Fifth US District Court
In the Fifth US District Court in 1989, a lawsuit was filed seeking the mugshot of Edward J. DeBartolo, Jr. The lawsuit was titled “Times Picayune Pub. Corp. v. U.S. Dept. of Justice,” and is cited at 37 F.Supp.2d 472 (1999).
Mr. DeBartolo is a businessman who had ownership of the San Francisco Forty-Niners as well as other business dealings. Some of those interests are in Louisiana. Mr. DeBartolo pleaded guilty to federal charges arising out of a criminal investigation of former Louisiana Governor, Edwin W. Edwards.
On November 20, 1998, the Times Picayune filed this lawsuit under the Freedom of Information Act, 5 U.S.C. § 552, attempting to compel the United States Marshals Service to release Mr. DeBartolo’s mug shot. The Court considered the cross motions for summary judgment filed by both parties. The Court found in favor of the US Marshalls Service refusing to release the mugshots of Mr. DeBartolo.
The facts of this case were uncontested. On October 6, 1998, Edward J. DeBartolo, Jr. pleaded guilty and was sentenced, in the United States District Court for the Middle District of Louisiana, on the charge of misprision of a felony in violation of 18 U.S.C. § 4. The U.S. Marshals Service personnel processed Mr. DeBartolo. This processing included taking his fingerprints and his mug shot. On October 9, 1998, the Times Picayune submitted a Freedom of Information Act (FOIA) request to the Marshals Service seeking copies of the mug shot. The Marshals Service denied the request by letter on October 22, 1998. The Marshalls Service claimed that the mug shot was exempt from disclosure under 5 U.S.C. § 552(b) (7) (C ). On October 21, 1998, the Times Picayune appealed the denial of its request to the Office of Information and Privacy (OIP) of the Department of Justice. OIP acknowledged receipt of the appeal by letter dated November 10, 1998. On November 20, 1998, after the time had expired for deeming its administrative remedies exhausted, 5 U.S.C. § 552(a)(6)(C ), the Times Picayune filed for remedy in federal district court.
The FOIA provides for the disclosure of government records upon request 5 U.S.C. § 552(a). The statute was intended to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Avondale Industries, Inc. v. National Labor Relations Board,90 F.3d 955, 958 (Fifth Cir.1996), quoting United States Department of State v. Ray,502 U.S. 164, 173, 112 S.Ct. 541, 547, 116 L.Ed.2d 526 (1991). The FOIA embodies “a general philosophy of full agency disclosure.” Halloran v. Veterans Administration, 874 F.2d 315, 318 (Fifth Cir.1989), quoting Department of the Air Force v. Rose, 425 U.S. 352, 360, 96 S.Ct. 1592, 1598-99, 48 L.Ed.2d 11 (1976). Recognizing that a mandatory policy of full disclosure of agency records under the FOIA is unmerited in all circumstances, Congress exempted certain categories of documents from disclosure. 5 U.S.C. § 552(b) (1)-(9); Halloran, 874 F.2d at 318-19.
5 U.S.C. § 552(b)(7)(C ) (“FOIA Exemption 7(C )”). For the exemption to apply, the information requested must be compiled “for law enforcement purposes.” If that threshold is met, then the specific privacy interests implicated by disclosure of the information must be identified and evaluated. Assuming a privacy interest is determined to be involved, the next step is to identify and evaluate the particular public interests achieved by disclosure. Finally, the specific privacy interests and the particular public interests are balanced to determine if the “invasion” of the privacy interests is “unwarranted.” Halloran, 874 F.2d at 319.
The Times Picayune contended that Mr. DeBartolo had no protectable privacy interest in his mug shot. The Times argued that Mr. DeBartolo is a well-known person and that his photograph has been shown publicly through the media on numerous occasions, therefore, disclosure of another photograph — the mug shot — could not be a privacy invasion. Additionally, the Times-Picayune argues that Exemption 7(C ) did not apply to mug shots at all.
