In a recent post, I noted that it’s not clear whether mugshots are public records under OPRA–although these photos are routinely posted online, the GRC has held them to be exempt under OPRA, and the federal courts have held that privacy precludes their release under FOIA.

The other day the Governor signed legislation that makes the answer to this question even less clear. The new statute seeks to stop what it calls the “extortionate” practice of websites that publish mugshots and charge people for removing them from the internet. Specifically, the legislation prohibits soliciting a “pecuniary benefit” in exchange for refraining from disclosing criminal history information about a person, including a mugshot.

Although this statute doesn’t mention OPRA, it states that “the law authorizes public access” to this type of information. But the statement that mugshots are public is contradicted by other language in the statute, which recognizes that privacy rights are affected by publication of mugshots and that people should not have to pay for removal from the internet of this embarrassing information.

This new statute puts OPRA custodians in a difficult position. They are faced with having to reconcile the legislative indications that mugshots are both publicly accessible and subject to the expectation of privacy.