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Media Alerts - Sixth Circuit overrules itself, denies Detroit Free Press's FOIA request for police officers' booking photos
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August 1, 2016
  Sixth Circuit overrules itself, denies Detroit Free Press's FOIA request for police officers' booking photos
Case: Detroit Free Press v. United States

Area of law: Freedom of Information Act

Issue: Are newspapers entitled to criminal defendants' booking photos under the Freedom of Information Act?

Brief summary: In 1996, the Sixth Circuit held that the Detroit Free Press was entitled to copies of a criminal defendant's booking photos under the Freedom of Information Act (FOIA), citing the lack of a privacy interest in the photos. Recently, the Free Press sought booking photos of four Michigan police officers who were arrested on bribery and drug-conspiracy charges. The U.S. Marshal Service denied the Free Press's request. The district court ordered disclosure. The Sixth Circuit reversed, overruling its 1996 decision and holding that a criminal defendant does have a privacy interest in his or her booking photos.

Extended summary: Relying on the Sixth Circuit's 1996 holding (Free Press I) that newspapers are entitled to copies of a criminal defendant's booking photos, the Detroit Free Press made a FOIA request to the U.S. Marshal Service seeking booking photos of four Michigan police officers accused of bribery and drug conspiracy.

Because of the Free Press I decision, the Marshal Service had a bifurcated policy for handling FOIA requests for booking photos. It honored requests coming from within the Sixth Circuit but denied requests coming from outside the Sixth Circuit. This continued until the Tenth and Eleventh Circuits disagreed with Free Press I. Those circuits held that booking-photo requests could be denied. So based on the Tenth and Eleventh Circuit decisions, the Marshal Service began denying all FOIA requests for booking photos, including the Free Press's request. The Free Press sued to compel the Marshal Service to release the officers' booking photos.

The district court granted summary judgment in the Free Press's favor. On appeal, the Sixth Circuit, sitting en banc, reversed, holding that individuals "enjoy a non-trivial privacy interest in their booking photos." Therefore, the Court "overrule[d] Free Press I."

The Sixth Circuit noted that under FOIA, the government must operate under the general philosophy that it will make full disclosure of its records. As such, federal agencies must make their records promptly available to any person who asks for them as long as no exemption applies. But an agency may withhold or redact information based on nine statutory exemptions. Here, the Sixth Circuit believed that an exemption did apply: exemption 7(C), which protects against disclosures of information "compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

Under exemption 7(C), the Court reasoned, booking photos were information that had been compiled for law enforcement, and disclosure of these photos could reasonably result in an unwarranted invasion of personal privacy. The Court observed that once released, booking photos would likely be widely circulated on the internet, "hampering the depicted individual's professional and personal prospects." Given the privacy interests at stake, the U.S. Marshal Service could lawfully deny the Free Press's request for booking photos.

Dissent: The dissent, authored by Judge Boggs, argued that in the 20 years since Free Press I was decided, neither the Supreme Court nor Congress chose to correct the Sixth Circuit's 1996 reading of FOIA. As such, the Sixth Circuit's interpretation was still valid. And the dissent feared that the majority's decision would obscure government's most coercive functions: the powers to detain and accuse a suspected criminal. It noted that police "mug shots" give the public insight into police conduct and practices, noting that the photos can even help the public discover cases of police misconduct. And the dissent believed that, at the cost of open government, the privacy offered by the majority's holding is minimal and illusory.

Link to the case: http://www.opn.ca6.uscourts.go...s.pdf/16a0164p-06.pdf

Panel: COLE, Chief Judge; GUY, BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Circuit Judges.

Date of issued opinion: July 14, 2016

Docket number: 14-1670

Decided: July 14, 2016

Counsel: Steve Frank, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Robert M. Loeb, ORRICK, HERRINGTON & SUTCLIFFE LLP, Washington, D.C., for Appellee. ON BRIEF: Steve Frank, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Robert M. Loeb, Thomas M. Bondy, ORRICK, HERRINGTON & SUTCLIFFE LLP, Washington, D.C., Paul R. McAdoo, AARON & SANDERS PLLC, Nashville, Tennessee, Brian P. Goldman, Cynthia B. Stein, ORRICK, HERRINGTON & SUTCLIFFE LLP, San Francisco, California, Herschel P. Fink, DETROIT FREE PRESS, INC., Detroit, Michigan, for Appellee. Daniel J. Klau, MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP, Hartford, Connecticut, David Marburger, MARBURGER LAW LLC, Cleveland, Ohio, for Amici Curiae.
Author of opinion: COOK, J., delivered the opinion of the court in which COLE, C.J., and GUY, GIBBONS, ROGERS, SUTTON, McKEAGUE, KETHLEDGE, and WHITE, JJ., joined. COLE, C.J. (pp. 10 - 11), delivered a separate concurring opinion. BOGGS, J. (pp. 12 - 23), delivered a separate dissenting opinion in which BATCHELDER, MOORE, CLAY, GRIFFIN, STRANCH, and DONALD, JJ., joined.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Edited: 08/01/2016 at 11:14 AM by Mark Cooney

    Posted By: Mark Cooney @ 08/01/2016 11:07 AM     6th Circuit  

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