HB 4621 — Relating to the Division of Corrections and Rehabilitation posting booking photographs of an accused person

WESTHB4621 VIRGINIAHFAT LEGISLATUREFast REGULAR2-27Morgan SESSION3345 Delegate RevisedFast Committeemoved Substituteto foramend Housethe Billbill 4621by Bystriking Delegatesout Foster,the Garcia,title Kump, and Petittosubstituting [Originatingtherefor ina thenew Committeetitle, onto theread Judiciary;as follows:H.

ReportedB. on February 21, 2024] Rev CS for HB 4621 A BILL to amend and reenact §62-1-5 of the Code of West Virginia, 1931, as amended, relating to criminal procedure;

4621 -- “A BILL to amend and reenact §62-1-5 of the Code of West Virginia, 1931, as amended, relating to criminal procedure;

andproviding when a bookingdefinition photograph of an accused person may be made public or published by the West Virginia Division of Corrections and amends to provide that booking photographs are not public records and amends to provide that law enforcement agencies and the Division of Corrections and Rehabilitation shall not be held liable for release of booking photographsphotograph; and amends to provide that a defendant is entitled to a copy of their booking photograph and amends to require “remove for pay publications or websites” to remove a booking photograph and establishes civil liability for remove for pay publications or websites” when they do not remove.

Beproviding ita enacteddefinition byfor thenews-gathering Legislatureorganization; of West Virginia:

ARTICLEproviding 1.a definition for remove-for-pay publication or website;

PRELIMINARYand PROCEDURE.when a booking photograph of an accused person may be made public or published by the West Virginia Division of Corrections and Rehabilitation and amends to provide that booking photographs are not public records;

§62-1-5.and amends to provide that law enforcement agencies and the Division of Corrections and Rehabilitation shall not be held liable for release of booking photographs;

Sameand —amends Deliveryto provide that a defendant is entitled to a copy of prisonertheir beforebooking magistrate;photograph;

complaintand foramends personto arrestedprovide withoutthat warrant;any booking photograph that is published, released, or disseminated before a conviction shall include a disclaimer;

return; and amends to provide that law enforcement agencies and the Division of Corrections and Rehabilitation nor any law enforcement agency shall be held liable for good faith inadvertent release of booking photographs;

photographsand amends to require “remove for pay publications or websites” to remove a booking photosphotograph and whenestablishes theycivil mayliability befor publishedremove for pay publications or madewebsites” public;when they do not remove;

defendantand entitledamends tothat copythe Division of Corrections and Rehabilitation may disclose a booking photograph;photograph to appropriate law enforcement agency or prosecuting attorney’s office for investigation, prevention, or prosecution of a crime, or to safeguard the orderly operation of the correctional institution;

requirementsand relatingamends tothat a booking photographsphotograph whenmay authorizedalso be disclosed between law enforcement agencies for investigation, public safety, prevention, or prosecution of a crime, or to besafeguard released;the orderly operation of a correctional institution”;    AdoptedRejected 

no civil liability for law enforcement agencies or the Division of Corrections and Rehabilitation in specific instances;

requirements for removal and civil liability relating to remove for pay publications or websites.

(a)(1) An officer making an arrest under a warrant issued upon a complaint, or any person making an arrest without a warrant for an offense committed in his or her presence or as otherwise authorized by law, shall take the arrested person without unnecessary delay before a magistrate of the county where the arrest is made.

(2) If a person arrested without a warrant is brought before a magistrate, a complaint shall be filed forthwith in accordance with the requirements of rules of the Supreme Court of Appeals.

(3) An officer executing a warrant shall make return thereof to the magistrate before whom the defendant is brought.

1 Rev CS for HB 4621 (b)(1) Notwithstanding any other provision of this code to the contrary, if a person arrested without a warrant is brought before a magistrate prior to the filing of a complaint, a complaint shall be filed forthwith in accordance with the requirements of rules of the Supreme Court of Appeals, and the issuance of a warrant or a summons to appear is not required.

(2) When a person appears initially before a magistrate either in response to a summons or pursuant to an arrest with or without a warrant, the magistrate shall proceed in accordance with the requirements of the applicable provisions of the rules of the Supreme Court of Appeals.

(c) As used in this section, a “booking photograph” means a photograph or still, non-video image of an individual generated by the West Virginia Division of Corrections and Rehabilitation for identification purposes after arrest or while in the Division of Corrections and Rehabilitation’s custody.

(d) “News-gathering organization” means any of the following:

(A) A newspaper, news publication, or news source, or an employee thereof, printed or on an online or mobile platform, of current news and public interest, while operating as an employee as provided in this subsection, who can provide documentation of such employment with the newspaper, news publication, or news source;

or (B) A radio broadcast station, television broadcast station, cable television operator, wire service, or employee thereof while operating as an employee as provided in this subsection, who can provide documentation of such employment.

(e) "Remove-for-pay publication or website" means a publication, website, or social media presence that requires the payment of a fee or other valuable consideration in order to remove or delete a booking photograph from the publication or which utilizes the publication of booking photographs for memberships, profit, or to obtain advertising revenue:

Provided, That this subsection shall not apply to any news gathering organizations.

(f) Notwithstanding any other provision of this code to the contrary, photographs of a person for identification purposes taken by the Division of Corrections and Rehabilitation or any 2 Rev CS for HB 4621 other county or state jail facility upon booking into the facility are not public records and shall not be disclosed to the public pursuant to §29B-1-1 et seq.

of this code or published online.

These booking photographs shall not be published or disseminated to the public except:

(1) The individual is a fugitive, and the Division of Corrections and Rehabilitation determines that releasing or disseminating the booking photograph will assist in apprehending the individual.

(2) The Division of Corrections and Rehabilitation determines that the individual is an imminent threat to an individual or to public safety and determines that releasing or disseminating the booking photograph will assist in reducing or eliminating the threat.

(3) A judge of a court of competent jurisdiction orders the release or dissemination of the booking photograph based on a finding that the release or dissemination is in furtherance of a legitimate interest.

(4) The individual is convicted of or pleads guilty or nolo contendere to a crime, lesser crime, or lesser included offense in response to the same crime for which he was arrested.

(5) A judge of a court of competent jurisdiction orders the release or dissemination of the booking photograph based on a finding that a person has received verbal or physical threats of harm to that person’s immediate family by a defendant and that person is entitled to a copy of the booking photograph.

(g) Notwithstanding the provisions of this section, the Division of Corrections and Rehabilitation shall provide a copy of a booking photograph to the individual who is the subject of the booking photograph or to the counsel of record for the individual upon request.

(h) Any booking photograph that is published, released, or disseminated by a law enforcement officer or the Division of Corrections and Rehabilitation, except after the subject of the booking photograph being found guilty or pleading guilty or nolo contendere as provided in this section, shall include a disclaimer that states "all persons are presumed innocent until proven guilty".

3 Rev CS for HB 4621 (i) Neither the Division of Corrections and Rehabilitation nor any law enforcement agency, nor any person in the employ thereof, shall be subject to civil action or be held liable when the publication, release, or dissemination was made by mistake of fact or error, or was inadvertent and made in good faith.

(j) A remove-for-pay publication or website, or any other website, shall remove and destroy a booking photograph of an individual who submits a request for removal and destruction within seven calendar days from the day that the individual makes the request if the following conditions exist:

(1) The individual in the booking photograph was acquitted of the criminal charge or not prosecuted, or the individual had the criminal charge expunged, vacated, or pardoned.