ARRESTED PERSONS ‑- RIGHTS OF PRIVACY ‑- POLICE PHOTOGRAPHS ‑- PUBLICATION VIA TELEVISION

ARRESTED PERSONS ‑- RIGHTS OF PRIVACY ‑- POLICE PHOTOGRAPHS ‑- PUBLICATION VIA TELEVISION

A municipal police department should not make police photographs of persons arrested for a felony available to television stations for transmission in connection with news programs prior to conviction unless such persons are fugitives from justice.

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                                                                   June 24, 1953

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County
Court House, 311 Grand Avenue
Bellingham, Washington                                                                                                                Cite as:  AGO 53-55 No. 71

Dear Sir:

            We have your letter of June 10, 1953, in which you propound the following question:

            May a television station properly demand, as a matter of right, that a municipal police department make available to it the pictures of all persons arrested for a felony for projection on its television screen in connection with news broadcasts?

            It is our conclusion that this question must be answered in the negative.

                                                                     ANALYSIS

            This problem involves a question which is still an open one in the State of Washington.  In our opinion there is a danger that the showing of a police photograph of a person accused of a crime, who is subsequently acquitted, may lay the groundwork for an action for damages in which the chief of police could be named as one of the defendants.  In such a case, the possible cause of action  [[Orig. Op. Page 2]] would be based on an invasion of the right of privacy.  The right of privacy has been defined as the right of an individual to be left alone, to live a life of seclusion or to be free from unwarranted publicity.  77 C.J.S. 396.  The ultimate question involved is the balancing of the individual's right of privacy against the legitimate public interest in the dissemination of news.  Unlike libel and slander cases, truth is no defense to the unauthorized invasion of one's right of privacy.  Barber v. Time, Inc., 159 S.W. (2d) 291.

            The preponderance of authority supports the view that there is an independent right called the right of privacy, the invasion of which gives rise to a cause of action.  41 Am.Jur. 927; 168 A.L.R. 449.  The American Law Institute's Restatement recognizes the existence of the legal right of privacy.  Restatement, Torts, Vol. 4, section 867.  In this jurisdiction our court has had but three occasions to discuss the existence of this cause of action.  Each time it has succeeded in disposing of the issues involved without deciding whether or not an invasion of the right of privacy states a cause of action.

            It is generally held that the mere taking and preservation by officers of the law of photographs for the purpose of identification of persons in custody on criminal charges do not constitute an unwarranted invasion of the right of privacy.  The view has been taken that inserting such a photograph in a rogues' gallery may constitute an invasion of such a right.  The publication of such a picture prior to conviction of an accused person, not a fugitive from justice, has been held to be such an invasion and subject to injunction.  State ex rel. Mavity v. Tyndall, (Ind.) 66 N.E. (2d) 755;  McGovern v. Van Riper, (N.J.) 43 A. (2d) 514.

            U.S. v. Kelly, 55 F. (2d), at page 70, contains the following statement:

            "* * * all United States attorneys and marshals are instructed by the Attorney General not to make public photographs, Bertillon measurements or fingerprints prior to trial, except when a prisoner becomes a fugitive from justice, and are required to destroy or to surrender to the defendant all such records after acquittal or when the prisoner is finally discharged without conviction.  There is therefore as careful provision as may be made to prevent the misuse of the records * * *."

            InHodgeman v. Olsen, 86 Wash. 615, the court held that the relation of the public to oneconvicted of crime is such as to forfeit whatever right of privacy  [[Orig. Op. Page 3]] the convict may have had with reference to the publication of his picture in various rogues' galleries, at least insofar as such publication was necessary for the protection of the public.  Many jurisdictions are committed to the rule that a suspect's picture may not be published in a rogues' gallery prior to conviction.  It would appear that the publication of a picture, which was privileged to be taken for the purpose of identification alone, through such a popular medium as television would be even more objectionable.

            We conclude that the police department is permitted to take photographs of all persons arrested for the purpose of identification.  After conviction they may be provided to police departments elsewhere.  The only time these photographs should be made available to the newspapers or television stations is to assist in the apprehension of a fugitive from justice.  To provide a television station with such pictures prior to a conviction is not only a misuse of these records but also an invitation to an action for damages.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY ENGEBRETSEN
Assistant Attorney General