26 [92 Op. Att’y

ARREST

CRIMINALRECORDS – PUBLIC INFORMATION ACT – MUG SHOT IN

POSSESSION OF POLICE DEPARTMENT IS NOT “CRIMINAL

HISTORY RECORD INFORMATION”BUT SHOULD BE TREATED

AS INVESTIGATORY RECORD SUBJECT TO INSPECTION UNDER

THE PUBLIC INFORMATION ACT

June 14, 2007

The Honorable John R. Leopold

County Executive, Anne Arundel County 

Your predecessor requested our opinion concerning disclosure

of “mug shots” in the possession of the Anne Arundel County Police

Department – i.e., booking photographs of individuals who have

been arrested by the police department. In particular, must the police

department disclose a mug shot in response to a request under the

Public Information Act? Or do the laws governing “criminal history

record information” preclude the police department from disclosing

the photograph? 

In our opinion, a mug shot in the possession of a police

department is not subject to the restrictions placed on “criminal

history record information” by State and federal law. Rather, it

should be treated as an investigatory record of the police department.

Thus, it should be disclosed in response to a Public Information Act

request unless the department determines that disclosure would be

contrary to the public interest. 

I

Background

A. Mug Shots

“Mug shot” is the term used for a photograph taken as part of

the booking process of a person who has been arrested. See Black’s

Law Dictionary p. 1040 (8 ed. 2004). The practice of taking th

photographs of arrested individuals began in the early part of the 20th
Gen. 26] 27

 The Bertillon system, devised by Alphonse Bertillon, a clerk in 1

the Paris Prefecture of Police, relied on eleven physical measurements of

an individual’s body, together with photographs and notes of

distinguishing marks, for its identification system. See Hutchings,

Modern Forensics: Photography and Other Suspects, 9 Cardozo Stud. L.

& Literature 229, 234-35 (1997). The measurement system was later

superseded by the taking of fingerprints, although the practice of taking

photographs was retained. Id. at 236.

 century as police departments adopted the Bertillon system of

criminal identification. See Downs v. Swann, 111 Md. 53, 57-58, 73

A. 653 (1909). The rationale for preserving a record of the 1

appearance of the individual was that “it is necessary to the proper

enforcement of police regulations and the securing of the prisoner

for trial that a full description of him should be had in order that, if

he should undertake to become a fugitive from justice, the police and

detective department may be in possession of such information as

will enable them to have him identified, wherever he may be found

...” Id. at 58-59. 

Typically, a mug shot consists of frontal and side views of the

head (“mug”) of the individual. It may have a backdrop with lines

showing the individual’s height and a sign with an identification

number assigned to the individual. A mug shot is typically retained

by the police department or law enforcement agency that took the

photograph and does not become a part of the court files relating to

the arrest. 

A mug shot may become part of a “wanted” poster circulated to

the public that identifies a fugitive sought by a law enforcement

agency for a future offense or investigation. A mug shot may be

used in the course of an investigation of other crimes – for example,

as part of a photospread shown to an eye witness to a crime or in a

face book reviewed by crime victims. The photograph may later be

admitted into evidence at a criminal trial to verify an identification

that was made. See Annotation, Admissibility, and prejudicial effect

of admission, of “mug shot,” “rogues’ gallery” photograph, or

photograph taken in prison, of defendant in criminal trial, 30 ALR

3d 908, §2 (1970, 2007 Supp.).
28 [92 Op. Att’y

 The newspaper supported its position that mug shots should be 2

publicly accessible with a legal analysis from the attorney representing the

Maryland-Delaware-D.C. Press Association. See Letter from Alice Neff

Lucan, Esquire, to Lori Blair, Anne Arundel County Office of Law

(October 13, 2005). 

 The Maryland-Delaware-D.C Press Association elaborated on its

3

position in a letter to this Office. Letter from Alice Neff Lucan, Esquire,

to Assistant Attorney General William R. Varga (August 21, 2006). 

B. Request for Mug Shots from County Police Department

A local newspaper raised the issue of public access to mug shots

at the County Police Department. The Police Department requested 2

advice from the County Office of Law, which provided a

memorandum analyzing the issue. The memorandum reasoned that,

because a mug shot is information associated with an arrest, it

constitutes criminal history record information (“CHRI”), which may

only be disseminated for specific purposes. The memorandum

acknowledged that there are exceptions that allow the public release

of certain information such as wanted posters, but that a mug shot

does not fall within any of those exceptions. Id. Accordingly, the

County Office of Law concluded that the photographs could not be

provided to the press. Memorandum from Hamilton F. Tyler, Senior

Assistant County Attorney, to P. Thomas Shanahan, Chief of Police

(March 29, 2006). Your predecessor subsequently requested this

opinion.3

II

Public Information Act

Access to public records in Maryland is governed by the Public

Information Act (“PIA”), codified at Annotated Code of Maryland,

State Government Article (“SG”), §10-611 et seq. The PIA grants

the public a broad right of access to public records in the custody of

the State or a local government. See SG §§10-612, 10-613(a);

Massey v. Galley, 392 Md. 634, 642, 898 A.2d 951 (2006). 

The phrase “public record” includes an original and any copy of

any documentary material, regardless of medium, that is “made by

a unit or instrumentality of the State government or of a political

subdivision or received by the unit or instrumentality in connection

with the transaction of public business.” SG §10-611(g). The
Gen. 26] 29

 On the other hand, many of these exceptions are trumped if 4

another law makes the record accessible. See SG 10-616(a) (“Unless

otherwise provided by law ...”); SG §10-617(a) (same); SG §10-618(a)

(same).

 The PIA defines the “official custodian” to be the officer or 5

employee who “is responsible for keeping the public record.” SG §10-

611(d). The term “custodian” also includes any other authorized

individual who has physical custody of a record. SG §10-611(c).

statute lists a number of examples of the many forms that a public

record may take. Among those is a photograph. SG §10-611(g)(ii)8.

