In Gallatin County, mug shots of criminal offenders and suspects – including U.S. Rep. Greg Gianforte – are considered “confidential criminal justice information,” and therefore not public unless a judge allows it.
In most other Montana counties, authorities consider mug shots to be public record, and routinely make them available to the media.
Attorney General Tim Fox’s office and a state district judge also have weighed in on the question, in favor of public disclosure of mug shots.
But a bill before the Montana Legislature to define mug shots as a public record failed this year – and Gallatin County Attorney Marty Lambert says until there’s a definitive ruling from a statewide authority, mug shots or “booking photos” remain confidential information, under the law.
“As there is no express authority regarding the dissemination of booking photos … my approach has been to advise the sheriff to restrict dissemination unless a demonstrated exception applies,” he wrote in a 2015 letter to the attorney general.
The issue came to the fore last week, when Gianforte was booked and fingerprinted by Gallatin County authorities for the charge of misdemeanor assault, to which he pleaded guilty June 12.
Gianforte was cited May 24 after he threw Guardian reporter Ben Jacobs to the ground and started punching him, as Jacobs tried to question Gianforte about a GOP health-care bill before Congress.
Lambert told MTN News last week that Gianforte’s photo – like all booking photos in the county – is confidential criminal justice information, and therefore won’t be publicly released without a judge’s order.
MTN News and at least one other news organization have filed a request to release Gianforte’s booking photo, saying the public right to know supersedes Gianforte’s right to privacy. A state district judge will rule on the issue.
The broader issue has come before a judge before, when District Judge Jon Oldenburg of Lewistown ruled in October 2015 that a defendant’s booking photo is “public justice information” and should be released.
In a case involving a Livingston man charged with attempted deliberate homicide, Oldenburg said the photo “has no evidentiary value” and that the defendant’s expectation of privacy is “greatly diminished” because his name already appeared on the local jail roster, which is public, and because he was already on a violent offender registry.
A month before that ruling, Lambert had asked Fox for an attorney general’s opinion on whether booking photos are public information, and cited conflicting elements of the law.
Lambert noted that the law says booking photos are confidential criminal justice information, and that such information can’t be released without a judge saying there’s an exception.
Fox’s office didn’t reply to Lambert until several weeks after Oldenburg’s ruling – and indicated the ruling had settled the issue, in favor of disclosure, and therefore an official attorney general’s opinion wasn’t needed.
Media advocates hailed the Oldenburg ruling and the Fox reply as the final word of releasing mug shots.
But Lambert told MTN News Monday he doesn’t agree.
The Oldenburg ruling didn’t say it applied statewide, and concerned a person already in jail and on the violent offender registry, rather than someone who may be accused of a misdemeanor, and have a stronger claim to privacy rights, he said.
“It doesn’t address the issues,” Lambert said of the ruling.
State lawmakers also failed to clarify the issue this year, taking an unusual step to kill the requisite bill.
Republican Rep. Frank Garner of Kalispell introduced a bill based largely on the Oldenburg ruling, to say booking photos are public information. It had the support of law enforcement and media representatives.
Garner says they wanted to clarify the law, in the wake of the Oldenburg ruling.
Yet the Republican majority of the House Judiciary Committee changed the bill to say the opposite of its intent: That booking photos are confidential, unless a judge orders otherwise, the defendant agrees, or the defendant is convicted.
Garner told MTN News that because his bill’s intent had been completely changed, he asked the full House to kill it – and a majority did so, on a 55-45 vote on Feb. 3.