Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Henderson County Detention Center violated the Open Records Act in denying Evansville Courier reporter Maureen Hayden's March 4, 2005, request for "a photographic print, or similar depiction of William Allen Strickland, a federal prisoner who is incarcerated in the Henderson County Jail. " For the reasons that follow, we find that because the requested record was "prepared, owned, [and] used" by the Detention Center, and is "in the possession of and retained by" the Center, it is a public record within the meaning of KRS 61.870(2) and public access to the record is governed by the Kentucky Open Records Act. Further, we find that because the record is not shielded from public inspection by any of the exceptions to the Act, including KRS 61.878(1)(a) and (k), it must be disclosed.
By letter dated March 4, Colonel Ron Herrington advised Ms. Hayden:
1. Per order of Ed Bordley, Associate General Counsel of U.S. Marshal's Service, the disclosure by local contract facilities of the mug shots is not allowable.
2. Future requests of this nature is denied unless approval of USMS [sic].
On April 14, 2005, The Evansville Courier initiated this appeal, through its attorney, Patrick A. Shoulders, questioning the Center's reliance on a federal directive from the U.S. Marshal Service and asserting that disclosure of the requested record "is governed solely by Kentucky law." In support, The Courier argued that the photograph:
is a public record, which the Detention Center, a local Kentucky government agency, keeps and maintains as part of its governmental services. The Detention Center, which merely houses federal prisoners for a fee, is not a federal agency. It is not subject to the Freedom of Information Act, 5 U.S.C. § 552 and its exceptions.
In support, The Courier cited OAG 91-56 in which the Attorney General held that the exceptions found in FOIA cannot properly be invoked by a state agency such as, in that appeal, the Cabinet for Human Resources, 1 notwithstanding the fact that the Cabinet receives funding from, and is supervised by, the federal government. Anticipating the argument that KRS 61.878(1)(a) 2 and KRS 61.878(1)(k) 3 authorize nondisclosure of the requested record, The Courier noted that in OAG 83-212 and 02-ORD-205, the Attorney General determined that "the personal privacy exception does not apply to prisoner photos," and that the federal law or regulation exception, "as interpreted, does not incorporate or provide application to exceptions under FOIA or the federal Privacy Act." Because there is no federal statute or regulation prohibiting disclosure of prisoner photographs, The Courier concluded, there "is no impediment to disclosure. "
In supplemental correspondence directed to this office following commencement of this appeal, Henderson County Detention Center Administrative Officer Cathy Davis elaborated on the Center's position. Ms. Davis furnished this office with a copy of an August 19, 2004, memorandum from Gerald M. Averbach, General Counsel, United States Marshal Service, referencing USMS Directive 1.12(1)(3)(g)(5), (6), which prohibits disclosure of mug shots. Mr. Averbach indicated that in light of
National Archives and Records Administration v. Favish, 541 U.S. 157 (2004), this directive would be amended to include districts within the Sixth Circuit, previously excluded from the directive by virtue of a Sixth Circuit ruling. 4 In addition, Ms. Davis provided this office with an August 20, 2004, letter from Richard W. Knighten, Chief Deputy U.S. Marshal for the Western District of Kentucky, advising county jailers who "house and maintain federal prisoners and inmates [that they] are no longer authorized to release booking photographs to the media." Finally, Ms. Davis transmitted a copy of a February 22, 2005, email from Ed Bordley, Associate General Counsel for the U.S. Marshal Service, to Richard A. Burton, U.S. Marshal for the Southern District of Indiana, the subject of which is the "mug shot issue."
In the latter document, Mr. Bordley explained:
[T]he USMS contracts with local government jurisdictions throughout the country through Intergovernmental Agreements (IGAs) for the secure custody, care and safekeeping of federal prisoners and detainees (hereinafter "detainees" ). See 18 U.S.C. §§ 4002, 4012(a)(3); 28 CFR § 0.111(o). While the detainees are housed in local facilities, they remain federal detainees and the USMS retains full legal custody of the detainees under federal law. See 18 U.S.C. §§ 4086; 28 CFR § 0.111(k).
The USMS position is that disclosure by local contract facilities of the mug shots, names or other information regarding USMS detainees housed in the facility is not allowable for privacy and security reasons. Non-disclosure is necessary to assure that the federal function of maintaining federal detainees securely is not impaired. 18 U.S.C. § 4042(2) provides that the Attorney General shall provide for the safekeeping of persons "charged with or convicted" of federal offenses. BOP regulation 28 CFR § 513.34(b) provides that lists of inmates shall not be disclosed. Thus, under federal law and regulations, the names and information of federal detainees held in local facilities should not be disclosed because disclosure would be inconsistent with execution of federal law.