Thus, there is no question that a photograph of a suspect taken by a

police department, or in the custody of the department, is a public

record subject to the PIA. Pemberton v. Bethlehem Steel Corp., 66

Md. App. 133, 168, 502 A.2d 1101, cert. denied, 306 Md. 289, 508

A.2d 488, cert. denied, 479 U.S. 984 (1986). 

Not all “public records” are available to the public. There are

a number of exceptions to the PIA’s general rule that public records

are accessible by the public. First, the PIA defers to various types of

law – common law privileges, federal and State statutes, federal

regulations, court rules, court orders – that may preclude disclosure

of a record. SG §10-615. Second, the PIA itself requires that certain

records and specified categories of information be withheld. SG

§§10-616 and 10-617. With respect to certain types of records, the

PIA gives the custodian of the record discretion to deny access to the

record, or severable portions of the record, if the custodian “believes

that inspection ... by the applicant would be contrary to the public

interest.” SG §10-618. These exceptions to the general rule of

disclosure are not mutually exclusive. Thus, more than one

exception may apply to a particular record. Office of the Attorney 4

General v. Gallagher, 359 Md. 341, 753 A.2d 1036 (2000). Finally,

the PIA includes a catch-all provision that, in the event no exception

applies and the official custodian of the record believes that its

5

disclosure “would cause substantial injury to the public interest,” the

official custodian may temporarily withhold the record and seek a

court order preventing disclosure. SG §10-619.

In our view, two of the exceptions to disclosure under the PIA

potentially apply to mug shots. If a mug shot is considered CHRI,

then the State statute and federal regulations restricting the

dissemination of CHRI may limit its disclosure under the PIA
30 [92 Op. Att’y

 The question posed to us concerned booking photographs of adult 6

arrestees in the possession of a police department, and we confine our

analysis to the laws that may govern disclosure of those photographs. A

mug shot of a juvenile taken in connection with his or her arrest would

ordinarily be confidential pursuant to the statute governing juvenile

records. Annotated Code of Maryland, Courts & Judicial Proceedings

Article, §3-8A-27.

In addition, other laws may govern photographs of defendants in the

possession of other criminal justice agencies. For example, Maryland law

requires the Division of Correction to include a photograph of an inmate

in the inmate’s case record, but places specific restrictions on disclosure

of the contents of the case record. See Annotated Code of Maryland,

Correctional Services Article, §§3-601(a)(2), 3-602; 86 Opinions of the

Attorney General 226, 228-29 (2001); see also Cowles Publishing Co. v.

Spokane Police Dep’t., 987 P.2d 620, 624 (Wash. 1999) (en banc)

(holding that similar Washington statute rendered jailhouse and arrest

photos exempt from disclosure under public records statute).

 In 2005, Maryland joined the National Crime Prevention and 7

Privacy Compact, enacted by Congress in 1998. CP §10-237 et seq.; see

also 42 U.S.C. §14611 et seq. That law governs interstate and federal-

(continued...)

pursuant to SG §10-615(2)(i) and (ii). In addition, if a mug shot is 6

considered an investigatory record, the PIA’s discretionary exception

set forth in SG §10-618(f) would also apply.

III

Analysis

A. Restrictions on Disclosure of Criminal History Record

Information

The statute establishing the Maryland Criminal Justice

Information System (“CJIS”) restricts the dissemination of CHRI in

the possession of law enforcement agencies such as local police

departments. Annotated Code of Maryland, Criminal Procedure

Article (“CP”), §10-201 et seq. That law derives from, and

incorporates, a related federal statute and regulations. As explained

above, the PIA incorporates restrictions on disclosure of public

records that are imposed by “other law.” SG §10-615. Thus, if mug

shots fell within the definition of CHRI, a police department

responding to a PIA request for such photographs must comply with

the restrictions of the State CJIS statute and related federal laws.7
Gen. 26] 31

 (...continued) 7

state exchanges of CHRI for noncriminal justice uses. The Compact does

not reduce obligations of the State under the CJIS statute or the federal

CHRI regulations with respect to its own records. CP §10-246(c).

 The term does not include “identification information such as 8

fingerprint records if such information does not indicate the individual’s

involvement with the criminal justice system.” 28 CFR §20.3(d).

Federal law requires the Attorney General of the United States to 9

“acquire, collect, classify, and preserve identification, criminal

identification, crime, and other records” and to “exchange such records

and information with, and for the official use of, ... the States, cities, and

(continued...)

1. Federal Law

The federal law governing state CHRI systems is linked to the

federal monetary assistance that has supported the creation and

maintenance of those systems. Since 1973, federal law has attached

various conditions to this financial support, including requirements

that State systems include disposition as well as arrest data, that the

information be kept current, that “the security and privacy of all

information is adequately provided for,” that the information be used

only for “law enforcement and criminal justice and other lawful

purposes,” and that the State have procedures to correct inaccurate

or incomplete information. 42 U.S.C. §3789g(b).

The Department of Justice has issued regulations intended to

“assure that [CHRI] wherever it appears is collected, stored, and

disseminated in a manner to ensure the accuracy, completeness,

currency, integrity, and security of such information and to protect

individual privacy.” 28 CFR §20.1. The regulations define CHRI

as “information collected by criminal justice agencies on individuals

consisting of identifiable descriptions and notations of arrests,

detentions, indictments, information, or other formal criminal

charges, and any disposition arising therefrom, including acquittal,

sentencing, correctional supervision, and release....” 28 CFR

§20.3(d). The phrase “criminal justice agency” includes the courts 8

and agencies involved in the “administration of criminal justice,”

such as a police department. 28 CFR §20.3(b), (g); see also 28 CFR

Part 20 Appendix (discussion of §20.3(g)). The regulations provide

separate rules for state record systems and records maintained by the

Federal Bureau of Investigation (“FBI”). 

