MEAN MUGGIN' NO MORE: DETROIT FREE PRESS V. U.S. DEP'T OF JUSTICE AND A NON-TRIVIAL PRIVACY INTEREST IN BOOKING PHOTOGRAPHS

By Looney, Meghan | Boston College Journal of Law & Social Justice, January 1, 2017 | Go to article overview

MEAN MUGGIN' NO MORE: DETROIT FREE PRESS V. U.S. DEP'T OF JUSTICE AND A NON-TRIVIAL PRIVACY INTEREST IN BOOKING PHOTOGRAPHS


Looney, Meghan, Boston College Journal of Law & Social Justice


INTRODUCTION

On January 25, 2013, the U.S. Marshal Service denied a request by the Detroit Free Press for the booking photographs, colloquially referred to as "mug shots," of four police officers awaiting trial in the U.S. District Court for the Eastern District of Michigan.1 The four police officers, indicted for bribery and drug conspiracy charges, were awaiting a federal trial.2 The Detroit Free Press, the largest daily newspaper publication in Detroit, Michigan, made the request for booking photographs pursuant to the Freedom of Information Act ("FOIA"), a statute enacted by Congress in 1966 to promote the disclosure and transparency of governmental records to the public.3 FOIA requires that each federal agency make their records readily available to the public upon request, to enhance the public's understanding of the federal government's activities.4 An agency may only withhold information from the public if the request falls within one of nine statutory exemptions to FOIA.5 At issue with the Detroit Free Press' FOIA request in this case is exemption 7(C), which states that FOIA does not apply to records created for the purpose of law enforcement that "could reasonably be expected to constitute an unwarranted invasion of personal privacy."6 When the U.S. Marshals invoked exemption 7(C) to deny the newspaper's request for booking photographs, the Detroit Free Press claimed that this denial violated FOIA.7 In response, the Detroit Free Press sued the U.S. Department of Justice, thereby commencing Detroit Free Press II.8

In 1996, the U.S. Court of Appeals for the Sixth Circuit decided Detroit Free Press, Inc. v United States Department of Justice (Detroit Free Press I), a case with facts analogous to Detroit Free Press II.9 In Detroit Free Press I, the majority held that upon receiving a FOIA request for booking photographs, government agencies were required to release the photographs to the requestor because defendants could not reasonably expect that this disclosure would implicate their privacy rights.10 The majority in Detroit Free Press I reasoned that the Detroit Free Press' request did not fall within one of FOIA's exemptions because the mere fact that the information was embarrassing or harmful to the individual did not necessarily establish an invasion of personal privacy.11 To reach this conclusion, the majority held that in an ongoing criminal proceeding where the defendant has already appeared in court and had his name made public, the dissemination of the defendant's booking photograph did not vio- late any privacy rights.12 Adhering to this precedent set forth in Detroit Free Press I, in 2014 the District Court for the Eastern District of Michigan granted summary judgment to the Detroit Free Press in Detroit Free Press II, and ordered that the U.S. Marshals release the booking photographs of the four police officers awaiting federal prosecution to the newspaper.13

On appeal, a panel of the Sixth Circuit heard Detroit Free Press, Inc. v United States Department of Justice (Detroit Free Press III), and, similarly constrained by the precedent set forth in Detroit Free Press I, affirmed the district court's grant of summary judgment in favor of the Detroit Free Press.14 However, the panel strongly advocated for the full Sixth Circuit to rehear the case and reconsider the holding set forth in Detroit Free Press 1.15 Upon granting a rehearing en banc to reevaluate the Sixth Circuit's precedent, the full Sixth Circuit reversed the district court and panel decisions in Detroit Free Press IV, holding that defendants in ongoing criminal proceedings have a "non-trivial" privacy interest in their booking photos.16 In overturning two decades of precedent, and reversing two separate Sixth Circuit decisions, the appeals court recognized the damaging and long-lasting effects that the public release of booking photographs has on an individual's privacy interests.17

Part I of this Comment analyzes the history of the Sixth Circuit precedent surrounding the disclosure of booking photographs, beginning with FOIA and Detroit Free Press I, followed by the factual and procedural history of Detroit Free Press II, III, and IV Part II of this Comment delves further into the Sixth Circuit's analysis of booking photograph disclosure, and the long-lasting effects of this practice as compared to the release of other types of documents. …

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