Appeals court rules federal mug shots can be kept secret

The U.S. Court of Appeals in Denver (10th Cir.) ruled today that the federal government does not have to release mug shots under the federal Freedom of Information Act in World Publishing Company v. Department of Justice. The court's decision brings to three the number of federal appeals courts to confront the issue.

In 1996, the U.S. Court of Appeals in Cincinnati (6th Cir.) held in Detroit Free Press, Inc. v. Department of Justice that federal mug shots were public under FOIA. A contrary ruling was handed down by the U.S. Court of Appeals in Atlanta (11th Cir.) last year in Karantsalis v. Department of Justice. The U.S. Supreme Court recently denied to hear Karantsalis' appeal.

Today's ruling affirmed a lower court’s decision that denied a FOIA request by the Tulsa World, for copies of mug shots of six pretrial detainees from the U.S. Marshals Service. World Publishing Company publishes the Tulsa World.

The court found that World Publishing Company’s argument that disseminating the mug shots would serve a variety of public oversight interests, like determining the arrest of the correct detainee or detecting disparate treatment and abuse, generally “would not further the purpose of the FOIA.”

“There is little to suggest that disclosing booking photos would inform citizens of a government agency’s adequate performance of its function. We agree with the district court that ‘disclosure of federal booking photographs is not likely to contribute significantly to public understanding of federal law enforcement operations or activities.'” the court said.

The court found that mug shots could be withheld from release under FOIA exemption 7(C). That exemption states that “records or information compiled for law enforcement purposes" can be withheld from disclosure if the release "could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

In examining this question, the court applied a three-part test to determine if the information was exempt. The first part of the test determines if the records at issue were gathered for law enforcement purposes. That mug shots met this initial inquiry was undisputed.

The second part of the test determines if there is a recognizable privacy interest in the record.

World Publishing Company argued that mug shots are generally available at state law enforcement agencies and that people who are arrested expect that their mug shot will be made available, said J. Schaad Titus, attorney for World Publishing Company.

However, the court stated that “the actions of state law enforcement agencies in disclosing booking photos does not mean that USMS booking photos are generally available to the public” and that those arrested maintain some expectation of privacy as such records are not generally disseminated to the public by the government. The court also found that mug shots are a unique kind of photograph that can have stigmatizing effects, further supporting a need to be particularly sensitive to privacy concerns.

The final part of the test balances the privacy interest against the public’s interest in disclosure. Tulsa World argued that the mug shots served a public interest. The court concluded that the privacy interest outweighs the public’s interest because disclosure of the mug shots would not reveal whether the government is functioning properly, according to the decision.

In a footnote, the court indicated it may be willing to find an overriding public interest in disclosure if a specific case presented "compelling evidence" that "illegal" activity had occurred. In such circumstances, the release arguably could help contribute to the public understanding of government operations.