HELENA — Months after a district court judge ruled that the booking photo of a registered violent offender could be released as “public justice information,” attorneys are at odds about whether the ruling applies statewide.
The Montana attorney general’s office cited District Judge Jon Oldenburg’s October ruling in declining to issue an opinion on whether booking photos are protected as confidential criminal justice information.
Some counties in Montana routinely release booking photos to the media, while others refuse media requests to release the photos, saying they are confidential criminal justice information.
Gallatin County Attorney Marty Lambert sought the attorney general’s opinion on the matter in September at the request of Bozeman Daily Chronicle managing editor Nick Ehli on behalf of the Montana Newspaper Association. Lambert argued that booking photos should be confidential unless a judge orders them to be released, because they are not specifically listed as public information in state law.
The attorney general’s office in December declined to issue an opinion, saying Oldenberg considered the same arguments when he found Park County should release to the Livingston Enterprise the booking photo of Jovanne Lee Ashley.
“In balancing the public’s 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 wrote. Ashley was charged with attempted deliberate homicide and aggravated assault.
Montana Freedom of Information Hotline attorney Mike Meloy said Wednesday he believes that the attorney general’s decision against writing an opinion is an affirmation of Oldenberg’s decision and that booking photos are public records. “Unless the Montana Supreme Court rules otherwise, booking photos should be publicly accessible,” Meloy wrote in an email to The Associated Press.
Lambert noted that Oldenberg’s decision found the defendant’s privacy expectation was diminished, in part because his name appeared in the violent offender registry. He also noted the Oldenberg also found his booking photo had no evidentiary value.
Oldenberg’s decision does not address the law that requires that all copies of booking photos be returned at the request of someone who is never charged or is acquitted, Lambert said, adding that it would be nice if the Legislature clarified the issue.
In the meantime, Lambert said he will still require media outlets to file a motion asking a judge to rule, on an individual basis, whether a booking photo should be released. That process can take a week or more, by which time the defendant may have already appeared in court, where a photograph could be taken.
Meloy argues that people who have been arrested can’t expect their image to be private because it is “readily available” to witnesses, law enforcement, fellow inmates and to anyone who attends an initial court appearance.
Reporter Chuck Johnson first wrote about the attorney general’s decision for the Montana FOI Hotline.