Academic journal article Harvard Law Review

Administrative Law - Freedom of Information Act - Sixth Circuit Holds That Mug Shots May Be Exempt from Disclosure under FOIA Personal Privacy Exemption

Academic journal article Harvard Law Review

Administrative Law - Freedom of Information Act - Sixth Circuit Holds That Mug Shots May Be Exempt from Disclosure under FOIA Personal Privacy Exemption

Article excerpt

ADMINISTRATIVE LAW--FREEDOM OF INFORMATION ACT--SIXTH CIRCUIT HOLDS THAT MUG SHOTS MAY BE EXEMPT FROM DISCLOSURE UNDER FOIA PERSONAL PRIVACY EXEMPTION.--Detroit Free Press, Inc. v. United States Department of Justice, 829 F.3d 478 (6th Cir. 2016) (en banc).

Journalists with easy access to photographs have been accused of "invad[ing] the sacred precincts of private and domestic life" (1) since the phrase "right to privacy" first entered the legal lexicon. (2) Since its passage in 1966, the Freedom of Information Act (3) (FOIA) has offered professional reporters and amateur sleuths a powerful tool to investigate "what their government is up to." (4) But FOIA came with an exception to prevent private citizens from harnessing the power of the federal government to investigate one another. FOIA's Exemption 7(C) allows agencies to withhold disclosure of "information compiled for law enforcement purposes" (5) when producing such records "could reasonably be expected to constitute an unwarranted invasion of personal privacy." (6) In 1996, the Sixth Circuit held that "no privacy rights are implicated" by agency disclosure of mug shots once a defendant has appeared in court. (7) Recently, in Detroit Free Press, Inc. v. United States Department of Justice (Free Press II), (8) the Sixth Circuit reversed course and held that "[i]ndividuals enjoy a nontrivial privacy interest in their booking photos" even after appearing in open court, (9) and that booking photos may be exempt from disclosure under Exemption 7(C) on a case-by-case basis. (10) To reach this conclusion, the Sixth Circuit compared mug shots to rap sheets and death-scene images. (11) These comparisons focused more on online embarrassment than on the disclosure of private or personal facts. The privacy interest recognized in Free Press II thus calls into doubt the conventional wisdom that the "right to be forgotten" is out of step with U.S. law. (12)

In 2013, after four Michigan police officers were arrested for bribery and drug conspiracy, the Detroit Free Press requested the officers' mug shots pursuant to FOIA. (13) The U.S. Marshals Service denied the request, citing Exemption 7(C). (14) The Detroit Free Press appealed to the Department of Justice's (DOJ) Office of Information Policy, which failed to issue a determination within twenty days, as required by statute. (15) Having exhausted its administrative remedies, the newspaper sued for the photographs in the Eastern District of Michigan. (16)

The district court accepted the newspaper's contention that mug shots do not fall within FOIA's personal privacy exemption but stopped short of ordering disclosure. Bound by Free Press I's holding that the release of mug shots "could not reasonably be expected to constitute an invasion of personal privacy," (17) the district court found that DOJ had violated FOIA by withholding the booking photographs. (18) However, applying a four-factor test to assess the need for a stay pending appeal, the court found that the (now-convicted) police officers would be "irreparably harmed" without a stay and did not order the mug shots' immediate release. (19)

The Sixth Circuit affirmed. (20) In a per curiam opinion, the panel held that FOIA required the government to disclose the mug shots. (21) However, the panel noted that "several factors merit[ed] revisiting Free Press I" (22) and urged the full court to reconsider the case. The panel asserted that, contrary to the holding of Free Press I, an individual has a privacy interest in his mug shot, which conveys "potentially embarrassing or harmful information" by capturing "how an individual appeared at a particularly humiliating moment immediately after being taken into federal custody." (23) Further, the court noted that the privacy interest is heightened because "booking photographs often remain publicly available on the Internet long after a case ends." (24)

After granting rehearing en banc, the Sixth Circuit reversed and remanded. …

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