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Tenth Circuit Rejects Newspaper's FOIA Request for Mug Shots

Tuesday, March 6, 2012
World Publishing Co. v. DOJ, No. 11–CV–05063, 2012 BL 44118 (10th Cir. Feb. 22, 2012) The U.S. Court of Appeals for the Tenth Circuit affirmed a district court's ruling that a newspaper was not entitled to booking photographs from the U.S. Marshals Service ("USMS") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The Tenth Circuit found that the government could withhold the photos under a FOIA exemption for disclosures that would constitute an unwarranted invasion of privacy. Other circuits have ruled similarly, although the Sixth Circuit has found that such photos are not exempt.

Newspaper Requests Booking Photos

World Publishing Company, publisher of the Tulsa World newspaper, requested booking photos (popularly called "mug shots") of six pre-trial detainees from the USMS under the FOIA. The government refused to disclose the photos, citing FOIA Exemption 7(C), which exempts "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . ." World Publishing at 3 (quoting 5 U.S.C. § 552(b)(7)(C)). As the court explained, FOIA was enacted to facilitate public scrutiny of federal government agencies while providing some exceptions from disclosure, which are narrowly construed. The government has the burden of proving that an exemption applies. To this end, courts have applied a three-part test to determine whether Exemption 7(C) applies, analyzing if (1) the information was gathered for a law-enforcement purpose, and (2) there is a personal privacy interest at stake. If these factors apply, then the court must (3) balance the privacy interest against the public interest in disclosure. Id. at 3–4 (citing Prison Legal News v. Executive Office for U.S. Attorneys, 628 F.3d 1243, 1247–48 (10th Cir. 2011) and DOJ v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 776 (1989)). The newspaper challenged the district court's application of the second and third factors.

Circuit Split on FOIA Applied to Booking Photos

The court noted a circuit split regarding disclosure of booking photos. In Reporters Committee the U.S. Supreme Court held that Exemption 7(C) exempted disclosure of FBI criminal history summaries, ("rap sheets") even though much of the information was public record and the affected individuals had been convicted. The Eastern District of Louisiana held that the subject of a booking photo had a protectable privacy interest under the FOIA, noting that "Mug shots in general are notorious for their visual association of the person with criminal activity. [ . . . ] [a]s in the clich

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