Can the public get a mug shot from a Maryland police department under the Public Information Act?

Plain-English summary

A Maryland newspaper wanted access to "mug shots," the booking photographs the Anne Arundel County Police Department takes of people it arrests. The County Office of Law had advised the department that a mug shot is "criminal history record information" (CHRI), a legally protected category that police may share only for narrow purposes, so the photos could not be handed to the press. The county executive asked the Attorney General to settle the question.

The Attorney General disagreed with the county's reading. He concluded that a mug shot in a police department's files is not CHRI. The laws that protect CHRI are aimed at the record of a person's encounters with the criminal justice system, arrests, charges, and dispositions, not at a picture of the person's face. Neither the state CJIS statute nor the federal regulations require police to send booking photos to the central repository, which the opinion treated as strong evidence that photos were never meant to be swept into the protected category. On top of that, the CJIS statute expressly carves investigatory files out of CHRI, and mug shots have always been an investigative tool, used in photo lineups, wanted posters, and at trial.

Because a mug shot is an investigatory record rather than CHRI, the opinion placed it under the Public Information Act's discretionary law-enforcement exception (SG §10-618(f)) instead of an absolute bar. That exception lets a custodian withhold a record only when the custodian concludes that releasing it would be "contrary to the public interest." The bottom line: a Maryland police department should release a mug shot in response to a PIA request unless it can point to a specific reason, such as protecting a fair trial, an ongoing investigation, or an unusual privacy interest, that makes disclosure contrary to the public interest.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Is a mug shot a public record in Maryland?
Yes. The opinion noted that the Public Information Act's definition of "public record" expressly includes a photograph, so a booking photo taken or held by a police department is a public record. Being a public record only starts the analysis; the question is whether an exception keeps it from release.

Did the Attorney General treat a mug shot as protected "criminal history record information"?
No. The opinion concluded that a mug shot in a police department's possession is not CHRI. It reasoned that the CJIS statute and federal regulations protect information about a person's history with the criminal justice system, that neither requires photographs to be submitted to the central repository, and that the statute excludes investigatory files, which is what mug shots are.

So could a police department be required to release a mug shot?
The opinion concluded a mug shot should be disclosed in response to a PIA request unless the custodian determines that disclosure would be "contrary to the public interest." It is treated as an investigatory record under SG §10-618(f), which is a discretionary exception, not an absolute one, so release was the default and withholding was the exception the department had to justify.

What reasons could let a department withhold a mug shot?
The opinion listed the harms named in SG §10-618(f)(2) as a checklist a custodian could draw on: interfering with a law enforcement proceeding, depriving someone of a fair trial, an unwarranted invasion of personal privacy (stronger where charges were dropped or the person was acquitted), disclosing a confidential source or an investigative technique, prejudicing an investigation, or endangering someone's safety.

Does it matter whether the case is still pending or already over?
The opinion drew on two federal FOIA cases that split on this. The Sixth Circuit (Detroit Free Press) held that releasing mug shots of defendants awaiting trial whose names were already public did not invade their privacy, while a Louisiana federal court (Times Picayune) found a stronger privacy interest where the criminal proceeding was complete. The Maryland opinion used both to show that timing and circumstances affect the public-interest balance a custodian must weigh.

Background and statutory framework

Access to government records in Maryland runs through the Public Information Act (PIA), codified at State Government Article ("SG") §10-611 et seq. The PIA gives the public a broad right to inspect public records, and it lists a photograph among the many forms a "public record" can take (SG §10-611(g)). Not every public record is open, though. The PIA defers to "other law" that forbids disclosure (SG §10-615), sets out mandatory exceptions, and gives custodians discretion to withhold certain records, including law-enforcement investigatory records, when disclosure "would be contrary to the public interest" (SG §10-618).

Two of those exceptions could plausibly reach a mug shot. If a mug shot were CHRI, the state Criminal Justice Information System statute (Criminal Procedure Article, "CP," §10-201 et seq.) and the related federal law and regulations (28 CFR Part 20; 42 U.S.C. §3789g) would sharply limit its release, funneling through SG §10-615's "other law" bar. If instead a mug shot is an investigatory record, the discretionary law-enforcement exception at SG §10-618(f) applies. The opinion worked through both.

