Detroit Free Press, Inc. v. U.S. Dep’t of Justice, -- F.3d -- (6th Cir. 2016).
In a 9-7 en banc decision, the U.S. Court of Appeals for the Sixth Circuit reversed the lower courts’ ruling, holding individuals have a privacy interest in their booking photos for the purposes of Exemption 7(C) of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. In so doing, the Court overruled Circuit precedent established two decades ago in Detroit Free Press, Inc. v. Dep’t of Justice, 73 F.3d 93 (6th Cir. 1996) (“Free Press I”).
The FOIA requires federal agencies to make their records available to any requester unless the documents fall within the statutory exemptions. Exemption 7(C) allows agencies to refuse requests for “records or information compiled for law enforcement purposes” if public release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The burden rests on the agency. Free Press I held there is no privacy interest in booking photos in ongoing criminal proceedings. Following Free Press I, the United States Marshals Service (“USMS”) allowed booking photos to be released by requesters under the Sixth Circuit jurisdiction. Following opinions by the Tenth and Eleventh Circuits disagreeing with Free Press I, the USMS refused booking photos nationwide. This suit followed. Both the District Court and a Panel of the Sixth Circuit, bound by Free Press I, ordered the USMS to disclose the photos. The Sixth Circuit granted rehearing en banc.
Writing for the Court, Circuit Judge Deborah Cook relied heavily on U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). Reporters involved a request for a defendant’s rap sheet. In finding there is a privacy interest in rap sheets, the Supreme Court in Reporters required “balance[ing] the public interest in disclosure against the interest Congress intended the Exemption to protect.” Following the Supreme Court’s reasoning in Reporters, Judge Cook found that Exemption 7(C) protects citizens’ interest in avoiding disclosure of “[e]barassing and humiliating facts—particularly those connecting an individual to criminality.” Booking photos “fit squarely within this realm.”
To justify overruling a twenty-year precedent, Judge Cook explained the impacts booking photos have and new realities from modern technology. For example, Judge Cook highlighted that booking photos “convey guilt to the viewer.” This is why the Sixth Circuit disfavors showing juries booking photos in criminal trials. Booking photos also persist longer than before—“an idle internet search reveals the same booking photo that once would have required a trip to the local library’s microfiche collection.” Finally, Judge Cook cited the “online-reputation-management industry,” specifically websites that aggregate booking photos and remove them for a fee, as demonstrating a privacy interest.
The Sixth Circuit endorsed the “case-by-case” balancing requested by USMS. Because the FOIA is meant to provide understanding of the operations or activities of government, it may be inappropriate to disclose a private citizen’s information that reveals little or nothing about the agency’s conduct. The Sixth Circuit leaves open two methods to receive booking photos through the FOIA. First, where the public interest outweighs the individual privacy interest. Second, where the defendant waives her privacy interest in the booking photo.
Chief Judge Cole joined in full with the Court, but wrote a concurrence to emphasize two points. First, Exemption 7(C) “plainly extends to a private individual’s desire to avoid disclosure of personal details that may be humiliating, embarrassing, or painful.” Second, that the Court’s opinion does not foreclose a requester making a “meaningful showing of the significant public interest.” Instead, the opinion merely provides a “workable formula” for lower courts to balance the interest.
Circuit Judge Boggs dissented, joined by Circuit Judges Batchelder, Moore, Clay, Griffin, Stranch, and Donald. Judge Boggs argued that the Supreme Court looked to history, common law, and both state and federal practice to determine whether Congress intended to protect that privacy interest. Since the “rogue’s galleries” of early police forces, dangers people would have their likeness on public display—even if cleared of wrongdoing. Courts routinely rejected privacy interests in booking photos, even after the creation of an invasion of privacy tort. “[O]nce indicted, individuals become figures of public interest. Publishing their photographs is thus not an invasion of privacy.” The majority of state laws permit disclosure and the former federal practice was disclosure. Judge Boggs concluded that upon indictment and appearance in open court, there is no cognizable privacy interest in the booking photo. Even if, according to Judge Boggs, there was a privacy interest, the public has a strong interest in knowing whom the government is prosecuting.
Josh Gerstein of Politico provides a summary of the case. Noah Feldman in Bloomberg argues that democracy demands government actions be open to scrutiny, even at the cost of permanent embarrassment. Feldman recognizes the baggage a booking photo can have on someone, but insists that the photos are central to informing the public an arrest was made. Additionally, the USMS can still voluntarily disclose the booking photo—the ruling only limited “what the government must disclose.”
Filippo Raso is a rising 2L at Harvard Law School and a summer clerk at the Electronic Privacy Information Center (EPIC).