Sixth US District Court of Appeals

Seal of the Sixth US Court of Appeals Sixth United States Court of Appeals.

Detroit Free Press Inc, V. Department of Justice, 73 F.3d 93

The holding by the appellate court in the Sixth United States Court of Appeals is the decision that many of the mugshot scams rely upon to justify their activity in placing booking photographs online.  Just what does the Sixth District Court of appeals in Detroit Free Press read?  Does the holding support the mugshot websites claim of “Freedom to publish?”

The plaintiffs in Detroit Free Press sued the United States Marshall’s Service to compel disclosure of eight booking photographs.  Detroit Free Press sought the booking photographs of eight individuals that had been arrested and were currently being criminally prosecuted.  The United States Marshall’s Service refused to release the booking photographs under exceptions (b)(6) and (b)(7)(c ) of the Freedom of Information Act, 5 U.S.C. 552.

Exception (b)(6) of the FOIA provides protection of personal or medical information from disclosure.

Exception (b)(7)(c ) of the FOIA provides protection of information of law enforcement record that would constitute an unwarranted invasion of personal privacy.

Detroit Free Press argued two issues: 1. booking photographs were not “Law enforcement records, or were not compiled for law enforcement purposes,” and 2. when a person is actively prosecuted for a criminal offense disclosure of booking photographs does not constitute an “Invasion of privacy.”

Boundaries of the Sixth US Court DistrictThe Sixth Circuit Court of Appeals held itself narrowly to those two issues.

Are booking photographs “Law enforcement records or compiled for law enforcement purposes?”  The court answered that question abruptly:“Despite the Free Press’s protestations to the contrary, the mug shots of the federal indictees at issue in this controversy were “compiled for law enforcement purposes.” In Jones v. F.B.I., 41 F.3d at 245-46, we recently endorsed a per se rule “under which records compiled by a law enforcement agency qualify as ‘records compiled for law enforcement purposes’ under FOIA.” (Emphasis in original.) The threshold requirement for exemption from disclosure of information under Sec. 552(b)(7) is, therefore, met by the mug shots created by the United States Marshals Service in its law enforcement capacity.”

The next question the court needed to reach was “during the time of active criminal prosecution can booking photographs constitute an unwarranted or unreasonable invasion of personal privacy?”

The courts held at paragraph 15: “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. Instead, we need resolve only the single issue of whether such disclosure in an ongoing criminal proceeding, in which the names of the defendants have already been divulged and in which the defendants themselves have already appeared in open court, “could reasonably be expected to constitute an … invasion of personal privacy.” Under these detailed circumstances, we believe that no privacy rights are implicated.”

Reading this holding, one is left with the conclusion that booking photographs are not exempted from disclosure only during the time of active criminal prosecution.  The disclosure of booking photographs after completion of criminal proceedings was deliberately undecided.

The dissenting opinion of Justice Alan E Norris is condensed into a simple sentence at paragraph 32: “In short, I believe that the disclosure of these mug shots would serve no public interest cognizable under the FOIA.”

In response to this holding, in the Sixth U.S. District, the U.S. Marshalls will release a mugshot only during active criminal prosecutions.  After prosecution, the U.S. Marshalls Service properly refuses to release mugshots.

Relying on the Detroit Free Press holding for continued publication of booking photographs after completion of criminal proceedings, whether convicted or acquitted, is a misapplication of the holding.


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4 thoughts on “Sixth US District Court of Appeals

  1. Although the sixth circuit did not reach the issue it is clear that the first amendment will require release of mug shots in case files after a case is adjudicated. There is no invasion of privacy. The file is already public. This is not even a close question. Do not confuse FOIA litigation with first amendment issues. Mug shots are public records.

    • The 5th US District Court, the Tenth Court of Appeals, the Eleventh Court of Appeal, and the US Supreme Court have all ruled that there is a privacy issue involved with photographs. This issue is addressed in several cases I will examine in the future There is a violation of the ‘Right of publicity’ under the Lanham act and many state statutes. It is very clear that after adjudication, mugshots are in fact exempted from FOIA requests. This is the position of the US Dept of Justice. Public records made by a state agency are only public records of the jurisdiction that made those records and not of the entire country or world. A public record in Florida is not a public record in Utah. The “Freedom of Speech” guaranteed by the first amendment can be, and is proscribed in some instances such as “Yelling fire in a crowded theater,” national security, and several other instances. We believe you may misunderstand your position.

  2. @MauriceRoss. By that standard your Passport, Drivers License and Social Security Number are also public record, but you don’t want those published, or do you?

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