The issue presented in this case is whether booking photographs (mug shots) of persons arrested, charged with felonies, and awaiting trial constitute information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of the arrestees’ privacy under § 13(l)(a) of Michigan’s Freedom of Information Act. MCL 15.231 et seq.; MSA 4.1801(1) et seq. We affirm the decision of the circuit court and hold that nondisclosure of the booking photographs at issue in this case is not justified under § 13(l)(a).
FACTS
In early March, 1986, a Detroit Free Press newspaper reporter requested that the office of the Oakland County Sheriff release to her, or permit her to copy, booking photographs of Benjamin Len Bullock and Ronnie Mitchell, both of whom were
By letter dated March 26, 1986, an assistant Oakland County corporation counsel, acting for the Oakland County Sheriff, denied the Free Press request for the booking photographs, citing § 13(l)(a) and § 13(l)(b) of the Freedom of Information Act and MCL 28.243; MSA 4.463. 1 Counsel expressed concern for protecting taxpayers from litigation arising out of "unwarranted and inappropriate disclosure of private information.”
The Free Press, through its legal counsel, responded in an April 7, 1986, letter, emphasizing the public nature of criminal court proceedings. Counsel opined that the statutory requirement that a criminal file be returned to a person upon
Defendant sheriff persisted in his refusal to release the booking photographs. On May 8, 1986, the Free Press filed its verified complaint against the sheriff. An order to show cause was issued. At the May 19, 1986, hearing, defendant’s counsel agreed that the booking photographs were public records but argued that their disclosure would be an unreasonable and unwarranted violation of individual suspects’ rights of privacy. The court disagreed, ordering defendant to make available to plaintiff "for inspection and copying any and all public records in the possession or control of the Sheriff known as booking photos, including without limitation, booking photos of Benjamin Len Bullock and Ronnie Mitchell.” Defendant appeals.
THE FREEDOM OF INFORMATION ACT
Section 1 of the foia contains the following declaration of public policy:
It is the public policy of this state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process. [MCL 15.231(2); MSA 4.1801(1X2).]
Except as otherwise provided in § 13 of the foia, a person has a right to inspect, copy or receive copies of a public record of a public body. MCL 15.233(1); MSA 4.1801(3X1). In § 13, MCL 15.243; MSA 4.1801(13), the Legislature authorizes, but does not require, nondisclosure of certain public records. See
Tobin v Civil Service Comm,
THE PRIVACY EXEMPTION:
STATE EMPLOYEES ASS’N v DEP’T OF MANAGEMENT & BUDGET
In this case, defendant seeks to justify his denial of the Free Press request under § 13(l)(a) of the foia, the privacy exemption:
(1) A public body may exempt from disclosure as a public record under this act:
(a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy. [MCL 15.243(l)(a); MSA 4.1801(13)(l)(a).]
Six members of the Supreme Court recently
In
State Employees Ass’n,
Justice Cavanagh, in whose opinion Justices Levin and Archer concurred, found that the Legislature did not intend that a balancing of interests be made in evaluating applicability of the privacy exemption contained in the Michigan foia.
While neither balancing of interests nor consideration of purpose or identity is appropriate, the act requires a determination whether the release of the requested information would be a "clearly unwarranted invasion of an individual’s privacy.” The Legislature made no attempt to define the right of privacy. We are left to apply the principles of privacy developed under the common law and our constitution. The contours and limits are thus to be determined by the court, as the trier of fact, on a case-by-case basis in the tradition of the common law. Such an approach permits, and indeed requires, scrutiny of the particular facts of each case, to identify those in which ordinarily impersonal information takes on "an intensely personal character” justifying nondisclosure under the privacy exemption. [428 Mich 123 .]
Justice Brickley concurred in the result because he found that the addresses of state employees did not amount to "information of a personal nature” within the meaning of the privacy exemption.
Justice Boyle also concurred in the result, finding that the information sought was not of a personal nature and thus did not fall within § 13(l)(a). She also agreed that, when a request is initially made, the requester’s identity and the need or purpose for the information need not be provided. She wrote separately to express her view that, once it is determined that requested information is of a personal nature, applicability of § 13(l)(a) is determined by balancing "the intensely personal characteristics of the information sought . . . against the purpose for which the information is sought, the purposes for which it may be used, and the efficacy of restrictions upon disclosure where partial nondisclosure appears necessary.”
Dissenting, Chief Justice Riley adhered to her view, expressed in
UPGWA v Dep’t of State Police,
BOOKING PHOTOGRAPHS
Under any of the approaches of the majority Justices in State Employees Ass’n, we find that defendant’s nondisclosure of the booking photographs requested by plaintiff is not justified under § 13(l)(a). We first apply the threshold approach detailed in Justice Cavanagh’s opinion. Under that approach, common law and constitutional principles of privacy are applied to determine if an individual has a right to privacy in the requested information.
In Michigan, the right of privacy has long been recognized. See discussion in
Beaumont v Brown,
The common-law right of privacy is said to protect against four types of invasion of privacy.
" '1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
" '2. Public disclosure of embarrassing private facts about the plaintiff.
" '3. Publicity which places the plaintiff in a false light in the public eye.
" '4. Appropriation, for the defendant’s advantage, of the plaintiffs name or likeness.’ Prosser, Privacy, 48 Cal L Rev 383, 389 (1960).” Beaumont v Brown, 401 Mich 80 , 95, n 10;257 NW2d 522 (1977); see also 3 Restatement Torts, 2d, § 652A, p 376.