As part of its authority, the plaintiff cited several cases that held there is no constitutional or common law right of privacy to a mug shot, as well as cases interpreting state Freedom of Information Act statutes. See, e.g., Paul v. Davis,424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976); Sorrentino v. City of Philadelphia, 1997 WL 597990, *7 (E.D.Pa.1997); Detroit Free Press v. Oakland County Sheriff,164 Mich.App. 656, 418 N.W.2d 124, 127 (Mich.Ct.App.1987); Pemberton v. Bethlehem Steel Corp.,66 Md.App. 133, 502 A.2d 1101, 1119 (Md. App.1986); Frith v. Associated Press,176 F.Supp. 671, 673-76 (E.D.S.C.1959). Those cases were easily distinguished. The right of privacy formulated under the Constitution and the common law are different from the privacy interests protected under the FOIA. Reporters Committee, 489 U.S. at 763 n. 13, 109 S.Ct. at 1476 n. 13. Obviously, a state court’s interpretation of a state’s FOIA also is irrelevant to the meaning of the federal statute.
In order to determine whether Mr. DeBartolo had a privacy interest in a mug shot for purposes of the FOIA Exemption 7(C ), the Court looked to the definition of “privacy interests” as encompassed by the FOIA and as interpreted by the binding federal case law.
The Times Picayune relied mostly on the Sixth Circuit decision of Detroit Free Press, Inc. v. Department of Justice,73 F.3d 93 (6th Cir.1996); which concluded that the release of mug shots in that case did not constitute an invasion of personal privacy under Exemption 7(C ). For the following reasons, the Court disagreed with that decision because it is contrary to United States Supreme Court jurisprudence and because it conflicted with Fifth Circuit case law that is binding on the Fifth circuit.
The Supreme Court broadly defined the privacy interests protected by Exemption 7(C ) in Reporters Committee. That case involved application of the FOIA exemption to “rap sheets” containing individual information of members of a family alleged to be involved in organized crime. The plaintiff argued that the interest in avoiding disclosure of the rap sheets “approached zero” because the same information was already available to the public through individual searches of various court proceedings and records. Reporters Committee, 489 U.S. at 762-63, 109 S.Ct. at 1476. The US Supreme Court rejected what it called the plaintiff’s “cramped notion of personal privacy.” The Court found that “both the common law and the literal understandings of privacy encompassed the individual’s control of information concerning his or her person. The Court then turned to the definition of “privacy” given in Webster’s dictionary: “information may be classified as `private’ if it is `intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.'”
Court must consider “the manner in which the information relating to the individuals was obtained and whether a person has a reasonable interest in preventing its public disclosure.”
With respect to Exemption 7(C ), both the United States Supreme Court and the Fifth Circuit found significant that the original exemption, which referred to disclosures that “would constitute” an invasion of privacy, was statutorily broadened to cover disclosures that “could reasonably be expected to constitute” such an invasion. Reporters Committee, 489 U.S. at 756, 109 S.Ct. at 1473; Halloran, 874 F.2d at 319. In Halloran, the Fifth Circuit explained the significance of this language:
… we note that we are not required to determine with absolute certainty the effects of releasing the information in controversy. Indeed, as already noted, exemption 7(C ) requires only that we find that the disclosure of the records or information “could reasonably be expected to constitute” an unwarranted invasion of privacy before nondisclosure is authorized.
Thus, courts have accepted, as valid, affidavits from government officials that identify the privacy interests at stake only in general terms, because “it is difficult if not impossible, to anticipate all respects in which disclosure might damage reputations or lead to personal embarrassment and discomfort.” We thus do not require that the government detail the precise harm which disclosure would inflict upon the privacy interests of each individual; rather, it must only show that release of the information “could reasonably” result in an unwarranted invasion of privacy.
