FOIA Exemption Protects Mug Shots From Disclosure

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By Bernie Pazanowski

July 14 — The Freedom of Information Act exemption that protects personal privacy prevents booking photos from public disclosure, the en banc U.S. Court of Appeals for the Sixth Circuit held July 14 ( Detroit Free Press Inc. v. DOJ, 6th Cir. (en banc), No. 14-1670, 7/14/16 ).

Reversing 20-year-old precedent, the court's opinion by Judge Deborah L. Cook said that booking photos convey “embarrassing and humiliating information,” which is exactly the type of non-trivial privacy interest protected by FOIA Exemption 7(C).

Nine judges signed the majority opinion, while seven joined the dissent.

The dissent by Judge Danny J. Boggs, argued that the majority opinion recognized “a vague privacy interest in inherently non-private matters.”

The opinion isn't “good for freedom of information advocates,” Daniel J. Klau, McElroy, Deutsch, Mulvaney & Carpenter LLP, Hartford, Conn., who represented multiple amici in the case, told Bloomberg BNA July 20.

It abandons the Sixth Circuit's longstanding position that a person didn't have a privacy interest in mug shots, he said.

Now, “the press and public are much less likely … to have access to such photos,” Klau said.

An attorney for the government didn't respond to a request for comment.

Discarding Precedent

In Detroit Free Press Inc. v. Dep't of Justice (Free Press I), 73 F.3d 93 (6th Cir. 1996), the Sixth Circuit held that FOIA required the release of booking photos, finding that criminal defendants don't have a privacy interest in them.

Constrained by that precedent, the district court and panel of the Sixth Circuit ordered the release of the booking photos in this case.

Citing opinions by the Tenth and Eleventh circuits, the en banc court found “ Free Press I untenable” and ended the circuit split caused by the panel opinion.

Instead, it said that “[i]ndividuals enjoy a non-trivial interest in the booking photos.”

Exemption 7(C)

The court explained that FOIA Exemption 7(C) protects from disclosure information that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The exemption is intended to keep personal facts away from the public eye.

That includes embarrassing and humiliating booking photos, which are vivid symbols of criminal accusation, the court said.

Nothing in the Constitution or state and federal privacy law requires a different conclusion, it said.

It did add, however, that a case-by-case approach should be adopted to decide whether disclosure of a particular booking photo is in the public's best interest.

Balancing Test

Going forward, to have access to mug shots the “press must prove that the public interest in disclosure outweighs the privacy interest [of] the individual who was arrested,” Klau noted.

If there is any good news in the opinion, Klau added, it's that the court was closely divided.

“Other courts hopefully will find the dissenting judges' position more persuasive,” he said.

Steve Frank, U.S. Department of Justice, represented the government. Robert M. Loeb, Orrick Herrington & Sutcliffe LLP, Washington, represented the paper.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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