Cook County judge weighs whether cops’ photos are public record

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The following article was reported and written by Injustice Watch staff members Talia Soglin,  Radhika Upadhye, Julian Gonzalez, Maia Rosenfeld and Isaac Slevin. 

An attorney for the Chicago Police Department told a Cook County Circuit judge on Friday that official identification photographs of police officers should not be considered public documents, saying their release could infringe on the officers’ privacy and potentially endanger them.

The arguments came in response to a lawsuit filed by Rob Warden, co-director of Injustice Watch, challenging the city’s position that it was not required to release the photographs under the state Freedom of Information law.

In response to a request for photographs of nine officers, filed by Warden in February 2016, the Chicago Police Department responded the following month, “It is CPD’s concern that these photos can be used for retaliatory and harassing purposes against the officer himself or against his family.” The Chicago Police Department declined to comment on details of the case, as it is currently under litigation.

Several of the officers had been mentioned in Injustice Watch articles around the time that Warden made the request.

During the hearing, Locke Bowman, executive director of the Roderick and Solange MacArthur Justice Center, who represented Warden,  framed the issue as one of public accountability. He said police officers are public officials working “at taxpayer expense, in a highly visible capacity,” and argued that access to their photographs is important for protecting journalistic endeavors that hold government accountable.

Bowman said the case could set an important precedent, striking down the department’s “blanket policy” of refusing to fulfill such requests. If Circuit Judge Sanjay Tailor rules that the Chicago Police Department must release the photographs of the nine officers in this case, Bowman believes the decision would “get a foot in the door in terms of future requests that might be made.”

Bowman said photographs should be included in public records not only because “a picture is worth a thousand words,” but because the inclusion of images allows for more effective dissemination of information. If photographs of officers would promote reader interest in a journalistic piece about police misconduct, Bowman argued, then the public availability of those photographs is in the public interest.

In arguments before Judge Tailor on Friday, assistant corporation counsel Philip Santell contended, “Not releasing anyone’s photos via FOIA is a way for CPD to protect these officers.”

According to Santell, the release of photographs constituted an invasion of officers’ privacy, potentially resulting in a public database of police officers’ photographs that could be searchable with facial recognition technology and used by criminal offenders to identify undercover cops.

Although he admitted he did not know the intricacies of how such a database would work, Santell noted that this technology is becoming increasingly pervasive in everyday life. He pointed to a database used to identify Taylor Swift “stalkers” at the singer’s concerts, as well as the prevalence of facial recognition technology in cell phones.

Santell also raised concerns that such a database, and the release of police photographs under FOIA in general, might limit police officers’ future ability to work on sensitive assignments, including working undercover. According to Santell, the Chicago Police Department asks for its officers’ consent before posting their photographs online. He said this gives officers an opportunity to consider what future career paths they may want to take before their photograph is made public, potentially precluding them from sensitive assignments.

Santell argued that a possible “undercover exemption” for FOIA requests — which Bowman conceded might be reasonable — would be insufficient, because a person requesting a photograph would know that an officer was working on a sensitive assignment if the request was denied. Santell described the issue of fulfilling such requests as “all or nothing.” “Either you protect the officers, or you don’t,” he said.

Bowman noted that in Tennessee, the photographs of police officers are treated as public unless an officer is undercover and revealing their identity would threaten the safety of them or their family.  Bowman also noted there was no evidence that any of the nine officers named in Warden’s request are working undercover or seek to do so.

Bowman shrugged off the suggestion that a database of police officer photographs searchable by facial recognition technology is a valid concern. He said it is not reasonable to hypothesize a “grand conspiracy” of journalists to create such a database.

Bowman described what he called a “screaming question” — why there is a disparity in the Chicago Police Department’s practices of publicizing officers’ photographs. The department frequently posts pictures of officers on its social media accounts when they “get awards for being good cops, when they’re engaged in happy-making civic activities,” he said in an interview after the hearing, “while at the same time refusing FOIA requests like the one Rob Warden made here.”

Bowman asked: “Is that disparity something that exists because the police want to do everything they can to bury the stories about police misconduct?”