AN ACT to regulate the dissemination and removal or destruction of booking photographs.

The General Assembly of North Carolina enacts:

SECTION 1.  Article 23 of Chapter 15A of the General Statutes is amended by adding a new section to read:

§ 15A‑502.01.  Prohibition on disclosing a booking photograph.

(a)        Definitions. – The following definitions apply in this section:

(1)        Booking photograph. – A photograph or image (i) of an individual who is alleged to have committed a crime, (ii) taken by law enforcement at the initial booking, and (iii) maintained for identification purposes.

(2)        Law enforcement purposes. – Law enforcement training or administrative purposes, suspect identification or apprehension, or to further an investigation.

(3)        Publish‑for‑pay publication. – A publication that requires the payment of a fee or other consideration in order to remove or delete a booking photograph from the publication.

(4)        Publish‑for‑pay website. – A website that requires the payment of a fee or other consideration in order to remove or delete a booking photograph from the website.

(b)        Not a Public Record. – A booking photograph is not a public record as defined by G.S. 132‑1.

(c)        Prohibition. – A law enforcement agency is prohibited from providing a copy of a booking photograph of a defendant pretrial in any format except as provided in subsection (d) of this section.

(d)       Disclosure. – A law enforcement agency may only provide a copy of a booking photograph of a defendant pretrial under one of the following circumstances:

(1)        The disclosure is necessary for law enforcement purposes.

(2)        To comply with discovery requirements.

(3)        For use in criminal proceedings in district court.

(4)        To comply with a court order.

(5)        To fulfill a request for a copy of the booking photograph, as provided in subsection (e) of this section.

(e)        Application. – A person requesting a copy of a booking photograph must apply to the head of the custodial law enforcement agency. The application must include a written request for the booking photograph, the date and approximate time of arrest, and the name of the person in the booking photograph sufficient to identify the booking photograph to which the application refers. The application must also include a sworn affidavit signed by the applicant and attesting, under penalty of perjury, that the booking photograph will not be placed in a publish‑for‑pay publication or posted to a publish‑for‑pay website.

(f)        Removal. – A publish‑for‑pay publication or publish‑for‑pay website shall remove and destroy a booking photograph of any individual who submits a request for removal and destruction, as provided in G.S. 15A‑152(a1). An entity that seeks to condition removal or destruction of a booking photograph, on the payment of any fee or other item of value, may constitute a criminal offense.

(g)        Civil Liability. – In addition to any other punishment or penalty available under the law, failure to remove and destroy a booking photograph in accordance with subsection (e) of this section may result in civil liability as provided in G.S. 15A‑152(c).

SECTION 2.  G.S. 15A‑152 reads as rewritten:

§ 15A‑152.  Civil liability for dissemination of certain criminal history information.information and booking photographs of defendant pretrial.

(a)        Duty to Delete Record – A private entity that holds itself out as being in the business of compiling and disseminating criminal history record information for compensation shall destroy and shall not disseminate any information in the possession of the entity with respect to which the entity has received a notice to delete the record in question. The private entity shall delete the record within the specified time and pursuant to the terms of the licensing agreement with the State agency. If the license does not specify a time for deletion, or if no license agreement exists between the private entity and state agency, the private entity shall delete the record within 10 business days of receiving notice to delete the record in question.

(a1)      Duty to Remove and Destroy Booking Photograph. – A publish‑for‑pay publication or publish‑for‑pay website, as defined by G.S. 15A‑502.01, shall remove and destroy any booking photograph within seven business days of receiving notice to remove the booking photograph if both of the following conditions are met:

(1)        There is no criminal conviction related to the arrest that generated the booking photograph.

(2)        The individual submits with the request written documentation that the criminal charge related to the arrest that generated the booking photograph resulted in a dismissal, acquittal, expunction, or that the grand jury returned no true bill on a proposed indictment.