9
32 [92 Op. Att’y

 (...continued) 9

penal and other institutions.” 28 U.S.C. §534(a)(1) and (4). The Attorney

General has delegated responsibility for these records to the FBI. 28 CFR

§0.85(b). Because this opinion concerns mug shots that are part of a

police department’s own records and not photographs that a police

department may have obtained through the FBI, we do not discuss the

regulations pertaining to the latter records. 

The regulations apply to any agency whose collection, storage, 10

or dissemination of CHRI has been supported by federal funding available

after July 1, 1973, pursuant to Title I of the Omnibus Crime Control and

Safe Streets Act. 28 CFR §20.20(a);see also 63 Opinions of the Attorney

General 197, 204 (1978).

 “Nonconviction data” is defined as follows: 11

... arrest information without disposition if an

interval of one year has elapsed from the date of

arrest and no active prosecution of the charge is

pending; information disclosing that the police

(continued...)

The regulations related to state record systems apply to any state

or local agency that collects, stores, or disseminates CHRI. 28 10

CFR Part 20, Subpart B (“State and Local Criminal History Record

Information Systems”). The regulations establish standards for state

CHRI systems, including the completeness, accuracy, dissemination,

and security of such records. Complete and accurate records are to

be maintained in a “central repository.” 28 CFR §20.21(a). A

criminal justice agency is to query the central repository before

disseminating any CHRI “unless it can be assured that the most upto-date disposition data is being used.” Id. 

The regulations draw a distinction between CHRI that relates to

pending proceedings and proceedings that have resulted in a

conviction, on the one hand, and CHRI that relates to proceedings

that did not result in a conviction, on the other. With respect to the

former category, the federal regulations place no limitations on

dissemination. A state may routinely make available conviction data

and pending charges, if it chooses to do so, or it may limit

dissemination. 28 CFR Part 20 Appendix. 

With respect to “nonconviction data”– generally arrests or other

proceedings that have not resulted in a conviction – the regulations 11
Gen. 26] 33

 (...continued) 11

have elected not to refer a matter to a prosecutor,

that a prosecutor has elected not to commence

criminal proceedings, or that proceedings have

been indefinitely postponed; and information that

there has been an acquittal or a dismissal.

28 CFR §20.3(q). 

require that states set some parameters on the dissemination of that

class of CHRI, but ultimately defer to the states on what those

parameters should be. 28 CFR §20.21(b); see also 28 CFR Part 20

Appendix. The regulations allow dissemination of nonconviction

data to criminal justice agencies for criminal justice administration

and criminal justice agency employment. 28 CFR §20.21(b)(1).

Such data may also be disseminated as part of an agreement for

services related to the administration of criminal justice and for

research and statistical purposes. 28 CFR §20.21(b)(3) and (4).

Finally, nonconviction data may be disseminated to “[i]ndividuals

and agencies for any purpose authorized by statute, ordinance,

executive order, or court rule, decision, or order, as construed by

appropriate State or local officials or agencies[.]” 28 CFR

§20.21(b)(2). However, the regulations make clear that they do not

mandate that a state disseminate such information and that state

officials are to determine whether dissemination is required by local

law. 28 CFR §20.21(c)(3). The regulations thus give states

substantial discretion to adopt policies that severely limit the

availability of nonconviction CHRI or, on the other hand, that make

it widely available. As the Department of Justice commentary to the

regulations explains, “a State could place a total ban on

dissemination [of nonconviction data] if it so wished. The State

could, on the other hand, enact laws authorizing any member of the

private sector to have access to nonconviction data.” 28 CFR Part

20 Appendix.

Any dissemination of CHRI to a noncriminal justice agency is

to be limited to the purpose for which it was given. 28 CFR

§20.21(c)(1). The existence of CHRI is not to be confirmed for any

person or agency if that person or agency is not eligible to actually

receive the information. 28 CFR §20.21(c)(2). 

The federal regulations do not apply to CHRI contained in

certain types of records, including “[p]osters, announcements, or

lists for identifying or apprehending fugitives or wanted persons”
34 [92 Op. Att’y

Also excluded is CHRI found in court records of public judicial 12

proceedings, published court or administrative opinions and public

judicial, administrative or legislative proceedings, records of traffic

offenses maintained by motor vehicle agencies, and announcements of

executive clemency. 28 CFR §20.20(b)(3)-(6). 

 The regulation reads:

13

Nothing in these regulations prevents a

criminal justice agency from disclosing to the

public criminal history record information related

to the offense for which an individual is currently

within the criminal justice system. Nor is a

criminal justice agency prohibited from

confirming prior criminal history record

information to members of the news media or any

other person, upon specific inquiry as to whether

a named individual was arrested, detained,

indicted, or whether an information or other

formal charge was filed, on a specific date, if the

arrest record information or criminal record

information disclosed is based on data excluded

by [§20.20(b)]. The regulations do not prohibit

the dissemination of criminal history record

information for purposes of international travel,

such as issuing visas and granting of citizenship.

and “[o]riginal records of entry such as police blotters maintained by

criminal justice agencies, compiled chronologically and required by

law or long standing custom to be made public ...” 28 CFR

§20.20(b)(1) and (2). Furthermore, the regulations do not prohibit 12

a criminal justice agency from publicly disclosing CHRI related to

an offense for which an individual is currently within the criminal

justice system. 28 CFR §20.20(c).13

2. Maryland Criminal Justice Information System

In 1976, the General Assembly enacted the CJIS statute to

create a uniform management system for managing CHRI in

Maryland. Chapter 239, Laws of Maryland 1976, now codified at

Annotated Code of Maryland, Criminal Procedure Article (“CP”),

§10-201 et seq. The Legislature expressed an intent “to create and

maintain an accurate and efficient criminal justice information

system” to serve the needs of criminal justice units for accurate and
Gen. 26] 35

 The statute also created the Criminal Justice Information 14

Advisory Board to monitor the operation of CJIS and to make

recommendations for regulations, rules and procedures governing the

system. CP §10-207 et seq.

 The statute also authorizes the Court of Appeals to promulgate 15

similar rules for the judicial branch. The Court has adopted rules

concerning the transmittal of CHRI bythe courts to the Central Repository

and the inspection of CHRI in court records. See Maryland Rules 16-308,

16-503. 

