Reporters Committee argues for release of federal mugshots under FOIA

Adam Marshall | Freedom of Information | Commentary | January 23, 2015

The Reporters Committee for Freedom of the Press, along with 36 news organizations, filed an amicus brief last week with the U.S. Court of Appeals (6th Cir.) arguing that mugshots taken by the U.S. Marshals Service must be released to the public under the Freedom of Information Act.

The brief argues that not only is there no privacy right implicated by releasing photos of persons who have been arrested, indicted, and appeared in open court, but that there is a powerful interest in ensuring the criminal justice system remains open to the public.

The United States government has long attempted to impede public access to mugshots of persons arrested by the Marshals Service. Its central argument has been that disclosure of such photographs violates the privacy rights of the arrestees, and therefore the photographs should be withheld under Exemption 7(C) of FOIA.

In 1996, the Detroit Free Press challenged this policy and won a lawsuit in the 6th Circuit that forced the Marshals Service to release the photographs. In that case, the court determined that no privacy right was implicated by the release of photos of persons who have been arrested, indicted, and appeared in open court.

After the ruling the Marshals Service largely persisted in its attempts to keep the public in the dark by only complying with FOIA requests for mugshots from persons in the geographic territory of the Sixth Circuit, which includes Kentucky, Michigan, Ohio, and Tennessee. Reporters based elsewhere had to find someone in those states to file a FOIA request on their behalf. As the Reporters Committee has previously noted, this policy imposed ridiculous barriers on journalists for no reason other than to deter public access.

Unfortunately, two other federal courts of appeal that took up the issue after the Sixth Circuit decided that the photos did implicate some privacy interests, and held that the government did not have to release mugshots within their jurisdictions.

In late 2011, it began to appear that the government wanted to ignore the Sixth Circuit ruling, despite the fact that it had not been overturned. A footnote in a government brief filed in the 11th Circuit hinted at the fact that the government intended to “reconsider” granting FOIA requests for mugshots originating within the 6th Circuit.

In January 2012, the Reporters Committee asked the Marshals Service to clarify its position on FOIA requests for mugshots, but it refused to comment. Then, in December 2012, a newly issued Marshals Service memo essentially stated the government would no longer recognize the Sixth Circuit precedent. In January 2013, the Reporters Committee, joined by 37 media organizations, wrote to Attorney General Eric Holder asking him to overturn the policy because it was inconsistent with existing law, but the government persisted in refusing to release the photos even where it was required to do so.

Last spring, the Detroit Free Press once again sued the Marshals Service in federal court to enforce its right to access federal booking photographs under FOIA. The district court agreed that the photos must be released, and held for the newspaper under existing precedent. The government appealed, and the case is now before Sixth Circuit.

The friend-of-the-court brief filed by the Reporters Committee and a broad coalition of news media organizations argues that mugshots created by the Marshals Service must be released for several reasons. First, the brief argues that “[s]ince their inception, mugshots have been open to public inspection. Neither constitutional nor common law recognizes a privacy interest in photographs of persons who have been arrested and indicted, and appeared in open court.” The Supreme Court has specifically stated that these sources of law are instructive in determining what kind of privacy is protected by Exemption 7(C). The brief specifically points out that mugshots are open or presumably open to the public under the laws of at least 40 states, which is evidence that they should not be considered private. It also calls into question the government’s belief in the privacy interest of arrestees, as the Marshals Service and other agencies such as the ATF, FBI, and DEA have frequently published mugshots online, as well as in books, press releases, and videos.

The second part of the brief concerns the public interest in the availability of mugshots. Under courts’ interpretations of Exemption 7(C), even if there is a privacy interest in requested government records, that privacy interest must be balanced against the public interest in information about what the government is doing. The brief argues there are many reasons it is important for the public to have access to mugshots. In addition to being a staple of news reports on the daily activities of law enforcement, mugshots can be useful in deterring cases of arrests based on mistaken identity, which are unfortunately fairly common. Furthermore, “[a]llowing access to mugshots can also alert the public to either abusive law enforcement officers, or clear them of suspicion of impropriety”, as they provide evidence of the physical state of the arrestee at a certain moment in time.

More broadly, the brief argues that a “publicly accountable criminal justice system is a fundamental tenet of our nation’s system of governance, and the press’s ability to report on the criminal justice system is essential to ensuring that accountability.” It notes that photographs of arrestees are an important piece of information that helps the press perform their role in informing the public about what their government is up to. This is true not only with respect to current law enforcement actions, but also with regard to historical events. Mugshots tell the public volumes about crucial moments in American history, as seen in the photos of Rosa Parks, Martin Luther King Jr., Al Capone, Lee Harvey Oswald, and O.J. Simpson. For example, the booking photo of Rosa Parks “serves as a window into the discriminatory actions of the government at the time it was taken. It sends a powerful message about the nature of the laws that precipitated Ms. Parks’ civil disobedience, in addition to serving as a record of the fact that she was arrested by the government for refusing to obey those laws.”