Supreme Court

Supreme Court, United States
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Theodore Karantsalis petitioned the United States Supreme court for certiorari after being ruled against at the District court and the Appellate court levels.  Karantsalis was again ruled against when the court denied Karantsalis petition for certiorari without comment.  The Supreme Court’s denying certiorari is not monumental because the Supreme Court denies many more petitions for certiorari than it grants.

Karantsalis’ petition for certiorari is not available online, but the motion to deny certiorari filed by the United State Marshall’s Service and the United States Department of Justice is available online.  This brief and motion reveals Karantsalis’s reasoning in petition, and shows the legal position and reasoning of the United States when regarding the release of mug shots under the Freedom of Information Act.

Members of the Supreme CourtThe issue raised before the Supreme Court was:
“Whether the public disclosure under the Freedom of Information Act, 5 U.S.C. 552, of booking photographs of an individual who pleaded guilty to securities fraud “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” 5 U.S.C. 552(b)(7)( C), because the privacy interest in such records outweighs a purported public interest in disclosure.”

The Department of Justice argued that booking photographs, colloquially known as “mug shots,” are protected under the Privacy Act of 1974, 5 U.S.C. 552a.  The Privacy act prohibits the disclosure of such records without the written permission of the person the records concern unless there is a statutory exception.

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The Department of Justice examined the arguments presented by Karantsalis in the lower courts and why the courts rejected Karantsalis’ arguments.

Karantsalis argued before the lower courts that: 1) Mug shots implicate no privacy interest. 2) A mug shot of Luis Giro was released when the F.B.I. circulated a photograph of Giro through Interpol. 3) Public interest in viewing the mug shot of Giro outweighed Giro’s privacy interest in the photograph. 4) Giro had no continuing privacy interest in preventing the public dissemination of his booking photographs.

The arguments of Karantsalis were rejected in the lower courts because: 1) Mug shots by their very nature implicate guilt and a person does have a privacy interest in the photograph. 2) The F.B.I. had no mug shot of Luis Giro until after he was apprehended; the F.B.I. circulated a driver’s license picture of Giro to Interpol and asked that the photograph not be publicly released. 3)  A booking photograph is a unique and powerful type of photograph that raises personal privacy interests distinct from normal photographs; “A booking photograph,” the court explained, “is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt.” 4)  Booking photographs do more than suggest guilt: they raise a unique “privacy interest” because the mug shot captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties, moments that otherwise normally are not “exposed to the public eye.” 6) Booking photographs are records compiled for law enforcement purposes and not subject to disclosure.

The lower courts also looked at the petitioner’s asserted “public interest” claim in disclosure; the district court held that “no public interest is served by releasing the booking photographs.”  The court further explained, “the general curiosity of the public in an arrestee’s facial expression is not a cognizable interest” under exemption 7( C) of the Freedom of Information Act because disclosure would “not contribute significantly to public understanding of the operations or activities of the government.”

For these reasons, the district court concluded that the Exemption 7( C) “balance weighs heavily against disclosure” because the court found no “discernible interest” in disclosure and concluded that arrestees retain a “substantial personal privacy interest in preventing public dissemination of booking photographs.”

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The U.S. Marshall’s brief in opposition to certiorari argued that 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” about himself.  An individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form. An individual’s interest in the non-disclosure of his own booking photographs qualifies, at the very least, as a “nontrivial privacy interest.”  The disclosure of such photographs, which normally are not “exposed to the public eye,” implicates a privacy interest at least as strong as the disclosure of an individual’s publicly available home address. Disclosing a booking photograph of an individual who has yet to appear and be convicted in court undoubtedly would produce a more significant invasion of personal privacy. However, that does not mean that an individual who has pleaded guilty in open court has no continuing interest in the non-disclosure of his booking photographs. More importantly, mug shots reveal much more than the sterile fact of arrest (or later conviction). They graphically depict individuals in the embarrassing, nonpublic moment of their processing into the criminal justice system. The adage that one picture is worth a thousand words is apt in this context: the visual depiction of the individual’s appearance at booking reflects a uniquely powerful and lasting image of what can be one of the most difficult episodes in an individual’s life.

Karantsalis correctly observed that the court of appeals’ decision conflicts with the Sixth Circuit’s decision in Detroit Free Press. That division of authority reflects disuniformity in the application of Exemption 7( C) to FOIA requests for prisoner booking photographs.  However, the view of the U.S. Government is the question presented does not warrant review by this Court now.  Although a division of authority on the question presented may warrant this Court’s review in the future, the government does not believe that the Court’s intervention is necessary at the time. The conflict between the Sixth and Eleventh Circuits arose only recently, with the Eleventh Circuit’s decision in this case. At least one other case raising the same Exemption 7( C) question is now pending, and the Tenth Circuit can be expected to issue a decision analyzing the newly developed conflict in the near future.  The recent conflict of authority has supplied an appropriate reason for the Sixth Circuit to reconsider Detroit Free Press in an appropriate case. Federal Rules of Appellate Procedure, 35(b)(1)(B) (en banc rehearing is warranted to resolve a conflict with another court of appeals). The justification for rehearing has increased because the Tenth Circuit in World Publishing Co. agreed with the Eleventh circuit court of appeals’ decision in this case. If the Sixth Circuit was to grant rehearing, its decision could obviate any need for intervention by the Supreme Court.

PDF of the United States Department of Justice opposing certiorari.


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