Other regulations govern criminal history checks for particular

purposes such as working with children, working in adult dependent care

programs, and holders of commercial driver licenses who transport

hazardous material. COMAR 12.15.02 - 12.15.04. Numerous State

statutes also require criminal background checks in connecting with

various licensing schemes and public sector employment. 

 “Criminal justice unit” is defined in some detail in CP §10- 16

201(f).

current information and to ensure the “right of persons to be free

from improper and unwarranted intrusions into their privacy.” CP

§10-203(1)(ii)-(iii). The legislation was designed to ensure that

Maryland’s system complied with the federal regulations. CP §10-

203(1)(i); see also Memorandum of Thomas Peddicord, Governor’s

Legislative Office, to General Assembly concerning Senate Bill 415

and House Bill 1106 (February 12, 1976) at p. 3; Memorandum of

Thomas Peddicord, Governor’s Legislative Office, to General

Assembly concerning House Bill 1106 (April 1, 1976) at p.1. 

The statute established a CJIS Central Repository in the

Department of Public Safety and Correctional Services (“DPSCS”).

CP §10-213. The General Assembly accorded the Secretary of 14

DPSCS broad authority to adopt regulations relating to executive

branch agencies and local criminal justice agencies that, among other

things, “regulate the collection, reporting, and dissemination of

[CHRI] ...” CP §10-221(a)(1) and (b)(1). The Secretary has 15

exercised that authority to adopt regulations that reiterate and

elaborate on the CJIS statute. See COMAR 12.15.01. 

Each criminal justice unit – which by definition includes a

police department – must report CHRI to the CJIS Central 16

Repository according to specified time tables and procedures. CP

§10-214. The Secretary of DPSCS specifies “content, format, and
36 [92 Op. Att’y

 In order to avoid duplicate reporting, the statute allows the 17

Secretary and the Court to specify reporting of particular events by

particular units. CP §10-215(b).

media for CHRI reported to the Central Repository.” COMAR

12.15.01.09. A police department or other criminal justice unit is

free to maintain CHRI that is more detailed than that reported to the

Central Repository. CP §10-214(e).

For purposes of the Maryland statute, CHRI is defined similarly

to the federal regulations, but in somewhat greater detail. It is

defined generally as “data that are developed or collected by a

criminal justice unit about a person and that pertain to a reportable

event.” CP §10-201(d)(1); see also COMAR 12.15.01.03B(3). A list

of “reportable events” is itemized in CP §10-215(a), with the proviso

that the list may be expanded by the Secretary of DPSCS by

regulation or by the Court of Appeals by rule. Included on the list 17

is “an arrest.” CP §10-215(a)(2). The statute excludes certain items

from the definition of CHRI – among other things, data contained in

intelligence or investigatory files, police work product records used

only for police investigations, police blotter entries, and wanted

posters. CP §10-201(d)(3); COMAR 12.15.01.03B(3)(a), (c).

Whether CHRI is in the custody of the CJIS Central Repository

or a local criminal justice agency, the general statutory restriction on

the dissemination of CHRI is the same:

Except in accordance with applicable

federal law and regulations, a criminal justice

unit and the Central Repository may not

disseminate [CHRI].

CP §10-219(a) (emphasis supplied). The DPSCS regulations

similarly state:

The Central Repository and other criminal

justice agencies may not access or disseminate

[CHRI] except in accordance with federal and

State laws and regulations and the regulations

promulgated pursuant to [CP §10-221].

COMAR 12.15.01.10A. 
Gen. 26] 37

 Subject to an exception concerning pending criminal 18

proceedings, an individual has the right to access his or her own CHRI,

including information in the custody of a local criminal justice agency and

a right the challenge the completeness, contents, accuracy, or

dissemination of such information. See CP §§10-222 - 10-227; COMAR

12.15.01.05 - .07. 

 Some state statutes governing CHRI make clear that mug shots 19

are publicly available. See Neb. Rev. Stat. Ann. §29-3521(1) (stating that

“photographs taken in conjunction with an arrest for purposes of

identification of the arrested person” are publicly available). Some

statutes specify that such photographs in the possession of the central

repository may be made available to the public with the assent of the

individual to whom the photograph pertains. See W. Va. Code, §15-2-

24(d); West Virginia State Police v. Taylor, 499 S.E.2d 283 (W. Va.

1997).

The term “disseminate”, which is not defined in the federal

regulations, has parallel, though not identical, definitions in the State

statute (“to transmit [CHRI] in any form”) and regulations (“to

transmit CHRI in any oral or written form”). CP §10-201(g);

COMAR 12.15.01.03B(7). Transmissions within a criminal justice

unit, to the Central Repository, or to another criminal justice unit for

subsequent proceedings relating to the same crime are excluded from

the definition of dissemination. Id. In addition, the regulations

allow disclosure of CHRI by a law enforcement agency “for or

during the conduct of a public judicial proceeding.” COMAR

12.15.01.03.B(7) (excluding such disclosures from definition of

“disseminate”); see also Criminal History Records Information User

Agreement (revised 10/25/05) Appendix, p.13.

Under the DPSCS regulations, a noncriminal justice agency or

individual may not normally obtain CHRI from a criminal justice

agency, other than the CJIS Central Repository. COMAR

12.15.01.10B. The regulations set forth in some detail the 18

circumstances under which the Central Repository will disseminate

CHRI or authorize a criminal justice agency, such as a police

department, to do so. COMAR 12.15.01.10 through 12.15.01.13. 

3. Whether Mug Shots are CHRI

The Maryland CJIS statute does not explicitly address the status

of mug shots in the possession of a police department. Nor have 19
38 [92 Op. Att’y

 The Court of Special Appeals implicitly held that mug shots are 20

not CHRI when it asserted in Pemberton that such photographs are not

covered by SG §10-615, the part ofthe PIA which incorporates other State

and federal statutes – such as the statutes governing CHRI – to the extent

that they require an agency to deny inspection of a record. 66 Md. App.

at 168-69. However, the Court did not analyze the issue, presumably

because the parties did not bring it to the Court’s attention. See Part III.B.

