Although it might be possible to argue the point, it seems to me that mug shots meet the definition of “criminal investigation records.”  Arguments to the contrary are that the photograph is not obtained for the purpose of solving or preventing crimes – after all, at that point, a crime has already been committed and presumptively solved. Perhaps the photographs are “jail records” or “booking records” that document the results of law enforcement efforts, rather than constituting records of the efforts themselves. These are reasonable points, but upon review of the statute and case law, I don’t find them to be persuasive.

Law enforcement agencies use mug shots to solve crimes in many ways following the initial booking of a person who is alleged to have committed a crime. First of all, the person photographed has not yet been convicted. The law enforcement agency may still have to strengthen its case. Law enforcement agencies may also use the photographs to identify witnesses to or collaborators in the alleged crime. Mug shots may serve as a deterrent to future criminal activity by the suspect and others, and may be used to prevent or solve a future crime committed by the same person.

A review of the whole statute also suggests that mug shots are a type of record that is within the scope of the exception. Subsection (c) of the statute lists information that is subject to public access. This list creates an exception to the criminal records exception. Mug shots are not on the list of information that must be released to the public, but that list includes types of information that are similar to mug shots. Subsection (c)(2), for example, includes the name, sex, age, address, and employment of a person arrested, charged, or indicted. This information seems akin to a photograph in the sense that it simply documents information about the person. David Lawrence notes in his book on North Carolina’s Public Records law that “the listing of investigative material that is public also offers assistance in determining the kinds of records that are excluded from public access by the statute.” He also includes mug shots as an example of records that have been held to be law enforcement records under comparable statutes in other states. See, Lawrence, Public Records Law For North Carolina Local Governments, p. 199. Since mug shots are similar to things that are listed as law enforcement records, but are not on the list of such records that must be made public, I conclude that they are law enforcement records that are within the exception and need not be made public.