In a recent post, I noted that it’s not clear whether mugshots are public records under OPRA–although these photos are routinely posted online, the GRC has held them to be exempt under OPRA, and the federal courts have held that privacy precludes their release under FOIA.
The other day the Governor signed legislation that makes the answer to this question even less clear. The new statute seeks to stop what it calls the “extortionate” practice of websites that publish mugshots and charge people for removing them from the internet. Specifically, the legislation prohibits soliciting a “pecuniary benefit” in exchange for refraining from disclosing criminal history information about a person, including a mugshot.
Although this statute doesn’t mention OPRA, it states that “the law authorizes public access” to this type of information. But the statement that mugshots are public is contradicted by other language in the statute, which recognizes that privacy rights are affected by publication of mugshots and that people should not have to pay for removal from the internet of this embarrassing information.
This new statute puts OPRA custodians in a difficult position. They are faced with having to reconcile the legislative indications that mugshots are both publicly accessible and subject to the expectation of privacy.
Although the Port Authority of New York and New Jersey makes its records publicly available under its freedom of information policy, as a bi-state agency it has not been subject to OPRA and New York’s Freedom of Information Law. New Jersey and New York recently enacted legislation intended to provide that the Port Authority is covered by both states’ open records statutes.
A few days ago, Governor Christie signed legislation which states that the Port Authority is an agency subject to OPRA as well as New York’s Freedom of Information Law, and New York enacted a law several months ago which similarly provides that the Port Authority’s records are covered by both states’ statutes.
Implementation of the two new statutes will raise a number of issues and require the Port Authority to consider changing some of its freedom of information procedures. As one example, OPRA’s fee for paper copies is only 5 cents per page, while the Port Authority’s copy charge has been 25 cents per page.
In addition, the disparity between the requirements of OPRA and New York’s records law will result in difficult legal questions. New York’s statute says that where there is an inconsistency between the two states’ public record laws, “the law of the state that provided the greatest rights of access” on the new law’s effective date shall apply. A similar provision was removed from the New Jersey legislation based on the conditional veto of the Governor, who pointed out that this language requires each state’s courts to interpret the law of the other state.
However, the Port Authority will have to review each state’s law in dealing with certain record requests, in view of the risk of facing litigation in New York under the “greatest rights of access” requirement. And if a challenge to such a determination is brought in New York, that state’s courts will have to interpret OPRA.
It will be interesting to see what effect, if any, such New York court opinions will have on New Jersey courts’ review of OPRA issues.