1 of this opinion.

 The definition of CHRI in the federal regulations refers to 21

“information ... on individuals consisting of identifiable descriptions and

notations of arrests ....” 28 CFR §20.3(d). 

the Maryland courts explicitly considered whethersuch photographs

are CHRI. In our view, they are not. 20

Subject to certain exceptions, the CJIS statute defines CHRI as

“data ... collected by a criminal justice unit about a person and that

pertains to a reportable event.” CP §§10-201(d)(1) (emphasis

added). An arrest is a reportable event. CP §10-215(a)(2). Is a

booking photograph properly characterized as “data” pertaining to

that event? 

A common dictionary definition of “data” is “information, esp.

information organized for analysis or used as the basis for decisionmaking.” Webster’s II, New College Dictionary (1995) at pp. 287-

88. Similarly, the definition of CHRI in the federal regulations

refers to “information ... on individuals consisting of identifiable

descriptions and notations of arrests ....” 28 CFR §20.3(d). This, of

course, simply brings us back to the “I” in CHRI, which stands for

“information.” Perhaps the key point here is that CJIS statute

protects certain information, not particular records. 

In our view, the information that the CJIS statute and related

laws are intended to protect concern the history of the individual’s

encounters with law enforcement, not his or her physical appearance.

The CJIS statute and regulations do not appear to contemplate mug

shots as “data” encompassed within CHRI. The CJIS statute

explicitly includes certain identifying information – i.e., fingerprints

– within the definition of CHRI. CP §§10-201(d)(2)(iii), 10-216.

Fingerprints have long been the key component ensuring the

accuracy of criminal history records. Pursuant to CP §10-221(b)(1) 21
Gen. 26] 39

 For example, State Law requires that a DNAsample be collected 22

from an offender in connection with certain events that are also

“reportable events” under the CJIS statute. See Annotated Code of

Maryland, Public Safety Article (“PS”), §2-504(a)(1); CP §10-215(a)(11)-

(12). We are not aware of any authority that indicates that such DNA data

is subject to the restrictions on dissemination of CHRI. Rather the

collection and use of such data is generally controlled by the DNA

database law, which has its own restrictions on disclosure. PS §2-501 et

seq.; see 91 Opinions of the Attorney General 135 (2006).

and COMAR 12.15.01.09, the Secretary of DPSCS specifies the

format for submission of CHRI to the central repository. The

Secretary requires agencies to submit CHRI with identifying

information in the form of fingerprints. COMAR 12.15.01.09-1. 

The CJIS statute does not require arresting agencies to take or

submit photographs and other identifying information as part of the

CHRI submitted to the State’s Central Repository. Nor is any 22

mention made in the regulations of submitting photographs to the

Central Repository. This omission strongly suggests that such

photographs are not CHRI. See 1990 Va. Op. Atty. Gen. 9 (August

30, 1990), 1990 WL 511491 (observing that Virginia law does not

require booking photographs to be submitted to that state’s central

repository and concluding that “mug shots” are not CHRI); Tex.

Atty. Gen. Op. OR2002-3469, 2002 WL 32052787 (June 26, 2002)

(concluding that mug shots do not fit the definition of CHRI under

either federal or Texas law). 

Moreover, a criminal justice agency such as a police department

is ordinarily required to query the Central Repository before

disseminating CHRI to a noncriminal justice entity or individual. 28

CFR §20.21(a); COMAR 12.15.01.10B. It seems very unlikely that

the drafters of those regulations contemplated that a police

department would be required to follow that procedure before using

mug shots in connection with an investigation. For similar reasons,

a California court has held that a mug shot is not “information”

within the meaning of California’s CHRI statute. People v.

McCloud, 146 Cal. App. 3d 180, 182-83, 194 Cal. Rptr. 75 (Ct.App.

1983). The court reasoned that the absence of an explicit reference

to mug shots in the definition of CHRI evidenced a legislative intent

not to encompass such photographs:
40 [92 Op. Att’y

The FBI-operated NCIC 2000 System, providing federal, state, 23

and local criminal justice agencies access to criminal justice information

including CHRI, allows the entry of a mug shot in each individual’s

record. See <http://www.fbi.gov/hq/cjisd/ncic.htm>. However, the

Maryland Central Repository has not yet upgraded to the NCIC 2000

System. It is our understanding that few Maryland law enforcement

agencies routinely submit mug shots to the Maryland CJIS unit at this

time; many agencies lack the ability to submit mug shots electronically.

The legislative omission was patently

intentional, for if it were not so, criminal

investigation would become well nigh

impossible, and photographic lineups

necessarily forbidden. (Indeed, few if any post

offices, or federal buildings or banks, lack a

prominent display of mug shots of “wanted”

criminal suspects).

146 Cal. App. 3d at 183. 

With the advent of digital photography, it might be argued that

the term “data” literally encompasses photographs. The electronic

information from which a digital photograph is printed is often

referred to as “data” – e.g., “computer data”, “digital data.”

Moreover, a digital photograph has the potential to be easily

transmitted to a central repository with other identifying information

concerning a reportable event. Although mug shots have not been

historically centralized, as technology evolves, mug shots captured

at the time of booking are likely to become a routine part of

centralized record systems. The Legislature may want to consider 23

whether to address more explicitly the status and use of such

photographs under the CJIS statute. 

In any event, regardless of whether a photograph is “data” for

purposes of the Maryland CJIS statute, thatstatute excludes from the

definition of CHRI “data contained in intelligence or investigatory

files or police work product records used only in police

investigations.” CP §10-201(d)(3)(i); see also COMAR

12.15.01.03B(3)(a). Mug shots have long been employed in

connection with investigations and as evidence at criminal trials.

