Governor Andrew Cuomo's proposal to restrict the release of mugshots and arrest records has proponents for an open government and journalists worried the law is too broad, infringing on first amendment rights and the public's right to know.

That proposal was in Cuomo's 2020 budget address, and according to his office, is meant to combat websites that upload mugshots then demand payment to remove them. This is something Cuomo has called an invasion of privacy and something that inhibits an individual's future employment prospects. 

The proposed law would not just restrict public access to photos, it would include arrest records, police reports, and booking information, things that are currently available under the Freedom of Information Law (FOIL). Under FOIL, government agencies are required to release information requested unless there is a valid reason for not disclosing the documents.

"Historically, it's been public. I've suggested many times, we don't have secret arrests in this country," says Robert Freeman, Executive Director of the New York State Committee On Open Government.

In a statement to Fox 40, Jason Conwall, a spokesperson for Cuomo, says "The public and media will still be able to access records and photos, as local law enforcement will continue to decide if there is a need to release photos and all court records are public records." It's that ability to pick and choose what information gets out that concerns Freeman.

"You know, there could be a friend of a politician or a cop or somebody... and you'd never find out necessarily that so and so was arrested unless you happen to be in the courtroom when so and so is arraigned or during that person's judicial proceeding," says Freeman.

As far as court records being public, David Donovan President of the New York State Broadcasters Association points out that those are not available right away when an incident occurs and if there's no release of arrest information, how would the public or the media know to go looking for court records for an individual? 

"We're concerned that it will have a chilling effect on freedom of the press," says Donovan. 

Donovan adds that knowing if someone has been arrested is the public's right. Not only that, but taxpayers also have a right to know what's going on in their police departments. 

"The public information involves police activity and it should remain a matter of public record," says Donovan.

Donovan says NYS Broadcasters have made their stance on this clear to both the governor and the legislature. While the issue of websites misusing mugshots is one he agrees needs to be fixed, Donovan says other states, such as California, have passed legislation addressing that particular problem without curtailing access to public information.

Below is the full statement from Cuomo's office on the issue.

This social justice proposal will help to curtail a nefarious practice that is tantamount to extortion of formerly incarcerated individuals, as well as innocent people. The digital age and proliferation of mugshot websites have created an internet shaming industry, and it has lasting effects on the individuals portrayed, including those whose arrests do not result in conviction. An idle internet search can yield booking photos that indefinitely damage an individual’s employment and personal prospects. To be clear: The public and media will still be able to access records and photos, as local law enforcement will continue to decide if there is a need to release photos and all court records are public records. To the extent any modifications are necessary to provide additional clarity, we plan to discuss and engage with the Legislature during the next few months.

 – Jason Conwall, spokesman for Governor Andrew Cuomo