that their mugshots be removed, if their mugshots are not removed, and authorizes substantial damages for violation.

So in Kentucky, mugshots remain accessible under the open records law, but the commercial use described in KRS 61.8746 is prohibited. Jails, correctional facilities and law enforcement agencies must release them upon request. But a person who is wronged under the 2016 amendment to the open records law may sue the offender and obtain damages.

This opinion from Syracuse.com criticizes a newly adopted law in New York, passed as part of the state budget and signed by Governor Andrew Cuomo, permitting law enforcement to decide whether to release mugshots. Discretion is placed in the agency to decide whether disclosure will benefit a law enforcement purpose. The law apparently makes no reference to the public purpose advanced by disclosure of mugshots and only rarely abused by commercial users.

Note: We did not intentionally post a live link to Mugshots.