Indeed, their use has been the subject of numerous judicial opinions.
Gen. 26] 41

 The annotation notes that mug shots are generally used for 24

identification purposes, but may be inadmissible at trial to the extent that

they suggest to the jury that the defendant may have bad character or a

prior criminal record. Annotation, 30 ALR 3d 908, §2.

See, e.g., Straughn v. State, 297 Md. 329, 333-36, 465 A.2d 1166

(1983) (upholding introduction of mug shots used as part of extrajudicial identification of defendant by witness); Annotation,

Admissibility, and prejudicial effect of admission, of “mug shot,”

“rogues’ gallery” photograph, or photograph taken in prison of

defendant in criminal trial, 30 ALR 3d 908 (collecting cases on

admissibility of mug shots in a criminal trial); see also Pemberton 24

v. Bethlehem Steel Corp., 66 Md. App. at 169 (describing the use of

mug shots for investigative purposes). Indeed, the original purpose

for collecting mug shots was in anticipation of their use to apprehend

fugitives. Thus, in our view, such photographs are excluded from

the definition of CHRI and the CJIS statute is not “other law” under

SG §10-615 that would not prohibit a police department from

disclosing mug shots. 

B. Application of Investigatory Records Exception

1. Maryland Law

Under SG §10-618, a custodian may withhold all or part of a

public record that is the subject of a PIA request if the record falls

into certain categories and the custodian believes that disclosure

would be “contrary to the public interest.” SG §10-618(a). One of

those categories relates to certain law enforcement records. It reads,

in relevant part:

(1) Subject to paragraph (2) of this

subsection, a custodian may deny inspection of:

(i) records of investigations

conducted by ... a police department, or a

sheriff;

(ii) an investigatory file compiled

for any other law enforcement, judicial,

correctional, or prosecution purpose; or
42 [92 Op. Att’y

 The phrase “person in interest” is defined in somewhat greater 25

detail in SG §10-611(e).

(iii) records that contain intelligence

information or security procedures of ... a

police department, a State or local correctional

facility, or a sheriff.

SG §10-618(f)(1). The PIA provides that such records may be

withheld from a “person in interest” – essentially, the person who is

the subject of the record – only if disclosure of the record would 25

result in one of seven listed harms:

(i) interfere with a valid and proper

law enforcement proceeding;

(ii) deprive another person of a right

to a fair trial or an impartial adjudication;

(iii) constitute an unwarranted

invasion of personal privacy;

(iv) disclose the identity of a

confidential source;

(v) disclose an investigative

technique or procedure;

(vi) prejudice an investigation; or

(vii) endanger the life or physical

safety of an individual.

SG §10-618(f)(2). Of course, each of these listed concerns would

also justify withholding a record from a requester who does not

qualify as a “person in interest.”

In Pemberton, 66 Md. App. 133, the Court of Special Appeals

discussed the possible application of the PIA exception for

investigatory records to mug shots. In that case, a union official

brought suit against Bethlehem Steel Corporation and various

individuals for invasion of privacy and other causes of action. In

support of his claim for invasion of privacy, Pemberton alleged that

the defendants had sent union members copies of documents relating
Gen. 26] 43

As noted in footnote 20 above, the Court did not analyze 26

whether the State and federal laws restricting dissemination of CHRI made

mug shots confidential under SG §10-615(2)(i) and (ii), presumably

because the parties did not raise the issue. The Court’s statement that mug

shots are not covered by the exceptions in SG §10-615 is, of course,

consistent with our conclusion in Part III.A. of this opinion. 

to his prior criminal conviction, including a mug shot. Pemberton

contended that the mailing of his mug shot constituted unwarranted

publicity of the details of his private life. Id. at 161-62. 

The Court of Special Appeals affirmed the trial court’s

dismissal of that claim. It held that the circulation of court records

related to the conviction could not support the claim, because court

records are “open to public inspection” and therefore could not be

“private facts.” 66 Md. App. at 166-68. The Court then turned to

whether a mug shot is similarly “open to public inspection.” The

Court first determined that a mug shot is a public record and that,

under the PIA, public records are ordinarily open to public

inspection. It then considered whether any exception to the PIA

would shield a mug shot from public inspection. The Court

concluded that none of the mandatory exceptions applied and 26

discussed in detail only the exception for investigatory records:

It is not at all clear that a “mug shot”

necessarily constitutes or is part of a “record

of investigation” so as to be permissibly

excludable in the first instance. But assuming,

arguendo, that it is of that character, the fact is

that it is nevertheless a public record that is

not per se excluded from public access. Many

of these “mug shots” are retained for

comparison purposes; victims of crime often

are invited to look through books or arrays of

them in order to identify their predators.

Id. at 169 (emphasis in original). The Court held that it could not

regard Pemberton’s mug shot “as being a private fact; it is, by law,

a public record to which the public may have had access.” Id.

As the Court in Pemberton suggested, the premise that a mug

shot is an investigatory record can be disputed. A photograph taken

as part of a routine booking process might be analogized to an arrest

log, described in a 1978 Attorney General opinion as “docket-type
44 [92 Op. Att’y

 In a case that pre-dated the PIA, the Court of Appeals suggested 27

that an adverse impact on an individual’s reputation or privacy might

counsel against disclosure of mug shots related to arrests that had not

resulted in convictions. Downs v. Swann, 111 Md. 53, 64, 73 A. 653

(1909).

books containing the date of arrest, the name of the suspect arrested,

the address, age, and race of the suspect, the name of the arresting

officer, and the criminal charge and appropriate case number.” 63

Opinions of the Attorney General 543 (1978). In that opinion,

Attorney General Burch concluded that arrest logs are not ordinarily

records of investigation subject to the exception because they

“merely reflect the end result of a police investigation ... [and] ...

contain no information whatever concerning the actual

investigation.” Id. at 547; cf. Ala. Op. Atty. Gen. No. 2004-108

(2004), 2004 WL 771846 (equating a mug shot in a police database

to the portion of an arrest report that would normally be available to

the public under the Alabama open records law). If a mug shot is

conceived of as simply one element of an arrest log, then the

exception would not apply and it too would be publicly available.