Applying these principles leads to the conclusion that individuals do have a protectable privacy interest under the FOIA in their mug shot. Contrary to the assertion of others, mugshots are more than just another photograph of a person. Mug shots in general are notorious for their visual association of the person with criminal activity. Whether because of the unpleasant circumstances of the event or because of the equipment used, mug shots generally disclose unflattering facial expressions. As in the cliché, a picture is worth a thousand words. For that reason, a mug shot’s stigmatizing effect can last well beyond the actual criminal proceedings. Furthermore, just because somebody has conceded guilt does not take away that person’s interest in nondisclosure of the mug shot. Otherwise-private information that may have been at one time or in some way in the `public’ domain does not mean that a person irretrievably loses his or her privacy interests in it”). A mug shot preserves, in its unique and visually powerful way, the subject individual’s brush with the law for posterity. It is reasonable for a criminal defendant, even one previously convicted and sentenced, to object to the public disclosure of his or her mug shot.
Moreover, mug shots contain information intended for the use of a particular group or class of persons. Booking photographs are made for law enforcement purposes, and are not routinely available to the public. This is precisely the Webster’s definition of privacy adopted by the United States Supreme Court in Reporters Committee: “not freely available to the public.” Reporters Committee, 489 U.S. at 764, 109 S.Ct. at 1477. Additionally, as in Reporters Committee, the fact that The Times Picayune litigated the case at all indicates that people’s mugshots are more than just another photograph that portrays “freely available” information.
In any case, Detroit Free Press is distinguishable from the online mugshot and mugshot removal racket because the subjects of the mug shots in Detroit Free Press were under indictment and awaiting trial when the plaintiff made its FOIA request. The court reached the opinion that “the need or desire to suppress the fact that the individual depicted in a mug shot has been booked on criminal charges is drastically lessened in an ongoing criminal proceeding.” The Court in Detroit Free explicitly declined to consider whether Exemption 7(C ) would apply in a situation such as that presently before the Court: “We need not decide today whether the release of a mug shot by a government agency would constitute an invasion of privacy in situations involving dismissed charges, acquittals, or completed criminal proceedings.” Contrary to Times Picayune contentions, a person’s decision to plead guilty reflects his desire to avoid the adverse public exposure, and further damage to his already tarnished public image, that would have accompanied prolonged criminal proceedings and, potentially, a term in prison. There is no justification to treat a criminal defendant’s guilty plea as a waiver of his or her interest in suppressing a mug shot’s graphic representation of that guilt.
That a person may be a well-known person may well exacerbate the privacy intrusions that “could reasonably be expected” to result from public dissemination of his mug shot. Rival businessmen “could reasonably be expected” to use a person’s arrest and circulate a mug shot to perpetuate his criminal association. Such efforts “could reasonably be expected” to trigger additional publicity about an individual, including the reappearance of his mug shot in the media. “[R]enewed publicity brings with it a renewed invasion of privacy. The renewed intrusion is subject, in its own right, to FOIA protection.” Halloran, 874 F.2d at 322 n. 10, quoting Bast v. U.S. Department of Justice,665 F.2d 1251, 1254 (D.C.Cir.1981). This is only one example of how the dissemination of the mug shot “might damage reputations or lead to personal embarrassment and discomfort.” Halloran, 874 F.2d at 320.
Even if there were a viable public interest in the public disclosure of person’s mug shot, the Court still would have to balance the privacy interest in not releasing the mug shot against any public interest surrounding its disclosure. At this stage, the Court may consider the extent of a particular individual’s privacy interest in his or her mug shot. The Times Picayune used words such as “significant,” “substantial,” and “meaningful” to describe the type of privacy interest that must be implicated to trigger Exemption 7(C ). These buzzwords apply to Exemption 6 and not exemption 7(C ). Courts have applied both exemptions repeatedly, and have held that even a modest privacy interest outweighs a nonexistent or minimal public interest.
Disclosure of a person’s mug shot has a reasonable expectation of constituting an invasion of that person’s personal privacy. Even if the privacy interest is not significant, the public interest in disclosure of a mug shot is, at best, purely speculative. The court recalled, “Something … outweighs nothing every time.” The Court concluded by determining that the privacy interest in non-disclosure outweighs any public interest. Therefore, disclosure of mugshots, except in limited circumstances, is unwarranted.