The recent publication of Tiger Woods’ mugshot after his DWI arrest led to a number of articles discussing the privacy issues arising from the easy availability of mugshots online. The articles all start with the premise that it’s appropriate to place booking photos online, because they are public records. But is this true in New Jersey?

Certainly mugshots of people arrested in New Jersey are easy to find; a quick Google search reveals websites, like mugshots.com, containing such photos, as well as articles from NJ.com and other New Jersey news sites that include mugshots. I’m not sure how these photos made their way online, because it appears that mugshots may be exempt from public access under OPRA.

No New Jersey court has addressed the question of access to mugshots under OPRA. However, the GRC has ruled that OPRA exempts photos of people arrested from disclosure. Melton v. City of Camden, 2011-233 (2013). The GRC based its decision on Executive Order 69 (Whitman), which exempts “fingerprint cards, plates and photographs and similar criminal investigation records….”

In addition, there is a strong argument that mugshots are subject to OPRA’s protection of the reasonable expectation of privacy. New Jersey courts typically look to FOIA law to help interpret OPRA. Federal courts have established, under FOIA, that individuals have a privacy interest in these photos and therefore mugshots may not automatically be released to the public. See Detroit Free Press v. U.S. Dept. of Justice (6th Cir. 2016) (mugshots are “humiliating” photos that convey a message that the individual is guilty and damage the person’s reputation).