However, the 1978 opinion cautioned that, if investigatory material

were included in an “arrest log,” it would be subject to the

investigatory records exception. 63 Opinions of the Attorney

General at 547.

As outlined in Part I.A. of this opinion, a mug shot does not

simply serve as a record of the culmination of a past investigation.

The original impetus for taking such photographs was to create an

identification record that police could use to apprehend the

defendant if he or she became a fugitive on the charges underlying

the arrest. Moreover, a mug shot is also designed to be used in

future investigations, unrelated to that arrest, to identify suspects; it

may be used in a wanted poster to help locate the individual if he or

she becomes a fugitive on another charge. It is not simply a record

of a past event involving law enforcement and a defendant, but is

created as a tool for investigation. Thus, in our view, unlike most of

the material that would be found in a traditional arrest log, such

photographs are encompassed by the investigatory records

exception. They are open to inspection in response to a PIA request

unless the custodian can identify a public interest justifying nondisclosure.27
Gen. 26] 45

 The regulation states that “[p]ersonnel of the Department of 28

Justice ... should not make available photographs of a defendant unless a

law enforcement function is served thereby.” 28 CFR §50.2(b)(7).

2. Analogous Federal Cases

The PIA’s exception for law enforcement records was modeled

on a similar exception that appears in the federal Freedom of

Information Act (“FOIA”). See 5 U.S.C. §552(b)(7). Federal court

applications of the FOIA exception are “ordinarily persuasive”

authority with respect to parallel exceptions in the PIA. Faulk v.

State’s Attorney for Harford County, 299 Md. 493, 506, 474 A.2d

880 (1984) (relying on federal case law construing 5 U.S.C.

§552(b)(7)).

The Department of Justice has taken the position in regulations

that photographs of defendants in the possession of units of the

Department should not be disclosed, except for a law enforcement

purpose. 28 CFR §50.2(b). When requests have been made for 28

mug shots, the Department has invoked the law enforcement records

exception under FOIA. In particular, the Department has argued that

mug shots are protected from disclosure under what is commonly

referred to as Exemption 7(C) to FOIA, formally codified as 5

U.S.C. §552(b)(7)(C). Exemption 7(C) allows a federal agency that

is responding to a FOIA request to withhold:

(7) records or information compiled for

law enforcement purposes, but only to the

extent that the production of such law

enforcement records or information ...

(C) could reasonably be expected to

constitute an unwarranted invasion of personal

privacy.
46 [92 Op. Att’y

 In permitting an agency to withhold records if production of 29

those records “could reasonably be expected to constitute an unwarranted

invasion of personal privacy,” the federal exemption may be broader than

a similarly worded PIA exception that covers certain law enforcement

records that “would ... constitute an unwarranted invasion of personal

privacy.” Compare 5 U.S.C. §552(b)(7)(C) with SG §10-618(f)(2)(iii)

(emphasis added); see also United States Department of Justice v.

Reporters Committee for Freedom of the Press, 489 U.S. 749, 756 & n.9

(1989) (explaining that 1974 amendment substituting “could reasonably

be expected to” for “would” in Exemption 7(C) was intended to create a

more flexible standard for an agency to withhold records).

 An intermediate appellate court in Michigan reached a similar 30

conclusion under the Michigan version of FOIA. See Detroit Free Press

v. Oakland County Sheriff, 418 N.W.2d 124, 128-30 (Mich. Ct.

App.1987). In that case, the Michigan Court of Appeals held that the

disclosure of a booking photograph to a newspaper would not violate

either common law or constitutional principles of privacy and therefore a

(continued...)

5 U.S.C. §552(b)(7)(C). Two federal courts have assessed the 29

merits of that argument and have reached different results.

In Detroit Free Press, Inc. v. Department of Justice, 73 F.3d 93

(6 Cir. 1996), a newspaper sought the release of mug shots of eight th

defendants awaiting trial on federal charges. The United States

Marshals Service (a unit of the Department of Justice) had declined

to provide the photographs, on the ground that release of the photos

would invade the personal privacy interests of the defendants. The

Marshals Service relied on Exemption 7(C). 

A divided panel of the Sixth Circuit held that the release of

mug shots relating to pending criminal proceedings in which the

names of the defendants had already been made public would not

invade the privacy of the defendants. Detroit Free Press, 73 F.3d at

97. Moreover, even if there were some encroachment of the

defendants’ privacy interests, the Court said, there was a significant

public interest in the disclosure of mug shots of defendants awaiting

trial that could outweigh that interest. Id. at 97-98. The Court

reasoned that disclosure of such photographs subjected the

government to public oversight – it might reveal the government’s

error in detaining the wrong person or the circumstances surrounding

the arrest of the individual. Id. at 98. Thus, the Court concluded, the

disclosure of the mug shots would not constitute an “unwarranted

invasion of personal privacy.” Id. (emphasis added). The Court 30
Gen. 26] 47

 (...continued) 30

Michigan FOIA exemption for disclosures that “would constitute a clearly

unwarranted invasion of ... privacy” did not apply. Cf. Paul v. Davis, 424

U.S. 693 (1976) (no constitutional violation when police distributed

photographs of individuals arrested for shoplifting).

explicitly declined to decide whether the release of mug shots in

situations involving dismissed charges, acquittals, or completed

criminal proceedings would amount to an invasion of privacy. Id. at

97.

A few years later, a federal district court in another circuit

reached a different conclusion in slightly different circumstances.

In Times Picayune Publishing Corp. v. United States Department of

Justice, 37 F. Supp.2d 472 (E.D. La. 1999), a newspaper sought to

obtain the mug shot of a prominent businessman who had recently

pled guilty to criminal charges arising out of a political corruption

investigation. As in Detroit Free Press, the United States Marshals

Service denied the request, citing Exemption 7(C). The newspaper

sued under FOIA, arguing that, because the photo wastaken after the

guilty plea, the photo was not taken for a law enforcement purpose,

but rather an administrative purpose; thus, it was not even within the

category of records covered by Exemption 7(C). The newspaper

also contended that privacy was not at issue, given the public nature

of the guilty plea and the prominence of the defendant. 37 F.

