Mug Shots and the FOIA: Weighing the Public’s Interest in Disclosure Against the Individual’s Right to Privacy in the age of the Internet

Emily T. Cecconi, KLJ Staff Editor^[1]

On July 14, 2016, the U.S Court of Appeals for the Sixth Circuit, sitting en banc in Detroit Free Press v. United States Department of Justice (Free Press II), overturned a twenty-year old precedent and restricted the public’s access to mug shots of federal criminal defendants.^[2] More specifically, the court concluded that individuals have a sufficient privacy interest in their booking photos to preclude their release under the Freedom of Information Act (FOIA).^[3] Displeased with this dramatic 9-7 split decision, the Detroit Free Press has filed a petition with the Supreme Court urging the Justices to reverse the Sixth Circuit’s departure from earlier precedent.^[4]

The FOIA is a federal statute that establishes the public’s right to obtain information from federal government agencies.^[5] Since its enactment in 1966, the FOIA has served as a powerful tool used by professional reporters and journalists to investigate “what the government is up to.”^[6] However, the FOIA is not without limitations. Under exemption 7(c), federal agencies are permitted to withhold disclosure of “information complied for law enforcement purposes” when producing such records “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”^[7] The core issue of the Sixth Circuit’s decision is whether booking photos constitute a privacy interest that is sufficient to fall under the 7(c) exception.

In 1966, in Detroit Free Press v. United States Department of Justice (Free Press I), the Sixth Circuit held that “no privacy rights are implicated” by releasing booking photographs in ongoing criminal proceedings in which the names of the defendants have already been released and the defendants have appeared in open court.^[8] In 2013, after four Michigan police officers were arrested for bribery and drug conspiracy, the Detroit Free Press requested the officers’ booking photos.^[9] The request was denied pursuant to exemption 7(c) of the FOIA.^[10] Reversing the 1996 decision, Free Press II held that individuals have a non-trivial privacy interest in their booking photos that is sufficient to justify exemption from the FOIA.^[11] Writing for the majority, Judge Cook stated that the privacy protected under exemption 7(c) encompassed “embarrassing and humiliating facts -- particularly those connecting individuals to criminality.”^[12] Judge Cook explained that booking photos qualified for the exception because they are “snapped in the vulnerable and embarrassing moments immediately after an individual is accused, taken into custody, and deprived of most liberties.”^[13] The majority also noted that these photographs convey such a strong connotation of the defendant’s guilt that they are often excluded from criminal trials.^[14]To distinguish its decision from earlier precedent, the court also emphasized the lasting consequences that booking photos have on an individual’s life due to their publication on the internet. The majority of the court reasoned that the logic of earlier cases was no longer persuasive because, in the past, “mug shots appeared on television or in a newspaper and then, for all practical purposes, disappeared.”^[15] While today, “an idle internet search reveals the same booking photo that once would have required a trip to the local library’s microfiche collection.”^[16] In coming to this conclusion, the majority relied heavily on the presence of “mug-shot websites” which collect and display booking photographs from decades-old arrests and solicit payment for their removal from the internet.^[17]The dissent first concluded that there was no privacy right implicated by releasing booking photos of individuals involved in ongoing criminal proceedings. The dissent argued that booking photos do not fall within the historical notion of privacy that Congress contemplated when enacting exemption 7(c) while further noting that the FOIA was a statute “dedicated to open government.”^[18] Writing for the dissent, Judge Boggs, argued that the majority failed to distinguish booking photographs from other information, such as arrests and indictments, connecting defendants to criminality that becomes public at trial.^[19] Refuting the majorities reliance upon the internet, the dissent made sure to emphasize that this information may also easily turn up in an “idle internet search.”^[20] Secondly, the dissent argued that the public’s interest in disclosure outweighed any privacy interest a defendant may have in a booking photo. Justice Boggs proposed several public interests such as avoiding cases of mistaken identity, revealing what populations the government prosecutes, and holding law enforcement accountable for pre-arrest uses of excessive force.^[21] Allowing the department of justice to decide whether to release booking photos on a case-by-case basis would, according to Justice Boggs, allow the government to selectively shield itself from public scrutiny.^[22]The Sixth Circuit decision does not mean that federal booking photos will never be released. Instead, it leaves open the possibility that booking photos may be released on a case-by-case basis, such as when police abuse has occurred or in cases of unusual public interest.^[23] However, the opinion does suggest that the conventional view in the United States that freedom of information should trump privacy concerns is not strictly the case.^[1] J.D. Expected May 2018.^[2] Josh Gerstein, Court Ends Routine Access to Federal Mugshots, Politico (July 7, 2016), http://www.politico.com/blogs/under-the-radar/2016/07/mugshots-federal-criminal-suspects-225546.^[3] Id.^[4] Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit at 2, Detroit Free Press v. United States Department of Justice, 829 F.3d 478 (6th Cir. 2016) (No. 16-706).^[5] Erin E. Rhinehart, Sixth Circuit Overrules 20-Year-Old Precedent, Ohio State Bar Association (July 19, 2016), https://www.ohiobar.org/NewsAndPublications/News/OSBANews/Pages/Sixth-Circuit-overrules-20-year-old-precedent-Federal-booking-photos-largely-exempt-under-FOIA.aspx.^[6] Detroit Free Press v. United States Department of Justice, Harvard Law Review (Jan. 5 2017), http://harvardlawreview.org/2017/01/detroit-free-press-inc-v-united-states-department-of-justice/.^[7] 5 U.S.C. § 552 (b)(7).^[8] Detroit Free Press, Inc v. U. S. Dep’t of Justice, 73 F. 3d 93, 97 (6th Cir. 1996).^[9] Detroit Free Press, Inc v. U.S. Dep’t of Justice, 829 F.3d 478, 481 (6th Cir. 2016).^[10] Id. at 481-83.^[11] Id. at 480.^[12] Id. at 482.^[13] Id.^[14] Id. ^[15] Id.^[16] Id.^[17] Id. at 482-83.^[18] Id. at 487-90.^[19] Id. at 491.^[20] Id.^[21] Id. at 492-93.^[22] Id. at 494.^[23] Gerstein, supra note 1.*Featured image by the Taos, New Mexico Police Department