Contributor, The Volokh Conspiracy

The U.S. Court of Appeals for the Sixth Circuit, sitting en banc in Detroit Free Press v. Department of Justice, has concluded that individuals have sufficient privacy interests in their police booking photos to preclude their release under the Freedom of Information Act. The decision, which produced an unusual lineup among the court’s justices, is available here.

Judge Cook wrote for the majority, joined by Chief Judge Cole and Judges Guy, Gibbons, Rogers, Sutton, McKeague, Kethledge and White. Her opinion begins:

In 1996, we held that the Freedom of Information Act (FOIA), 5 U.S.C. § 552, required the release of booking photos of criminal defendants who have appeared in court during ongoing proceedings, finding that criminal defendants lack any privacy interest in the photos. Detroit Free Press, Inc. v. Dep’t of Justice (Free Press I), 73 F.3d 93 (6th Cir. 1996). Twenty years and two contrary circuit-level decisions later, we find Free Press I untenable. Individuals enjoy a non-trivial privacy interest in their booking photos. We therefore overrule Free Press I.

Her opinion ends:

In 1996, this court could not have known or expected that a booking photo could haunt the depicted individual for decades. See Free Press I, 73 F.3d at 97 (finding that, unlike booking photos, rap sheets include information “that, under other circumstances, may have been lost or forgotten”). Experience has taught us otherwise. As the Tenth and Eleventh Circuits recognize, 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. We overrule Free Press I, reverse the grant of summary judgment, and remand to the district court for proceedings consistent with this opinion.

Chief Judge Cole wrote a separate concurring opinion as well.

Judge Boggs wrote a dissent, joined by Judges Batchelder, Moore, Clay, Griffin, Stranch and Donald. His opinion begins:

More than twenty years ago, this court determined that the Freedom of Information Act, a federal statute dedicated to open government, requires the release of federal indictees’ booking photographs. The Supreme Court did not correct our reading, and neither did Congress. Nevertheless, today’s majority reverses that determination, citing as justification only a vague privacy interest in inherently non-private matters. Today’s decision obscures our government’s most coercive functions—the powers to detain and accuse— and returns them to the shadows. Open government is too dear a cost to pay for the mirage of privacy that the majority has to offer.

The dissent concludes:

I am not unaware of the consequences of releasing booking photographs in the Internet Age. Ever since the nineteenth century, booking photographs have proven to be a source of discomfort to those depicted. . . . But today’s decision does nothing to prohibit DOJ from using its broad discretion to release booking photographs when it chooses. Nor does today’s decision do anything to protect the likenesses of those arrested by state authorities, the majority of which disclose booking photographs to the media upon request. . . . All that today’s decision does is provide DOJ with a tool to selectively shield itself from public scrutiny.

It is possible that other means could be used to achieve a sensible balance between reputational concerns and the free flow of public information. See, e.g., Act of May 6, 2013, § 1, 2013 Ga. Laws 613, 614 (requiring website owners to remove booking photographs of those acquitted of criminal activity); Taha v. Bucks County, 9 F. Supp. 3d 490, 494 (E.D. Pa. 2014) (holding that individual depicted on “bustedmugshots.com” with the “legend ‘BUSTED!’ in large bold letters over his mugshot” could maintain state-law “false light” tort claim where individual’s arrest record had in fact been expunged). But today’s decision, which deprives the public of vital information about how its government works and does little to safeguard privacy, is not the correct answer.

I blogged on the original panel decision here.