United States Court Rules Mug Shots Protected

28 February 2012

By Harry Hammit

Hammit is publisher of Access Reports, a bi-monthly report on U.S. and Canadian freedom of information legal developments. 

After the Supreme Court put most personal information off limits in its 1989 Reporters Committee decision, appellate courts in particular began to find any number of reasons why such information was protected by Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records).

An occasional district court judge would signal his or her distaste for the rigidity of the Reporters Committee standard and stray off the reservation to find that disclosure of a certain category of personal information did indeed serve the public interest. But those cases were largely the exception.

But in 1996 the Sixth Circuit ruled in Detroit Free Press v. Dept of Justice, 73 F.3d 93 (6th Cir. 1996), that mug shots of those individuals arrested on federal charges were not protected by the privacy exemptions and, as a matter of fact, there was no cognizable privacy interest in one’s mug shot.

To those in the access community, the case seemed like a well-deserved breath of fresh air, although one whose effect the Justice Department set about minimizing to the greatest extent possible.

Although the Detroit Free Press ruling remained the only appellate case for years, a 1999 district court decision – Times Picayune v. Dept of Justice, 37 F. Supp. 2d 472 (E.D. La 1999) – has become much more frequently cited because it went the other way, finding a protectable privacy interest in mug shots.

The Eleventh Circuit finally found mug shots were  protected in Karantsalis v. Dept of Justice, 635 F.3d 497(11th Cir. 2011) and now another nail has been driven in the coffin of public access to mug shots by the Tenth Circuit’s ruling against the Tulsa World, upholding a district court decision (World Publishing Company v. United States Department of Justice, No. 11-5063, U.S. Court of Appeals for the Tenth Circuit, Feb. 22). But while the Tenth Circuit gives a ringing endorsement of the non-disclosure of mug shots, the case says virtually nothing about what is private about mug shots but spends most of its time observing that the Tulsa World was unable to provide a convincing argument for why disclosure of mug shots was in the public interest. 

Tulsa World argued that the Justice Department’s contention that mug shots were not generally available was belied by the practice in most states and in the Sixth Circuit, where the Marshals Service adheres to a practice of disclosing mug shots from any jurisdiction as long as they are requested by someone who has access to the Sixth Circuit.

But the Tenth Circuit indicated that “we are not persuaded by the practice of other jurisdictions.” The court continued: “To the contrary, the actions of state law enforcement agencies in disclosing booking photos does not mean that USMS booking photos are generally available to the public outside of the Sixth Circuit. Persons arrested on federal charges outside the Sixth Circuit maintain some expectation of privacy in their booking photos.”

Although the government traditionally takes the position that disclosure of information to an elementary school student in Paducah would require disclosure of the same information if requested by the most notorious international terrorist, the abundant public availability of mug shots apparently had no effect whatsoever on the Tenth Circuit.

The court noted that “except in limited circumstances, such as the attempt to capture a fugitive, a USMS booking photograph simply is not available to the public. Apparently disseminating “fugitive” mug shots in post offices across the country does little to diminish the privacy expectation in mug shots generally. The Tenth Circuit rejected the World’s claim that the explosion of personal cell phone cameras made it much more likely that people would be photographed in public places by finding that public availability “cuts against [the World’s] position.

Given easy access to photographs and photography, surely there is little difficulty in finding another publishable photograph of a subject.” Without explaining what the privacy interest actually is, the court then went on the say why there is no public interest in disclosure.

The Tulsa World identified nine possible public interests that could be furthered by disclosure. These included: (1) determining the arrest of the correct detainee, (2) detecting favorable or unfavorable or abusive treatment, (3) detecting fair versus disparate treatment, (4) racial, sexual, or ethnic profiling in arrests, (5) outward appearance of detainee, (6) comparison in detainee’s appearance at arrest and at time of trial, (7) allowing witnesses to come forward and assist in other arrests and solving crimes, (8) capturing a fugitive, and (9) showing whether the indictee took the charges seriously.

The court noted that “based on the purpose of the FOIA, there is little to suggest that disclosing booking photos would inform citizens of a government agency’s adequate performance of its function.” The court added that “while it is true that Interests 2-6 are legitimate public interests under the FOIA, there is little to suggest that releasing booking photos would significantly assist the public in detecting or deterring any underlying government misconduct.”

However, what is remarkable about the Tenth Circuit’s citations to other mug shot cases is just how refreshingly logical the quotations from the Detroit Free Press decision remain 15 years later. The Sixth Circuit noted that “the personal privacy of an individual is not necessarily invaded simply because that person suffers ridicule or embarrassment from the disclosure of information in the possession of government agencies.”

What resonates from the Detroit Free Press decision and is missing from the decisions going the other way and protecting mug shots is the recognition that finding oneself in an unfortunate situation that results in a public arrest, indictment, and subsequent court proceedings does not entitle an individual to expect that their public brush with the law should be swept under the rug because it embarrasses them and makes them feel uncomfortable.

Do we want to move towards a legal system where the existence of many criminal proceedings is kept secret because they embarrass the individuals accused and/or convicted? Such results are only several steps removed from a government policy that protects a graphic illustration of an individual’s intersection with the law.

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