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.”
The 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.