The Tenth Circuit Court of Appeals ruled that the federal government is under no obligation to release mugshots of accused criminals under the Freedom of Information Act, even though many states and localities routinely make such booking photos public.
In a previous case, U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989), the United States Supreme Court held “the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information.” The Eleventh Circuit then looked at other decisions. In Prison Legal News, the court applied Exemption 7(C ) to autopsy photographs and a video taken of the aftermath of a prison murder. It did not matter that the photographs were shown to a jury in open court and to the public audience present at trial. The court concluded that the privacy interests contained in Exemption 7(C ) remained intact and rejected the application of the “public domain doctrine” to law enforcement photographs. 628 F.3d 1243.
The court then proceeded to examine an action from, Louisiana, Times Picayune Pub. Corp. v. U.S. Dep’t of Justice, 37 F. Supp. 2d 472, 477 (E.D. La. 1999). There, the subject was Edward J. DeBartolo, a well-known businessman and owner of the San Francisco Forty-Niners. The court stated that Contrary to the assertion of the Times Picayune, Mr. DeBartolo’s mug shot is 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. They include front and profile shots, a backdrop with lines showing height, and, arguably most humiliating of all, a sign under the accused’s face with a unique Marshals Service criminal identification number.
The court continued, “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. . . . A mug shot preserves, in its unique and visually powerful way, the subject individual’s brush with the law for posterity.” Following the Supreme Court’s reasoning in Reporters Committee, the court reiterated that a booking photo is intended for use only by a specific and small group of people—further reason for a court to protect an individual’s privacy interest in that photo.
The court iterated that the purpose of records requests are not advanced by the disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct. In this case—and presumably in the typical case in which one private citizen is seeking information about another—the requester does not intend to discover anything about the conduct of the agency that has possession of the requested records.
Tulsa World argued nine points of public interest in obtaining mugshots:
(1) Determining the arrest of the correct detainee
(2) Detecting favorable or unfavorable or abusive treatment
(3) Detecting fair versus disparate treatment
(4) Racial, sexual, or ethnic profiling in arrests
(5) The outward appearance of the detainee; whether they may be competent, incompetent, or impaired
(6) A comparison in a detainee’s appearance at arrest and at the time of trial
(7) Allowing witnesses to come forward and assist in other arrests and solving crimes
(8) Capturing a fugitive
(9) To show whether the indictee took the charges seriously
The U.S. Court of Appeals for the Tenth Circuit’s decision, issued by a unanimous three-judge panel, rejected the claims of Tulsa World for the booking photos. The ruling was a victory for the Obama administration, which has pledged to be more open than any previous one, but has staunchly defended the federal government’s longstanding non-disclosure policy for mugshots. The ruling was another defeat for the online mug shot extortion racket because there is little to suggest that disclosing mugshots would inform citizens of a government agency’s adequate performance of its function.
The decision leaves the federal appeals courts split, 2-1, on the issue. The Tenth and Eleventh Appeals courts have held mugshots exempt from FOIA and the Sixth Court of Appeals found them subject to release under FOIA. However, the briefs filed before the US Supreme Court by the Department of Justice in Karantsalis suggest that the Dept. of Justice will ask the Sixth Court of Appeals to reconsider their holding to resolve the circuit split.
“There is little to suggest that releasing booking photos would significantly assist the public in detecting or deterring any underlying government misconduct….For example, a booking photo may indicate just as much about pre-arrest conduct of a detainee as post-arrest conduct by law enforcement. There is also little to indicate that the release of booking photos would allow the public to detect racial or ethnic profiling without more information, and profiling has not been alleged here,” Kelly wrote.
Kelly left open the possibility that specific mugshots might be have to be disclosed under certain circumstances, but he rejected arguments that technological developments in recent years favor disclosure.
“While Tulsa World argues that the privacy interest in a booking photograph is diminished because ‘there has been an explosion of camera phones and video which allow persons to be photographed . . . at any time,’. . . this argument cuts against its position. Given easy access to photographs and photography, surely there is little difficulty in finding another publishable photograph of a subject,” Kelly wrote.