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Federal mug shots available once again in Sixth Circuit

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  1. Freedom of Information

NEWS MEDIA UPDATE   ·   SIXTH CIRCUIT   ·   Freedom of Information   ·   Aug. 17, 2005

Federal mug shots available once again in Sixth Circuit

  • A newspaper’s lawsuit has forced the U.S. Marshals Service to reverse its agency directive that a Sixth Circuit ruling requiring the release of mug shots under the Freedom of Information Act should be ignored, even in the Sixth Circuit.

Aug. 17, 2005  ·   Responding to a lawsuit by the Akron Beacon Journal, a U.S. attorney told the federal district court in Akron, Ohio, last week that the U.S. Marshals service has issued a new Freedom of Information Act directive to marshals in the four states in the Sixth Circuit that requires disclosure of mug shots of federal defendants in line with a 1996 federal appeals court decision.

The change means that reporters in the Sixth Circuit — Kentucky, Ohio, Michigan and Tennessee — will be able to again get mug shots of federal defendants.

Beacon Journal business writer Gloria Irwin filed a FOI Act request in March with the U.S. Marshals Service in Cleveland for mug shots of two Akron businessman who pleaded guilty to masterminding a real estate scam by buying low-priced homes and using false affidavits to resell them to investors at inflated prices.

The agency denied the records request based on an August 2004 memorandum from its general counsel in Washington, D.C., that media or other requests for mug shots should be denied except where disclosure would help in the capture of fugitives.

That 2004 memorandum followed changes in the Department of Justice’s FOI Guide following a U.S. Supreme Court decision that year that pictures taken at the scene of Deputy White House Counsel Vince Foster’s death could be withheld under the privacy arm of the law enforcement exemption to the act. The high court’s ruling prompted the department to direct broad use of Exemption 7c.

The 2004 Justice Department guidance said that even photographs taken in a public place “can invite harassment, stigmatization and overwhelming media scrutiny.” In light of the Supreme Court’s decision and what the department called the “overwhelming” weight of case law, the Sixth Circuit decision that mug shots can be released under the FOI Act “should no longer be regarded as authoritative even within the Sixth Circuit,” the department wrote in its guide.

The U.S. Court of Appeals in Cincinnati (6th Cir.) had ruled in 1996 that Detroit Free Press reporter Joe Swickard could obtain mug shots of eight defendants in cases involving bookmaking and money-laundering at the Wolverine Golf Club near Detroit.

The Free Press has a current case for mug shots of criminal defendants before the federal court in Detroit and has begun negotiation with the Department of Justice for disclosure of those photographs in line with the Akron directive coming out of the Akron case.

Karen Lefton, in-house counsel for the Beacon Journal, said that the government changed its directive after preliminary talks before the judge.

Getting the mug shots is important to a news story, she said. People want to know what the defendant looks like. It also means the story is going to get better play in the newspaper. “I don’t get that you have some privacy in your visage, especially if you are a federal defendant,” she said.

Other issues in the Akron FOI case have not been completely resolved; however, a ruling is expected in the near future.

(Akron Beacon-Journal v. U.S. Marshals Service; Media counsel: Karen Lefton, Akron, Ohio)RD

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