Exposed: How Mugshots Expanded Government Secrecy

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By Amber Lee; Staff Member (Vol. 15)

Despite increased calls for government transparency, the Sixth Circuit gave the federal government the precedent needed to further withhold information from the public.  The Sixth Circuit holding in Free Press II states that an individuals interests in avoiding embarrassment or humiliation outweighs the public’s interest in knowing information. 

Case History

Since its passage in 1966, the Freedom of Information Act (FOIA) offered journalists and the general public a means of investigating the government. The power of FOIA, however, is not unlimited. The investigative statutory tool comes with limitations, including an exception preventing private citizens from exploiting the power of the federal government to investigate and expose one another. FOIA’s exemption (b)(7)(c) allows agencies to withhold disclosure of “information compiled for law enforcement purposes” when producing such documents “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

In 1996, the Sixth Circuit held that “no privacy rights are implicated” by agency disclosure of mug shots once a defendant has appeared in open court. Other circuits determined that  releasing mug shots did implicate privacy interests; however, their rulings were ineffective. The Department of Justice provided guidelines instructing the agency not to release photos unless the release serves a “law enforcement purpose” to attempt to provide the privacy other circuits demanded. However, the Sixth Circuit ruling allowed disclosure, so the federal government must disclose mug shots for FOIA requests submitted within the Sixth circuit. This loophole not only allowed journalists and the public access to booking photos, but also, unfortunately, gave access to the emerging mug shot website industry. This industry profits from posting mug shot photos online and charging a “ransom” to remove the photo.

After other circuits reached the opposite conclusions, the Sixth Circuit recently reexamined their position on privacy interests implemented in relating mug shots in Detroit Free Press, Inc. v. United States Department of Justice (Free Press II). In this case, the Sixth Circuit reversed course and held that “[individuals] enjoy a non-trivial privacy interest in their booking photos” even after appearing in open court, and therefore booking photos may be exempt from disclosure under 7(c).

Privacy Interests Amplified in Free Press II

After four police officers were arrested for bribery and drug conspiracy, the Detroit Free Press requested mug shots through FOIA, but the U.S. Marshal Service denied their request citing exemption 7(c). The newspaper sued to gain access to the photographs and while the district court agreed with the newspaper’s contention that the mug shots do not fall within FOIA’s privacy exemption, it stopped short of ordering disclosure. The Sixth Circuit reversed the district court’s determination and concluded that individuals have a nontrivial privacy interest in their mug shots and, under FOIA, those interests must be balanced against the public interest in disclosing the information.

Despite earlier cases holding that the mere possibility that information might embarrass is not sufficient to establish a personal privacy interest, the Sixth Circuit in this case argued that Exception 7(c)’s conception of personal privacy encompasses “[e]mbarassing and humiliating facts—particularly those connecting an individual to criminality.” Judge Cook explained that mug shots fall within the realm of “embarrassing and humiliating information” because they are “snapped ‘in the vulnerable and embarrassing moments’ immediately after [an individual is] accused, taken into custody, and deprived of most liberties.” The Sixth Circuit also, pulling from the Supreme Court rationale in National Archives & Records Administration v. Favish, concluded that courts must also consider the consequences of disclosure in this era of technology in determining the statutory privacy interests protected by FOIA exemptions.  Judge Cook wrote that at the time Free Press I, the 1996 case holding no privacy rights were implicated by releasing mug shots, was decided at a time before Google when mug shots “appeared on television or in the newspaper and then, for all practical purposes, disappeared.” However, with the infinite memory of the Internet, the Sixth Circuit argued that this reasoning is no longer persuasive. The Sixth Circuit also rejected arguments in favor disclosure, stating that public disclosure interests did not come close to the privacy interests at stake by releasing that information.

Public Disclosure Interests Overlooked

Whatever the Sixth Circuit’s motivations for reversing course in Free Press II, the court’s attempt to remedy any privacy interests violated by releasing mug shots impedes the public’s ability to be informed on newsworthy criminal matters.

The Sixth Circuit grossly over exaggerated the privacy interests implicated in releasing booking photos from individuals already revealed in open court.  When  law enforcement routinely makes booking photographs available to the press, the public expects photographs to always be accessible and grows suspicious when withheld. The Free Press II dissent discusses a variety of real scenarios highlighting the public importance of disclosure, including instances of mistaken identity, impermissible profiling, and arrestee abuse.

The dissent argues that booking photos illustrate which populations the government prosecutes and giving authorities the discretion to determine when and which photos to release creates the potential for, or perception of, bias. The dissent writes, “the release [of booking photos] may raise questions about prosecutorial decisions, enabling the public to detect and hold to account prosecutors who disproportionately charge or overlook defendants of a particular background or demographic.”

Booking photos, according to the dissent, also help the public learn how the government treats detained individuals. For example, the dissent points to the release of booking photos that showed an arrestee’s bloodied and scratched face prompting local media to question the circumstances of his arrest. The publication of another mug shot showed an arrestee with two black eyes prompted the public to express outrage for suspicion that police used excessive force.

While these public disclosure interests may not apply to every scenario, the Sixth Circuit’s seemingly dismissive tone to these “phantom” public disclosure interests may set dangerous precedent. In the future, this case will be cited as a reason to dismiss public disclosure arguments that may actually outweigh the privacy interests in not being embarrassed or humiliated.

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