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January 27, 2016
Montana booking photos
By CHARLES S. JOHNSON For the Montana Freedom of Information Hotline
HELENA–Mug shots of criminal defendants are now public records in Montana that must be released to the news media.
In October, state District Court Judge Jon Oldenburg of Lewistown ordered a mug shot, or booking photo, released in Park County, saying it is public justice information.
Citing this ruling, Attorney General Tim Fox in December declined to issue an attorney general’s opinion sought by Gallatin County Attorney Marty Lambert on the issue.
Lambert had asked Fox to declare that booking photos are confidential criminal information, and they cannot be released to the media unless a demonstrated exception exists.
The public release of booking photos or mug shots has varied around the state. Some law-enforcement agencies have made these photos available when news media request them, while others have refused.
Mike Meloy, a Helena lawyer who represents the Montana Freedom of Information Hotline, said, the court decision and attorney general’s letter have settled the question that mug shots must be made available to the media.
“The issue has been resolved and that although we don’t have a Supreme Court opinion, the wisdom of Judge Oldenburg’s opinion and the attorney general’s letter confirming that ruling constitutes a statewide application of his ruling: that mug shots are public criminal justice information,” Meloy said.
Justin Post, managing editor of the Livingston Enterprise, which had pushed for the release of that mug shot and others, was pleased by the outcome, both locally and statewide.
“That sounds like a victory for every newspaper in Montana,” Post said. “So often, we’re trying to convince public officials that the documents we’re trying to access are public.
Having this not just from Judge Oldenburg but also from the Attorney General’s office will certainly make our job easier.”
On Oct. 27, Oldenburg ordered that the booking photo of Jovanne Lee Ashley be released “as public justice information” to the media. Ashley had been charged in Park County with attempted deliberate homicide and aggravated assault.
In his order, Oldenburg said that the daily jail occupancy roster is public criminal justice information under state law and thus can be released without restriction. Ashley also is a registered violent offender, he said.
“In balancing the public’s constitutional right to know with the defendant’s right of privacy, the court finds that the defendant’s expectation of privacy is greatly diminished as his name appears on the daily jail occupancy roster and the violent offender registry,” Oldenburg said.
The Livingston Enterprise first sought the mug shot from the sheriff’s office. After a number of discussions with Post, Park County Attorney Bruce Becker offered to file a motion asking the judge to approve the release of the photo to the newspaper. He did so in July.
Judge Oldenburg ordered the booking photo released.
Late last year, Attorney General Fox declined to issue an opinion sought by Gallatin County Attorney Lambert on the issue, citing Oldenburg’s ruling.
In September, Lambert had argued in letter to Fox that booking photos are confidential criminal justice information and criminal history record information and thus protected from being released to media unless a demonstrated exception applied.
Writing for Fox, assistant attorney general Patrick Risken told Lambert in a Dec. 9 letter that Oldenburg’s decision had answered both questions that the Gallatin County attorney sought from an attorney general’s opinion.
First, Risken said, Oldenburg’s analysis of state law was that mug shots aren’t confidential criminal justice information and criminal history record information.
“According to Judge Oldenburg a ‘booking photo’ is a public criminal justice information as part of the daily jail roster, the photo has no evidentiary value and the public’s constitutional right to know outweighs the defendant’s privacy exception,” Risken wrote Lambert. “Because booking photos are ‘public criminal information,’ the (court) order nullifies the bases of your second question.
Risken went on to say it is the policy of the Attorney General’s Office to decline to issue an opinion “when the matter is directly at issue in a pending litigation or when the issue has already been decided by a court of record, including District Courts.”
The Park County Sheriff’s Office has released any mug shots sought by the Livingston Enterprise since Oldenburg’s ruling, Post said.
“Sheriff Scott Hamilton said he would fulfill all future requests for booking photos,” Post said. “He’s come through on that promise. I commended him in an editorial for acting in the public’s best interest.”