On the CHRI question, the opinion concluded mug shots fall outside the definition. CHRI is "data ... collected by a criminal justice unit about a person and that pertain to a reportable event" (CP §10-201(d)(1)); an arrest is a reportable event (CP §10-215(a)(2)). But the statute and federal regulations focus on the identifiable descriptions and notations of arrests and their dispositions (28 CFR §20.3(d)), and the opinion read that as the person's law-enforcement history, not a photograph of the face. The CJIS statute names fingerprints as the key identifying component it protects and requires, yet says nothing about submitting photographs to the central repository. The opinion took that silence as a signal that photos were not meant to be CHRI, and it pointed to a Virginia AG opinion, a Texas AG opinion, and a California appellate decision (People v. McCloud) reaching the same reading in their states. Independently, the CJIS statute excludes "data contained in intelligence or investigatory files or police work product records used only in police investigations" (CP §10-201(d)(3)(i)), and mug shots have long served exactly that investigative role.

Having placed mug shots under the investigatory-records exception, the opinion turned to how much protection that offered. SG §10-618(f) is discretionary: a custodian may withhold an investigatory record only after concluding that release would be contrary to the public interest, and the statute lists specific harms (SG §10-618(f)(2)) that guide that judgment. The Maryland Court of Special Appeals had touched the issue in Pemberton v. Bethlehem Steel Corp., treating a mug shot as a public record open to inspection without definitively resolving the exception. Because the PIA's law-enforcement exception was modeled on FOIA Exemption 7(C) (5 U.S.C. §552(b)(7)(C)), the opinion looked to federal case law, where Detroit Free Press and Times Picayune reached different results on the privacy balance depending on whether the underlying case was pending or concluded. The opinion's synthesis: a mug shot is presumptively disclosable, but the custodian retains discretion to withhold it in the specific circumstances, pending trial, dropped charges, an ongoing investigation, a genuine safety or privacy concern, where a concrete public-interest reason supports non-disclosure. It closed by suggesting the Legislature might address the status of mug shots directly, especially as digital booking photos become part of centralized record systems.

Citations and references

Statutes and regulations:
- SG §10-611(g), Public Information Act definition of "public record," which includes a photograph
- SG §10-615, PIA deference to "other law" barring disclosure
- SG §10-618(a) and (f), discretionary law-enforcement / investigatory-records exception and its "contrary to the public interest" standard
- CP §10-201 et seq., Maryland Criminal Justice Information System statute
- CP §10-201(d)(1), definition of criminal history record information
- CP §10-201(d)(3)(i), exclusion of investigatory files from CHRI
- CP §10-215(a)(2), arrest as a reportable event
- CP §10-219(a), general restriction on dissemination of CHRI
- 28 CFR §20.3(d), federal definition of criminal history record information
- 28 CFR §20.20(b)(1) and (2), federal exclusions for wanted posters and police blotters
- 28 CFR §20.21(a), requirement to query the central repository before dissemination
- 28 CFR §50.2(b), Department of Justice policy on releasing photographs of defendants
- 5 U.S.C. §552(b)(7)(C), FOIA Exemption 7(C) on law-enforcement records and personal privacy
- 42 U.S.C. §3789g(b), federal conditions on state CHRI systems
- COMAR 12.15.01.10A, DPSCS regulation restricting dissemination of CHRI

Cases:
- Downs v. Swann, 111 Md. 53, 57-58, 73 A. 653 (1909), Maryland Court of Appeals
- Pemberton v. Bethlehem Steel Corp., 66 Md. App. 133, 168, 502 A.2d 1101 (1986), Maryland Court of Special Appeals
- Office of the Attorney General v. Gallagher, 359 Md. 341, 753 A.2d 1036 (2000), Maryland Court of Appeals
- People v. McCloud, 146 Cal. App. 3d 180, 182-83, 194 Cal. Rptr. 75 (Ct.App. 1983), California Court of Appeal
- Straughn v. State, 297 Md. 329, 333-36, 465 A.2d 1166 (1983), Maryland Court of Appeals
- Faulk v. State's Attorney for Harford County, 299 Md. 493, 506, 474 A.2d 880 (1984), Maryland Court of Appeals
- Detroit Free Press, Inc. v. Department of Justice, 73 F.3d 93 (6th Cir. 1996), federal appeals court
- Times Picayune Publishing Corp. v. United States Department of Justice, 37 F. Supp.2d 472 (E.D. La. 1999), federal district court
- United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 756 (1989), U.S. Supreme Court

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2007/92oag26.pdf

Original opinion text

ARREST

C RIMINAL R ECORDS – P UBLIC I NFORMATION A CT – M UG S HOT IN
P OSSESSION OF P OLICE D EPARTMENT IS N OT “C RIMINAL
H ISTORY R ECORD INFORMATION” B UT S HOULD B E T REATED
AS INVESTIGATORY R ECORD S UBJECT TO I NSPECTION U NDER
THE P UBLIC I NFORMATION A CT

                        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 th ed. 2004). The practice of taking
photographs of arrested individuals began in the early part of the 20 th

century as police departments adopted the Bertillon system of
criminal identification. See Downs v. Swann, 111 Md. 53, 57-58, 73
A. 653 (1909).1 The rationale for preserving a record of the
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.).

