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Divided En Banc Sixth Circuit Blocks Release of Federal Mug Shots

by Derek Gilna

In a 9-7 decision, the en banc Sixth Circuit blocked the release of mug shots of federal criminal defendants, finding that the Internet had caused individuals to be “haunted” by Freedom of Information Act (FOIA) requests that resulted in their booking photos being posted online. Judge Deborah Cook, who wrote the majority opinion, reversed a 1996 decision that found criminal defendants lacked a privacy interest in their mug shots.

According to the Court of Appeals, “in 1996, this court could not have known or expected that a booking photo could haunt the depicted individual for decades. Experience has taught us otherwise. As the Tenth and Eleventh Circuits recognize, individuals have a privacy interest in preventing disclosure of their booking photos.”

That earlier case, Detroit Free Press v. U.S. Department of Justice, 73 F.3d 93 (6th Cir. 1996), designated “Free Press I,” had been contradicted by contrary rulings in other circuits, which focused on the technological changes that had occurred over the past twenty years. In its most recent suit filed against the Justice Department, the Detroit Free Press again argued that criminal defendants could not block access to their mug shots after they had been arrested or indicted.

The newspaper was seeking the booking photos of four police officers in Michigan who were charged with bribery and drug conspiracy. Under FOIA, government agencies may assert various exemptions to prevent disclosure of requested information, and the U.S. Marshals Service declined to produce the booking photos, prompting the Free Press’ lawsuit.

In reaching its decision, the Sixth Circuit noted that FOIA exemption 7(C) “prevents disclosure when: (1) the information was compiled for law enforcement purposes and (2) the disclosure ‘could reasonably be expected to constitute an unwarranted invasion of personal privacy.’ 5 U.S.C. § 552(b)(7)(C),” explaining that the Supreme Court required that the 7(C) privacy interest “‘must be understood ... in light of the consequences that would follow’ from unlimited disclosure.”

The appellate court rejected the newspaper’s argument that FOIA required disclosure of booking photos, with Judge Cook acknowledging that while there might be a public interest in receiving information such as mug shots, a “case-by-case balancing” of the competing public and private interests was necessary.

Judge Boggs, writing for the dissent, disagreed, stating, “An individual who has already been indicted, and who has already appeared in open court, has no cognizable privacy interest in his booking photograph because neither he nor society expects that it will remain hidden from public view.” See: Detroit Free Press v. U.S. Dept. of Justice, 829 F.3d 478 (6th Cir. 2016).

Previously, the Sixth Circuit was the only circuit court where booking photos of federal criminal defendants could be obtained from the U.S. Marshals Service through FOIA requests, based on Free Press I. Thus, most news media organizations filed FOIA requests for mug shots of federal defendants in a state within the Sixth Circuit, to take advantage of the favorable precedent. That is no longer the case based on this ruling, and such mug shots are now largely off limits – unlike booking photos of criminal defendants charged in state courts, which are subject to state public records laws. 


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Related legal case

Detroit Free Press v. U.S. Dept. of Justice