Tenth Circuit Rejects Newspaper's FOIA Request for Mug Shots
The U.S. Court of Appeals for the Tenth Circuit affirmed a district court’s ruling that a newspaper was not entitled to booking photographs from the U.S. Marshals Service (“USMS”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The Tenth Circuit found that the government could withhold the photos under a FOIA exemption for disclosures that would constitute an unwarranted invasion of privacy. Other circuits have ruled similarly, although the Sixth Circuit has found that such photos are not exempt.
Newspaper Requests Booking Photos
World Publishing Company, publisher of the Tulsa World newspaper, requested booking photos (popularly called “mug shots”) of six pre-trial detainees from the USMS under the FOIA. The government refused to disclose the photos, citing FOIA Exemption 7(C), which exempts “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . .” World Publishing at 3 (quoting 5 U.S.C. § 552(b)(7)(C)).
As the court explained, FOIA was enacted to facilitate public scrutiny of federal government agencies while providing some exceptions from disclosure, which are narrowly construed. The government has the burden of proving that an exemption applies. To this end, courts have applied a three-part test to determine whether Exemption 7(C) applies, analyzing if (1) the information was gathered for a law-enforcement purpose, and (2) there is a personal privacy interest at stake. If these factors apply, then the court must (3) balance the privacy interest against the public interest in disclosure. Id. at 3–4 (citing Prison Legal News v. Executive Office for U.S. Attorneys, 628 F.3d 1243, 1247–48 (10th Cir. 2011) and DOJ v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 776 (1989)). The newspaper challenged the district court’s application of the second and third factors.
Circuit Split on FOIA Applied to Booking Photos
The court noted a circuit split regarding disclosure of booking photos. In Reporters Committee the U.S. Supreme Court held that Exemption 7(C) exempted disclosure of FBI criminal history summaries, (“rap sheets”) even though much of the information was public record and the affected individuals had been convicted. The Eastern District of Louisiana held that the subject of a booking photo had a protectable privacy interest under the FOIA, noting that “Mug shots in general are notorious for their visual association of the person with criminal activity. [ . . . ] [a]s in the cliché, a picture is worth a thousand words. For that reason, a mug shot’s stigmatizing effect can last well beyond the actual criminal proceedings. . . . A mug shot preserves, in its unique and visually powerful way, the subject individual’s brush with the law for posterity.” World Publishing at 5–6 (quoting Times Picayune Publishing Corp. v. DOJ, 37 F. Supp. 2d 472, 477 (E.D. La. 1999) (emphasis added by the court)).
The court observed that the Sixth Circuit has departed from other circuits with a contrary holding in Detroit Free Press, Inc. v. DOJ, 73 F.3d 93, 97 (6th Cir. 1996). In that case the court wrote that release of booking photos in an “in an ongoing criminal proceeding, in which the names of the defendants have already been divulged and in which the defendants themselves have already appeared in open court” does not implicate any privacy rights. Id. at 6 (quoting Detroit Free Press,. 73 F.3d at 97.) The Tenth Circuit observed that the “Sixth Circuit is the only circuit to conclude that there is no privacy interest in a booking photo given ongoing and public criminal proceedings.” Id. at 6-7.
The Eleventh Circuit, on the other hand, found that “mug shots carry a clear implication of criminal activity. [ . . . ] a booking photograph is a unique and powerful type of photograph that raises personal privacy interests distinct from normal photographs. A booking photograph is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt,” and therefore the photos were covered by the exemption. Id. at 7 (quoting Karantsalis v. U.S. DOJ, 635 F.3d 497, 503 (11th Cir. 2011)).
World Publishing argued that booking photos are generally available from state law enforcement agencies, lessening any privacy interest in such photos. The Tenth Circuit observed that this did not mean that booking photos from the USMS, a federal agency, were generally available. The court took note of “vivid and personal portrayal of a person’s likeness in a booking photograph,” and held that detainees have a privacy interest in their booking photos.
Balancing Test Favors Mug Shot Privacy
The court balanced the individual privacy interests in booking photos against the public interest served by disclosure. In Reporters, the Supreme Court stressed the importance of disclosing “[o]fficial information that sheds light on an agency’s performance of its statutory duties. . . .” while noting that the purpose of the FOIA “is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct.” World Publishing at 10 (quoting Reporters Committee, 489 U.S. at 773 (emphasis added by the court)).
The newspaper argued that several public interests would be served by disclosure, such as detecting ethnic profiling in arrests, disparate treatment, or police abuse. The court was not persuaded, observing that “there is little to suggest that disclosing booking photos would inform citizens of a government agency’s adequate performance of its function” or “significantly assist the public in detecting or deterring any underlying government misconduct.” Moreover, “There is also little to indicate that the release of booking photos would allow the public to detect racial or ethnic profiling without more information, and profiling has not been alleged here.” Id. at 13. The court concluded that because the newspaper’s request would not further the purpose of FOIA, the individuals’ privacy interest in the booking photos outweighed the public interest in disclosure. The court therefore affirmed the trial court’s ruling.
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