The United States 6th Circuit Court of Appeals ruled on July 14, 2016 in a 9-7 decision that criminal mug shots can be withheld by federal authorities in the case of Detroit Free Press, Inc. v. United States Department of Justice.
This decision overturns the 6th Circuit Court of Appeals’ 1996 decision – a case where the Detroit Free Press was also the plaintiff– which stated that federal mug shots were not exempt from the Freedom of Information Act due to privacy interests. While the July 14 ruling doesn’t completely prevent the release of mug shots, it allows for an evaluation on a case-by-case basis of whether or not privacy interests outweighs public interest in their disclosure.
Writing for the majority, Judge Deborah Cook stated that “A disclosed booking photo casts a long, damaging shadow over the depicted individual…Today, an idle internet search reveals the same booking photo that once would have required a trip to the local library’s microfiche collection.”
Detroit Free Press, Inc. v. United States Department of Justice began after the Detroit Free Press sued for access to mug shots in 2013 of four police officers that were charged with drug conspiracy and bribery. Following two separate U.S. federal appeals courts rulings that stated that privacy concerns and interests would allow mug shots to be withheld from the public, the U.S. Marshals Service would no longer release mug shots in the 6th Circuit states of Kentucky, Ohio, Tennessee, and Michigan.
Writing for the dissent, Judge Danny Boggs stated that:
“Even if an indicted individual has a privacy interest in his booking photograph, whatever invasion of privacy disclosure occasions is not ‘unwarranted’ in light of the weighty public interests that disclosure serves…The majority’s emphasis on embarrassment misses the point. Information can be both public and embarrassing...and the fact that a record is embarrassing does not answer the question whether an individual can reasonably expect that record to remain private.”
The Detroit Free Press’ attorney Herschel Fink said that he and his client are still considering appealing the decision to the U.S. Supreme Court. "People have a right to know who the government is prosecuting, and for what. Booking photos tell the 'who' story in a way that a (defendant's) name alone can't. They literally put a face on the government's prosecution, all the better for the public to see what the government is up to," said Fink.