Continuing, Mr. Bordley invoked 5 U.S.C. §§ 552(b)(7)(C) and (b)(7)(F), the federal Freedom of Information Act exceptions authorizing, respectively, nondisclosure of records compiled for law enforcement purposes to the extent that production of such records could reasonably by expected to constitute an unwarranted invasion of personal privacy 5 or to the extent that production of such records could reasonably be expected to endanger the life or physical safety of an individual. 6 Synthesizing these arguments, Mr. Bordley cited
Brady-Lunny v. Massey, 185 F. Supp. 928 (C.D. Ill. 2002) affirming denial of a state open records request for a roster of federal detainees housed at the DeWitt County Jail on the basis of 28 CFR § 513.34(b) and the cited FOIA exceptions.
Having considered these arguments, we find that the disputed photograph is a public record within the meaning of KRS 61.870(2) because it is "prepared, owned, used, in the possession of or retained by a public agency," within the meaning of KRS 61.870(1), namely, the Henderson County Detention Center, and that custody and control of the record is reposed in that agency. Decisions concerning public access to the record are therefore governed by the Kentucky Open Records Act which mandates release in the absence of a privacy interest superior to the public interest in disclosure or a specific federal statute or regulation prohibiting such disclosure.
We begin by noting that the Intergovernmental Service Agreement between the United States Marshals Service and the Henderson County Detention Center, a copy of which was furnished to this office upon request, states, at Article I, that "[t]he Local Government agrees to accept and provide for the secure custody, care and safekeeping of federal prisoners in accordance with state and local law, standards, policies, procedures, or court orders applicable to the operation of the facility." Moreover, USMS Directive 9.33(D) expressly states that "[l]ocal detention facility rules or policies regarding visitation, mail, or phone access apply to USMS prisoners and their communication with the press." While there is no question as to their status as federal detainees, the custody and care of these individuals is dictated by state and local law per the referenced agreement, as are policies relating to media access per the referenced USMS Directive. The photograph that is the subject of this appeal was generated in the course of the Detention Center's admissions procedures and not at the direction of the USMS or for its use. 7 It is a record that is prepared, owned, used, in the possession of, and retained by the local facility access to which is governed by applicable state law.
As noted, the Kentucky Open Records Act is the applicable law, and that law mandates disclosure of the disputed photograph. In an early open records opinion, this office recognized that "[i]t is contrary to the principles of personal liberty recognized in this nation for persons to be secretly held in jail. " OAG 81-395. We rejected the argument that the privacy exception codified at KRS 61.878(1)(a) authorized nondisclosure of names and information relating to persons confined in jails, concluding that "[t]he fact that knowledge of their incarceration may be embarrassing to them or to members of their family is of secondary importance." Extending the reasoning of that opinion to the question of access to photographs of prisoners in jails, in OAG 83-212 the Attorney General 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 . . . ." Accord, OAG 91-131; 02-ORD-203; 04-ORD-055.
Although this office recently adopted the privacy analysis set forth in National Archives & Records Administration v. Favish, above, in affirming the Kentucky Justice Cabinet's denial of a request for autopsy photographs, we find wholly unpersuasive the USMS argument that the holding in that case compels nondisclosure of mug shots (booking photos). Favish recognized that surviving family members have a cognizable privacy interest in photographs depicting a close relative's death and did not address mug shots. To the extent federal law has any bearing on resolution of the issue on appeal, we are guided by the reasoning of the Sixth Circuit Court of Appeals in Detroit Free Press, Inc. v. Department of Justice, above, holding that release of mug shots of federal indictees was not an invasion of the indictees' privacy rights, especially where, as here, the subject of the photograph had already been identified by name. Noting that "the personal privacy of an individual is not necessarily invaded simply because that person suffers ridicule or embarrassment from the disclosure of information in the possession of government agencies," the Sixth Circuit determined that "[e]ven had an encroachment upon personal privacy been found, . . . a significant public interest in the disclosure of the mug shots of the individuals . . . could, nevertheless, justify the release of the information to the public." Detroit Free Press at 97, 98 citing
Schell v. U.S. Dept. of Health and Human Services, 843 F.2d 933 (6th Cir. 1988). 8 The record on appeal confirms that the identity of the subject of the mug shot, William Allen Strickland, has been divulged and his privacy interest is not implicated. Unless a separate exemption can be invoked to deny access, the requested photograph must be disclosed. 9
The "separate exemption" upon which the United States Marshals Service relies is found at KRS 61.878(1)(k), authorizing public agencies to withhold "public records or information the disclosure of which is prohibited by federal law or regulation [.]" As The Evansville Courier correctly notes, this office has repeatedly held that:
[the Freedom of Information Act] has no force as to state records, only the records of a federal agency. By invoking KRS 61.878(1)(k) and 5 U.S.C. 552(b), [an agency] attempt[s] to engraft onto the state act the federal exemptions. While many of the exemptions contained in the state and federal acts are similar in purpose and effect, neither act is intended to supplement the other.