Supp.2d at 475. 

The district court rejected the first argument, noting that the

Marshals Service is a law enforcement agency and holding that

processing a defendant is part of its law enforcement duties. Id. The

court further held that the defendant had a protectable privacy

interest under FOIA in the photograph, and observed that mug shots

“generally disclose unflattering facial expressions” and carry a

“stigmatizing effect.” Id. at 477. It distinguished the Detroit Free

Press decision on the ground that the defendants in that case were

awaiting trial while the case before it involved a completed criminal

proceeding. Id. at 478. Although the court conceded that there

might be a public interest in the disclosure of mug shots in some

circumstances – encouraging witnesses to come forward, exposing

racial or ethnic bias in prosecutions, and revealing or disproving

prisoner abuse – it held that disclosure of the defendant’s mug shot

would not serve those interests. Id. at 480-81. The court concluded

that the defendant’s privacy interest outweighed any public interest

in the case before it and upheld the refusal of the Marshals Service
48 [92 Op. Att’y

 Attorneys General in other states have reached similar 31

conclusions under their respective public records laws. See 86 Ops. Cal.

Atty. Gen. 132 (2003), 2003 WL 21672840 (mug shots in the possession

of a county sheriff were disclosable subject to the investigatory records

exemption of the California Public Records Act); XXI Kan. Op. Atty.

Gen. 9 (1987), 1987 WL 290422 (mug shots may be withheld from

disclosure under the Kansas Open Records Act under exemption relating

to criminal investigation records); but cf. 1990 Va. Op. Atty. Gen. 9, 1990

WL 511491 (mug shots must be disclosed in response to a request under

Virginia FOIA, as the exemption for investigatory records explicitly

excludes information “relative to the identity” of a subject).

to disclose the photograph. We understand that the Department of

Justice continues to enforce its policy not to provide mug shots to

media organizations, except in the Sixth Circuit, where the Detroit

Free Press decision is the law of the circuit. See U.S. Dep’t of

Justice, Bureau of Justice Statistics, Use and Management of

Criminal History Record Information: A Comprehensive Report,

2001 Update, p.54.

3. Summary

Although the Court of Special Appeals in Pemberton briefly

analyzed the application of SG §10-618(f) to mug shots, it did not

definitively decide whether a mug shot would come within the

purview of that exception to the PIA’s general rule of disclosure.

The federal court decisions applying a similar exception in FOIA

apparently agree that mug shots related to current criminal

proceedings fall within the type of records potentially covered by the

related federal exception, but disagree to some extent on whether the

disclosure of mug shots in such situations constitutes an unwarranted

invasion of a defendant’s privacy.

In our view, a mug shot that is part of a file related to a

criminal proceeding is within the purview of SG §10-618(f). If the 31

photograph is in the file of a police department, it constitutes a

“record of investigation” covered by SG §10-618(f)(1)(i). It may

also be properly characterized as an “investigatory file compiled for

[a] law enforcement, judicial, correctional, or prosecution purpose”

under SG §10-618(f)(1)(ii). 

Thus, if a request is made under the PIA to a police department

for mug shot, it should be disclosed unless the custodian can

articulate a reason why it would be “contrary to the public interest”
Gen. 26] 49

 The possible adverse effect could be eliminated or minimized by 32

redacting elements of the photograph that identify it as an arrest photo –

e.g., the side view, a sign including an arrest number. 

to allow inspection of the photograph. SG §10-618(a). In many, if

not most instances, there will be no public interest justifying a

refusal to disclose a photograph. Indeed, as explained above, the

practice of taking mug shots began in anticipation that they would be

circulated to the public to help apprehend a fugitive. 

On occasion, however, there may be a valid basis for the

custodian to conclude that disclosure would be against the public

interest. The list of the several reasons for which an agency may

deny inspection of an investigative record to a “person in interest”

provides a checklist of possible reasons that might apply in particular

circumstances. See SG §10-618(f)(2). For example, among the

factors that the department might consider in making that

determination is whether, in the particular circumstances, disclosure

of a photograph of an individual’s past encounter with law

enforcement authorities would constitute an unwarranted invasion

of privacy of the individual photographed. Cf. SG §10-618(f)(2)(iii).

In most instances, there is unlikely to be any significant privacy

concern. In other instances involving past cases in which the

individual was acquitted or the charges were dropped, the privacy

interest will be stronger in light of the embarrassing circumstances

that the photograph depicts. In some cases, there may be a

legitimate concern that disclosure of a full mug shot related to a

pending case could affect the right of the individual to a fair trial or

impartial adjudication. Cf. SG §10-618(f)(2)(ii). In cases involving 32

an ongoing investigation, the disclosure of the photograph might

prejudice the investigation. Cf. SG §10-618(f)(2)(vi). In a particular

case, disclosure of the appearance of an arrested individual who

chose to cooperate with law enforcement authorities in an

undercover investigation might disclose the identity of a confidential

source (cf. SG §10-618(f)(2)(iv)), or endanger the life or physical

safety of an individual (cf. SG §10-618(f)(2)(vii)). 

IV

Conclusion

In our opinion, a mug shot in the custody of a police

department is not subject to the restrictions placed on dissemination
50 [92 Op. Att’y

of CHRI by State and federal law. Rather, it should be treated as an

investigatory record of the police department. Thus, a mug shot

should be disclosed by the department in response to a PIA request

unless the department determines that disclosure would be contrary

to the public interest. Given the increasing use of digital

photography and the potential for including digital photographs in

criminal history databases, the Legislature may wish to address

explicitly the status of mug shots under the Maryland CJIS statute.

Douglas F. Gansler

Attorney General

William R. Varga

Assistant Attorney General

Robert N. McDonald

Chief Counsel 

 Opinions and Advice