6th Cir.

Sixth Circuit limits access to federal mug shots

Sophie Murguia | Freedom of Information | News | July 15, 2016
July 15, 2016

Federal authorities can withhold mug shots from release due to privacy concerns, the United States Court of Appeals for the Sixth Circuit ruled Thursday.

The court, sitting en banc, overturned its 1996 decision, which held that there was no privacy interest to justify exempting federal mug shots from the Freedom of Information Act. The new ruling will not necessarily keep all mug shots from being released, but it will require a case-by-case consideration of whether the public interest in disclosure outweighs privacy interests.

“A disclosed booking photo casts a long, damaging shadow over the depicted individual,” Judge Deborah Cook wrote for the majority in the 9-7 decision.

The majority argued that the digital age has made privacy concerns even more pressing.

XI. Cameras and other technology in the courtroom


6th Cir.

The Sixth Circuit adheres to Federal Rule of Criminal Procedure 53, prohibiting photographing or broadcasting judicial proceedings. See Conway v. United States, 852 F.2d 187 (6th Cir.), cert. denied, 109 S.Ct. 370 (1988). 

A. Authorization


6th Cir.

E. Discovery materials and motions


6th Cir.

The Sixth Circuit has permitted access to discovery materials when there was a public interest, e.g. the 1970 Kent State massacre, Krause v. Rhodes, 671 F.2d 212 (6th Cir. 1982), yet restricted access for “good cause” such as a need to protect the privacy rights of non-parties. See Courier-Journal v. Marshall, 828 F.2d 361 (6th Cir. 1987). 

F. Pretrial motions and records


6th Cir.

The Sixth Circuit recognizes a qualified right of access to documents and records pertaining to pretrial conflicts of interest and judge recusal proceedings. See United States v. Presser, 828 F.2d 340 (6th Cir. 1987); United States v. Presser, 828 F.2d 330 (6th Cir. 1987) (“Presser II”).

D. Warrants, wiretaps and related materials


6th Cir.

The Court of Appeals for the Sixth Circuit applies the “experience and logic” test of Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) when reviewing the right of access to search warrants and related materials and proceedings. The Court does not recognize a First Amendment right of access to these documents, though it acknowledges that a common law right may apply in some cases. See, e.g., In re Search of Fair Finance, 692 F.3d 424 (6th Cir. 2012).

Reporters Committee argues for release of federal mugshots under FOIA

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

Detroit Free Press v. U.S. Department of Justice

January 16, 2015

The Detroit Free Press sued the DOJ for the release of mugshots taken by the U.S. Marshals Service under the Freedom of Information Act. The trial court held for DFP, and the government appealed to the 6th Circuit. Our brief argues that neither constitutional nor common law recognizes a privacy interest in photographs of persons who have been arrested and indicted, and appeared in open court, specifically noting that mugshots are open or presumably open to the public under the laws of at least 40 states. The brief also argues that even if there is a privacy interest in mugshots, it is outweighed by the public interest in their disclosure.

Sixth Circuit: TheDirty.com not liable for user's posts, even when commentary added

Cindy Gierhart | Libel | News | June 17, 2014
June 17, 2014

Nik Richie, operator of the website TheDirty.com, cannot be held liable for potentially defamatory remarks made by a third-party poster on his website, according to a Sixth Circuit Court of Appeals ruling released Monday.

The court reversed a district court ruling that held Richie could be liable because he “encouraged” defamatory statements and then “adopted” the statements by adding his own comments to the posts.

The court describes TheDirty.com as “a user-generated, online tabloid” where users can post gossip about anyone, often private individuals.

Appeals court tightens public access to search warrants

Rob Tricchinelli | Secret Courts | News | September 13, 2012
September 13, 2012

A federal appellate court held last week that there is no First Amendment right for the media to access police and court documents filed in connection with search warrant proceedings.