(b)        Dissemination of Information. – Unless the entity is regulated by the federal Fair Credit Reporting, Act 15 U.S.C. § 1681, et seq. or the Gramm‑Leach‑Bliley Act 15 U.S.C. §§ 6801‑6809, a private entity described by subsection (a) of this section that is licensed to access a State agency's criminal history record database may disseminate that information only if, within the 90‑day period preceding the date of dissemination, the entity originally obtained the information or received the information as an updated record information to its database. The private entity must notify the State agency from which it receives the information of any other entity to which it subsequently provides a bulk extract of the information.

(c)        Civil Liability. – A private entity subject to the provisions of this section that disseminates information in violation of this section is liable for any damages that are sustained as a result of the violation by the person who is the subject of that information. A person who prevails in an action brought under this section is also entitled to recover court costs and reasonable attorneys' fees. This subsection does not apply to an entity regulated by and subject to the civil liability remedies of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., or the Gramm Leach‑Bliley Act, 15 U.S.C. 6801‑6809, et seq.

In addition to any other punishment or penalty available under the law, a publish‑for‑pay publication or publish‑for‑pay website that fails to remove and destroy a booking photograph in accordance with G.S. 15A‑502.01 is liable for any damages that are sustained as a result of the violation by the person who is the subject of the booking photograph to include, at a minimum, one hundred dollars ($100.00) per day for each day after the seven‑day deadline described in subsection (a1) of this section, on which the booking photograph is visible or publicly accessible in the publish‑for‑pay publication or the publish‑for‑pay website. A person who prevails in an action brought under this section is also entitled to recover court costs and reasonable attorneys' fees.

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SECTION 3.  G.S. 132‑1.4 reads as rewritten:

§ 132‑1.4.  Criminal investigations; intelligence information records; Innocence Inquiry Commission records.

(a)        Records of criminal investigations conducted by public law enforcement agencies, records of criminal intelligence information compiled by public law enforcement agencies, records of investigations conducted by the North Carolina Innocence Inquiry Commission, are not public records as defined by G.S. 132‑1. Records of criminal investigations conducted by public law enforcement agencies or records of criminal intelligence information may be released by order of a court of competent jurisdiction.

(b)        As used in this section:

(1)        Records of criminal investigations means all Records of criminal investigations. – All records or any information that pertains to a person or group of persons that is compiled by public law enforcement agencies for the purpose of attempting to prevent or solve violations of the law, including information derived from witnesses, laboratory tests, surveillance, investigators, confidential informants, photographs, and measurements. The term includes booking photographs, as defined in G.S. 15A‑502.01, of a defendant pretrial. The term also includes any records, worksheets, reports, or analyses prepared or conducted by the North Carolina State Crime Laboratory at the request of any public law enforcement agency in connection with a criminal investigation.

(2)        Records of criminal intelligence information means records Records of criminal intelligence information. – Records or information that pertain to a person or group of persons that is compiled by a public law enforcement agency in an effort to anticipate, prevent, or monitor possible violations of the law.

(3)        Public law enforcement agency means a Public law enforcement agency. – A municipal police department, a county police department, a sheriff's department, a company police agency commissioned by the Attorney General pursuant to G.S. 74E‑1, et seq., and any State or local agency, force, department, or unit responsible for investigating, preventing, or solving violations of the law.

(4)        Violations of the law means crimes Violations of the law. – Crimes and offenses that are prosecutable in the criminal courts in this State or the United States and infractions as defined in G.S. 14‑3.1.

(5)        Complaining witness means an Complaining witness. – An alleged victim or other person who reports a violation or apparent violation of the law to a public law enforcement agency.

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SECTION 4.  The Revisor of Statutes is authorized to renumber the subdivisions of G.S. 132‑1.4(b), as amended by Section 3 of this act, to ensure that the subdivisions are listed in alphabetical order and in a manner that reduces the current use of alphanumeric designations, to make conforming changes, and to reserve sufficient space to accommodate future additions to the statutory subsection.

SECTION 5.  Subsections (b) and (c) of G.S. 15A‑502.01, as enacted by Section 1 of this act, are effective when this act becomes law and apply to photographs taken on or after that date. The remainder of this act becomes effective October 1, 2021.