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Northampton Police released this booking photo of Phillip Huckelberry Jacobsen on Tuesday after a determination by the state supervisor of records that it is a public record.

NORTHAMPTON - The state's public records chief has ruled that an arrest booking photo sought by the Gazette in May is a public record and should not have been withheld by the Northampton Police Department as protected information.

The Aug. 27 ruling by Supervisor of Records Alan N. Cote comes after the Gazette filed a public records appeal in June over the arrest booking photo, or mug shot, of Phillip Huckelberry Jacobsen of Shutesbury. It suggests most if not all arrest booking photos taken prior to the filing of formal criminal complaints are public records.

The Northampton Police Department denied the newspaper's initial request, arguing that Jacobsen's booking photo was protected under the Criminal Offender Records Information (CORI) Law and that its public disclosure would be an invasion of privacy and harmful to his reputation.

--See the ruling here

Northampton Police Capt. Joseph W. Koncas said the department finds Cote's decision flawed and plans to file a letter of protest within the next week. The department complied with the ruling and released Jacobsen's booking photo to the Gazette on Tuesday, though Koncas said the department would likely deny similar requests in the future. Cote's decision is final but can be challenged in Superior Court.

"We have some issues with their determination," Koncas said. "We disagree with it."

Jacobsen, 22, was arrested May 26 after allegedly beating and attempting to kill his former girlfriend at the Hampshire Heights housing complex. It was the third time he had been arrested in a month for physically assaulting the woman. His third arrest was the subject of a detailed news story at which time Jacobsen was being held without bail at the Hampshire County Jail and House of Correction.

State ruling

In his ruling, Cote wrote that for a record to be protected under CORI, it must be created after the initiation of criminal proceedings, which is the filing of a criminal complaint.

"This means that a photo may be CORI, but not all photos are CORI by default," he wrote. "Whereas the booking photo of Mr. Jacobsen was taken prior to the initiation of criminal proceedings, it is a public record and may not be withheld as CORI."

Northampton police argued in a June 8 letter denying release of Jacobsen's mug shot that booking photographs are "like fingerprints" and constitute protected criminal offender record information.

During the appeal process, the department provided the state supervisor of records' office with copies of slides presented by the Criminal History Systems Board indicating that a photograph that identifies an individual is a document that includes CORI.

"Booking photos, commonly referred to as 'mug shots,' are highly suggestive by their very nature. Their indiscriminate public disclosure, especially pre-adjudication, could be harmful to the reputation of an individual, as well as prejudicial to judicial proceedings," Koncas wrote to the Gazette at the time.

Cote's ruling states that the case does not conflict with the CORI training materials the Northampton Police Department sent to his office, "but it does illustrate that every record must be reviewed on a case-by-case basis to determine its status under the Public Records Law, as there are no blanket exemptions," he wrote.

A spokeswoman for the Criminal History Systems Board said Tuesday that it believes mug shots fall under CORI.

"The photo itself is CORI if it identifies a person," said Agapi Koulouris, deputy general counsel for the board.

Koncas said the Northampton Police Department's position is that criminal proceedings begin with the arrest of an individual, and not when a formal criminal complaint is filed, which is a departure from Cote's interpretation of criminal proceedings.

"When we make an arrest, we must have probable cause for that arrest," Koncas said. "That is truly the point when the criminal proceedings attach."

In his decision this week, Cote cited a November 2003 educational bulletin, which he disseminated after discovering what he described as a "troubling trend" in the police community involving access to police records. In that bulletin, he noted that the state's CORI law is "extremely misunderstood."

"Primarily, CORI was enacted to allow inmates to resume their lives after incarceration and rehabilitation. It was not enacted to stop the release of police records," he wrote at the time.

Other mugs released

Cote's ruling this week comes less than a month after a controversy erupted over the release and publication of the booking photo of former Big Dig chief Matthew J. Amorello. He was arrested Aug. 7 in Haverhill on charges of driving under the influence of alcohol and leaving the scene of property damage.

In his booking photo, Amorello's eyes were closed, giving the appearance that he may have been unconscious. His mug shot was filed in Haverhill District Court with the police report and a record of booking of his arrest. It was freely made available to the public, including a gaggle of news photographers, in the wake of his arrest.

Gretchen Putnam, managing editor of the Eagle-Tribune newspaper in Lawrence, said it is "extremely unusual" for Haverhill police to release a mug shot directly, but court officials and Eagle-Tribune reporter Michael LaBella said arrest booking photos like Amorello's are typically available in the district court files after a defendant's arraignment.

Nearby, the Lawrence Police Department, which serves a city of 72,000 people, has no qualms about releasing mug shots upon request.

"They just hand them out as soon as the arrest is made," Putnam said. "Sometimes they hand-deliver them."

Lawrence Police Chief John J. Romero said his department considers mug shots a public record. He said the Lawrence Police Department will withhold mug shots only under certain circumstances, such as when a victim or witness may have to later identify someone in a photo lineup, for example.

"It's something we've done in the department for years," Romero said.

Dan Crowley can be reached at dcrowley@gazettenet.com.