OAG 91-56, p. 3; see also 04-ORD-083 (holding that FOIA exemptions' "protections have generally been deemed inapplicable to state records"); 01-ORD-59; 98-ORD-89; 96-ORD-244; OAG 83-256 (holding that "[t]he federal statute deals with federal records in the hands of federal agencies and employees and no state official has the power to commit the state to treat that statute as though it were a state statute[;] the statute makes no pretense of controlling state records, either to make them open or to make them closed"). Notwithstanding the Illinois federal district court's holding in Brady-Lunny v. Massey, 10 above, we do not believe that 5 U.S.C. § 352(b)(7)(c) and 5 U.S.C. § 552(b)(7)(F) control state records, including the disputed mug shot, and we therefore find that reliance on KRS 61.878(1)(k) is misplaced vis-a-vis these federal exemptions.
Moreover, our review of the authorities relied upon by the United States Marshals Service discloses no federal law or regulation prohibiting disclosure of the Detention Center's mug shot. Instead, the USMS relies on its continuing "legal custody of the detainees, " general concerns relating to privacy and security, and a directive issued by its general counsel. Such a directive is not the functional equivalent of a federal statute or regulation by operation of which a public record in the hands of a state or local agency in Kentucky must be withheld per KRS 61.878(1)(k). Until such time as such a federal statute is enacted or regulation promulgated, the Henderson County Detention Center is bound to observe the mandate of the Open Records Act, as construed in OAGs 81-395, 83-212, and 91-131, as well as 02-ORD-203 and 04-ORD-055, and supported by relevant federal case law, to wit, Detroit Free Press, Inc. v. Department of Justice, above, by releasing the requested mug shot.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Patrick A. ShouldersZiemer, Stayman, Weitzel & Shoulders, LLP20 N.W. First StreetP.O. Box 916Evansville, IN 47706-0916
Miles Hart, JailerHenderson County Detention Center380 Borax DriveHenderson, KY 42420
Cathy DavisAdministrative OfficerHenderson County Detention Center380 Borax DriveHenderson, KY 42420
Footnotes
Footnotes
1 Now, the Cabinet for Health and Family Services.
2 KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]
3 KRS 61.878(1)(k) requires nondisclosure of:
All public records or information the disclosure of which is prohibited by federal law or regulation [.]
4 Detroit Free Press, Inc. v. Department of Justice, 73 F.3d 93 (6th Cir. 1996).
5 5 U.S.C. § 552(b)(7)(C).
6 5 U.S.C. § 552(b)(7)(F).
7 United States Marshall Service Directive 9.33(A) relating to publicity and photographing of federal prisoners prohibits U.S. Marshall Service employees from "posing prisoners for pictures (except as necessary for identification purposes at district offices or detention facilities," and Directive 1.12(A)(1) addresses "release of information, including photographs, by service employees . . . ." From this, we can infer that a separate "mug shot" is generated by the United States Marshal's Service access to which is dictated by applicable federal law and regulation.
8 We find Brady-Lunny v. Massie, above, inapposite. That case involved access to a jail roster that included the names of federal inmates confined in an Illinois county jail. The federal district court affirmed denial of the request on the basis, inter alia, of 28 CFR § 513.34(b) which states that lists of the names of federal inmates "shall not be disclosed." The appeal before us does not involve access to a roster of names of inmates but the mug shot of an inmate whose name has already been disclosed.
9 It is standard practice in the Commonwealth of Kentucky to post inmate photographs, including state inmates held in local facilities, on the Department of Corrections' website located at corrections.ky.gov/kool.htm (Kentucky Offender Online Lookup).
10 See note 8 relative to the existence of a federal regulation prohibiting disclosure of lists of names of federal inmates. The USMS has not cited, nor have we located, a parallel federal statute or regulation prohibiting disclosure of mug shots.