Contributor, The Volokh Conspiracy

Today the U.S. Court of Appeals for the 6th Circuit upheld a request for booking photographs of criminal defendants sought under the Freedom of Information Act (FOIA) in Detroit Free Press v. USDOJ.  Existing circuit precedent mandated this result. In their brief per curiam opinion, however, Judges Guy, Cook, and McKeague explained why they believe full 6th Circuit should reconsider this holding.  Here’s an excerpt.

Although we must follow Free Press I, we urge the full court to reconsider whether Exemption 7(C) applies to booking photographs. In particular, we question the panel’s conclusion that defendants have no interest in preventing the public release of their booking photographs during ongoing criminal proceedings.

Exemption 7(C) protects a non-trivial privacy interest in keeping “personal facts away from the public eye,” particularly facts that may embarrass, humiliate, or otherwise cause mental or emotional anguish to private citizens. Booking photographs convey the sort of potentially embarrassing or harmful information protected by the exemption: they capture how an individual appeared at a particularly humiliating moment immediately after being taken into federal custody. Such images convey an “unmistakable badge of criminality” and, therefore, provide more information to the public than a person’s mere appearance.

A criminal defendant’s privacy interest in his booking photographs persists even if the public can access other information pertaining to his arrest and prosecution. Individuals do not forfeit their interest in maintaining control over information that has been made public in some form.

Further, criminal defendants do not forfeit their interest in controlling private information while their cases remain pending. Even if an individual possesses a heightened interest in controlling information about his past entanglements with the criminal justice system, it does not follow that he has zero interest in controlling what information becomes public during ongoing proceedings. Moreover, booking photographs often remain publicly available on the Internet long after a case ends, undermining the temporal limitations presumed by Free Press I.

[citations omitted]