None of these branches of the right of privacy is implicated by making available the booking photographs sought by plaintiff in this case.
The elements of a cause of action under an "intrusion” theory are clearly not present under the instant circumstances. Under that theory, a person is subject to liability only when he or she has used an objectionable method to obtain secret and private information which the plaintiff has a right to keep private.
Tobin v Civil Service Comm, supra,
Under the second theory, liability is precluded unless the matter publicized is not of legitimate concern to the public; there is no liability for giving publicity to matters already of public record or otherwise open to the public eye.
Ledsinger v Burmeister,
f. Involuntary public ñgures. There are other individuals who have not sought publicity or consented to it, but through their own conduct or otherwise have become a legitimate subject of public interest. They have, in other words, become "news.” Those who commit crime or are accused of it may not only not seek publicity but may make every possible effort to avoid it, but they are nevertheless persons of public interest, concerning whom the public is entitled to be informed. Thesame is true as to those who are the victims of crime or are so unfortunate as to be present when it is committed, as well as those who are the victims of catastrophes or accidents or are involved in judicial proceedings or other events that attract public attention. These persons are regarded as properly subject to the public interest, and publishers are permitted to satisfy the curiosity of the public as to its heroes, leaders, villains and victims, and those who are closely associated with them. As in the case of the voluntary public figure, the authorized publicity is not limited to the event that itself arouses the public interest, and to some reasonable extent includes publicity given to facts about the individual that would otherwise be purely private. (See Comment g). Illustrations:
A is tried for murder and acquitted. During and immediately after the trial B Newspaper publishes daily reports of it, together with pictures and descriptions of A and accounts of his past history and daily life prior to the trial. This is not an invasion of A’s privacy.
g. News. Included within the scope of legitimate public concern are matters of the kind customarily regarded as "news.” To a considerable extent, in accordance with the mores of the community, the publishers and broadcasters have themselves defined the term, as a glance at any morning paper will confirm. Authorized publicity includes publications concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal and many other similar matters of genuine, even if more or less deplorable, popular appeal. [Emphasis added.]
We find that the booking photograph of a person
Under a "false light” theory of invasion of privacy, the false light in which the plaintiff was placed before the public must be highly offensive to a reasonable person, and the defendant must have known of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.
Early Detection Center, PC v New York Life Ins Co,
A and other police officers of a city maintain in the police department a "Rogues Gallery” of photographs, fingerprints and records of those convicted of crime. B is accused of robbery, arrested, fingerprinted and jailed. He is released when the accusation proves to be a matter of mistaken identity and another man is convicted of the crime. Although B never has been convicted of any crime, A insists, over B’s objection, in including B’s photograph and fingerprints in the Rogues Gallery. A has invaded the privacy of B._
Nor are we persuaded that the arrestees’ constitutional rights of privacy will be violated by the granting of plaintiffs request in this case. In
Paul v Davis,
While there is no "right of privacy” found in any specific guarantee of the Constitution, the Court has recognized that "zones of privacy” may be created by more specific constitutional guarantees and thereby impose limits upon government power. See Roe v Wade,410 US 113 , 152-153 [93 S Ct 705 , 726;35 L Ed 2d 147 , 176-178] (1973). Respondent’s case, however, comes within none of these areas. He does not seek to suppress evidence seized in the course of an unreasonable search. See Katz v United States,389 US 347 , 351 [88 S Ct 507 , 510-511;19 L Ed 2d 576 , 581] (1967); Terry v Ohio,392 US 1 , 8-9 [88 S Ct 1868 , 1872-1873;20 L Ed 2d 889 , 898] (1968). And our other "right of privacy” cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are "fundamental” or "implicit in the concept of ordered liberty” as described in Palko vConnecticut, 302 US 319 , 325 [58 S Ct 149 , 152;82 L Ed 288 , 292] (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection — matters relating to marriage, procreation, contraception, family relationships, and child, rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct.
Respondent’s claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be "private,” but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner. [424 US 712 -713;96 S Ct 1166 ;47 L Ed 2d 420 .]
Similarly, defendant presents no authority which suggests that disclosure in this case would violate rights guaranteed to the arrestees under the Michigan Constitution.
We conclude that the disclosure sought by plaintiff in this case would violate neither common law nor constitutional principles of privacy and that, using the approach outlined in Justice Cavanagh’s opinion in State Employees Ass% nondisclosure is not justified under § 13(l)(a).
We further find that the approach preferred by concurring Justices Brickley and Boyle does not compel a different result. The initial inquiry in any approach to issues arising under § 13(l)(a) is whether the information sought is "of a personal nature.” We find that the information sought in this case is not of such nature. According to plaintiff, Bullock and Mitchell had been arrested and
CONCLUSION
We find that the public records sought in this case do not contain information of a personal nature the public disclosure of which would constitute a clearly unwarranted invasion of an individual’s privacy. We thus affirm the decision of the circuit court. We emphasize that our decision is limited to the particular facts presented.
Affirmed. No costs, a public question being involved.
Notes
Defendant has abandoned any claim of exemption under § 13(l)(b) of the foia. MCL 15.243(lXb); MSA 4.1801(13)(l)(b). MCL 28.243; MSA 4.463 concerns, inter alia, the return of fingerprints, arrest cards and descriptions to arrestees who are released without charge or who are found not guilty.
See
Compare
Harbolt v Dep’t of State,
616 F2d 772 (CA 5, 1980), cert den