Detroit Free Press v. DOJ, No. 14-1670, 2016 WL 3769970 (6th Cir. July 14, 2016) (Cook, J.)
Re: Request for booking photographs of four Michigan police officers
Disposition: Overruling Free Press I; reversing and remanding district court's grant of requester's motion for summary judgment
- Exemption 7(C): The Court of Appeals for the Sixth Circuit holds that "individuals have a privacy interest in preventing disclosure of their booking photos under Exemption 7(C)." "Of course, some public interests can outweigh the privacy interest, but Free Press I wrongly set the privacy interest at zero." "[The court] overrule[s] Free Press I, reverse[s] the grant of summary judgment, and remand[s] to the district court for proceedings consistent with this opinion." First, the court finds that "[i]ndividuals enjoy a non-trivial privacy interest in their booking photos, and [it] overrule[s] Free Press I’s contrary holding[,]" "that criminal defendants lack any privacy interest in the photos." The court finds that "[b]ooking photos – snapped 'in the vulnerable and embarrassing moments immediately after [an individual is] accused, taken into custody, and deprived of most liberties' – fit squarely within this realm of embarrassing and humiliating information." "More than just 'vivid symbol[s] of criminal accusation,' booking photos convey guilt to the viewer." Additionally, the court finds that "[a] disclosed booking photo casts a long, damaging shadow over the depicted individual." Responding to the requester's arguments, the court finds that arguments concerning the Constitution, "common law and legal traditions," and "[a] mixed bag of state privacy laws cannot extinguish FOIA personal-privacy protections." Second, the court "agree[s] with the USMS and adopt[s] a case-by-case approach [to balancing the privacy interest against the public's interest in disclosure], elucidating the public interest at issue."
Chief Judge Cole, "writ[ing] separately only to emphasize two points touched upon by the majority," states that "[f]irst, Exemption 7(C) of the Freedom of Information Act . . . plainly extends to a private individual's desire to avoid disclosure of personal details that may be humiliating, embarrassing, or painful." "Mugshots fit the bill." "Mugshots now present an acute problem in the digital age: these images preserve the indignity of a deprivation of liberty, often at the (literal) expense of the most vulnerable among us." "Second, [Chief Judge Cole] understand[s] the majority's approach as simply 'providing a workable formula which encompasses, balances, and protects all interests.'" "Today’s opinion, as [Chief Judge Cole] read[s] it, does not foreclose the possibility that, in the appropriate case, a requester might make a meaningful showing of the 'significant public interest' in 'reveal[ing] the circumstances surrounding an arrest and initial incarceration.'" "The majority rightly gives the lower courts the chance to balance, in the first instance, the equally important values of public disclosure and personal privacy." "Neither is abrogated."
Judge Boggs, writing to dissent, states that "[o]pen government is too dear a cost to pay for the mirage of privacy that the majority has to offer." Judge Boggs states that "it appears that the common law did not, and does not now, recognize an indicted defendant's interest in preventing the disclosure of his booking photograph during ongoing criminal proceedings." Judge Boggs also states that "state and federal practice" supports his position and that "[a]n individual who has already been indicted, and who has already appeared in open court, has no cognizable privacy interest in his booking photograph because neither he nor society expects that it will remain hidden from public view." Judge Boggs opines that there are "weighty public interests that disclosure serves." "Public oversight is essential in criminal proceedings, in which the government wields the power to place the individual in jeopardy of imprisonment." "Measured against the photographed individual’s meager interest in avoiding the disclosure of matters that are largely available in the public domain, . . . the public's interest in knowing whom the government is prosecuting is strong."