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

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.

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.2 The Police Department requested
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

   2
     The newspaper supported its position that mug shots should be

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).
3
The Maryland-Delaware-D.C Press Association elaborated on its
position in a letter to this Office. Letter from Alice Neff Lucan, Esquire,
to Assistant Attorney General William R. Varga (August 21, 2006).

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.4 Office of the Attorney
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 5 of the record believes that its
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

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

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

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

   6
      The question posed to us concerned booking photographs of adult

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).
7
In 2005, Maryland joined the National Crime Prevention and
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...)

      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).8 The phrase “criminal justice agency” includes the courts
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

      7
     (...continued)

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).
8
The term does not include “identification information such as
fingerprint records if such information does not indicate the individual’s
involvement with the criminal justice system.” 28 CFR §20.3(d).
9
Federal law requires the Attorney General of the United States to
“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...)

 The regulations related to state record systems apply to any state

or local agency that collects, stores, or disseminates CHRI.10 28
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 up-
to-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 11 – the regulations

   9
     (...continued)

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.
10
The regulations apply to any agency whose collection, storage,
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).
11
“Nonconviction data” is defined as follows:

         ... 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...)

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”

   11
        (...continued)
           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).

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).12 Furthermore, the regulations do not prohibit
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

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

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).
13
The regulation reads:

                 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.

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 §10-213.14 The General Assembly accorded the Secretary of
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).15 The Secretary has
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 department16 – must report CHRI to the CJIS Central
Repository according to specified time tables and procedures. CP
§10-214. The Secretary of DPSCS specifies “content, format, and

      14
     The statute also created the Criminal Justice Information

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.
15
The statute also authorizes the Court of Appeals to promulgate
similar rules for the judicial branch. The Court has adopted rules
concerning the transmittal of CHRI by the 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.
16
“Criminal justice unit” is defined in some detail in CP §10-
201(f).

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.17 Included on the list
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.

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

Secretary and the Court to specify reporting of particular events by
particular units. CP §10-215(b).

 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.18 The regulations set forth in some detail the
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.19 Nor have

      18
       Subject to an exception concerning pending criminal

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.
19
Some state statutes governing CHRI make clear that mug shots
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 Maryland courts explicitly considered whether such photographs
are CHRI.20 In our view, they are not.

 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 decision-
making.” 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.21 Pursuant to CP §10-221(b)(1)

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

not CHRI when it asserted in Pemberton that such photographs are not
covered by SG §10-615, the part of the 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.
21
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).

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.22 Nor is any
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:

   22
      For example, State Law requires that a DNA sample be collected

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).

             The legislative omission was patently
        intentional, for if it were not so, criminal
        investigation would become well nigh
        im possible, 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.23 The Legislature may want to consider
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, that statute 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.

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

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.

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 extra-
judicial 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);24 see also Pemberton
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

      24
       The annotation notes that mug shots are generally used for

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.

                  (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 25 – only if disclosure of the record would
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

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

detail in SG §10-611(e).

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 26 and
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

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

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.

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 non-
disclosure.27

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

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).

        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).28 When requests have been made for
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.

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

Justice ... should not make available photographs of a defendant unless a
law enforcement function is served thereby.” 28 CFR §50.2(b)(7).

5 U.S.C. §552(b)(7)(C).29 Two federal courts have assessed the
merits of that argument and have reached different results.

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

(6 th Cir. 1996), a newspaper sought the release of mug shots of eight
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.” 30 Id. (emphasis added). The Court

   29
      In permitting an agency to withhold records if production of

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).
30
An intermediate appellate court in Michigan reached a similar
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...)

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 was taken 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

   30
     (...continued)

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).

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).31 If the
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”

   31
       Attorneys General in other states have reached similar

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

   32
       The possible adverse effect could be eliminated or minimized by

redacting elements of the photograph that identify it as an arrest photo –
e.g., the side view, a sign including an arrest number.

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