Reporters Committee asks U.S. Marshals Service to explain latest statement on mug shots

The Reporters Committee for Freedom of the Press has written to the U.S. Marshals Service asking it to clarify its position on the release of federal booking photographs under the federal Freedom of Information Act. Specifically, the Reporters Committee inquired into future access policies within the geographic bounds of the Sixth Circuit where a federal appeals court ruled in 1996 that these mug shots are public documents. The letter was co-signed by 21 leading news media companies and organizations.

The Reporters Committee became concerned that recent conflicting court rulings on the issue in other judicial circuits may have now emboldened the Marshals Service to completely ignore the 1996 ruling requiring disclosure and unilaterally foreclose access nationwide.

The Marshals Service has and continues to deny FOIA requests for mug shots, citing the privacy rights of the individuals being processed. The sole exception is for requests originating in the Sixth Circuit (Michigan, Ohio, Kentucky and Tennessee), where the U.S. Court of Appeals found there was no recognizable FOIA privacy interest in such records and ruled that the Marshals Service cannot withhold mug shots on that basis. As a result, journalists must make FOIA requests for federal mug shots from within the Sixth Circuit, after which the released photos become generally available to all requestors.

The trigger for the Reporters Committee’s Jan. 4 letter was a footnote in a Department of Justice opposition brief filed in the U.S. Supreme Court in late December. The brief was a response to a request for review of a case from the Eleventh Circuit, which upheld the government’s right to withhold mug shots under FOIA due to privacy concerns. The footnote states, in part, that in light of the divisions between the circuit courts, “the Service will be able to reconsider its prior practice of granting mug-shot FOIA requests in the Sixth Circuit to facilitate further review by that court.”

“That statement immediately set off alarm bells for us,” said Reporters Committee Executive Director Lucy A. Dalglish. “While we have been working to demonstrate to the Marshals Service that its geographically selective release policy simply requires FOIA requestors to take the long way around to the same end, the Service apparently has been seeking ways to close the flow of information altogether.

“Not only does this directly contravene the president’s and attorney general’s directives on government transparency, but also it deliberately flouts a longstanding court directive in order to provoke a new legal challenge,” Dalglish added. “We hope that, at best, we are misreading the Service’s intentions but we believe significant clarification of the Marshal Service’s intent is needed.”

Also signing the Reporters Committee letter were: the American Society of News Editors; Association of Capitol Reporters and Editors; The Associated Press; Cable News Network, Inc.; California Newspaper Publishers Association; The E.W. Scripps Company; Gannett Co., Inc.; Hearst Corporation; Los Angeles Times; The McClatchy Company; National Press Photographers Association; The New York Times Company; Newspaper Association of America; The Newspaper Guild – CWA; OpenCourt/WBUR; The Newsweek/Daily Beast Company LLC; North Jersey Media Group Inc.; Radio Television Digital News Association; The Seattle Times Co.; Society of Professional Journalists; and Time Inc.

The Reporters Committee letter is posted online.

About the Reporters Committee for Freedom of the Press:

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.

(Photos: AP/U.S. Marshals Service)