A deeply divided en banc panel of the U.S. Court of Appeals for the Sixth Circuit held that federal authorities can withhold criminal booking photos requested by the public pursuant to the Freedom of Information Act (“FOIA”).  The court cited privacy interests in the digital age as the main driver of its holding.  The Detroit Free Press initiated the lawsuit after the U.S. Marshals Service refused the newspaper’s request for the booking photos of four Michigan police officers charged with public corruption crimes.  The Sixth Circuit’s decision overturned a 20-year-old precedent by the same court that found no privacy right for individuals depicted in mugshots.

In reversing its 1996 decision, the Sixth Circuit relied on FOIA exemption 7(C).  Under FOIA, the government is required to disclose records to the public unless the records fall into one of nine FOIA exemptions.  Exemption 7(C) authorizes federal agencies to withhold requested records for “law enforcement purposes” when their public release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”  When an agency withholds records pursuant to Exemption 7(C), however, the public can still gain access to the records by showing that the public interest in disclosure outweighs any privacy interests.   

Authored by Circuit Judge Deborah L. Cook, the majority opinion found that criminal mugshots “fit squarely within the realm of embarrassing and humiliating information,” which establishes a “non-trivial privacy interest in the booking photos.”  The court found that “[i]n 1996, this court could not have known or expected that a booking photo could haunt the depicted individual for decades.”  “Experience,” wrote Judge Cook, “has taught us otherwise.”  The court, therefore, found that the privacy interest of arrested individuals outweighed any public interest in the photos.  Nine judges signed onto the majority opinion, and seven signed onto the dissent.

The dissent, authored by Circuit Judge Danny J. Boggs, argued that the majority’s decision “undermine[d] the public confidence that is essential to any effective criminal justice system.”  Instead of preventing the disclosure of mugshots, the dissent argued that a balance between privacy concerns and the free flow of information could be achieved by other means.   
 
Prior to the Sixth Circuit’s reversal, there was a circuit split as to whether the public had automatic access to the booking photos of criminal defendants under FOIA.  In 2012, the Sixth Circuit became the lone holdout: Sixth Circuit-covered jurisdictions of Michigan, Ohio, Kentucky, and Tennessee allowed the public unfettered access to mugshots; the rest of the country could not access photos without overcoming the privacy interests of arrested individuals.  Also in 2012, however, the U.S. Marshal Service adopted a nationwide policy to refuse all requests for federal criminal mugshots.  Several lawsuits by the Detroit Free Press ensued. 

Despite the narrowness of the majority’s victory, the Sixth Circuit’s decision puts an end to the circuit split . . . at least for now.  Free press advocates hope to appeal to the U.S. Supreme Court.