From the Fall 2004 issue of The News Media & The Law, page 13.
The U.S. Marshals Service has directed the agency’s Freedom of Information officers to ignore the 1996 holding of the U.S. Court of Appeals in Cincinnati (6th Cir.) that mug shots of federal suspects can be released under the federal FOI Act. (Detroit Free Press v. Department of Justice) The directive is not altogether the Marshals Service’s fault. It follows changes last May in the Department of Justice’s Freedom of Information Act Guide.
The guide says that the newspaper’s favorable decision should no longer be regarded as authoritative even in the 6th Circuit in light of the U.S. Supreme Court’s decision in March in National Archives and Records Administration v. Favish and “atop the overwhelming weight of case law” that the guide says “broadly interprets” the privacy protections in the Freedom of Information Act’s law enforcement exemption.
The Favish ruling this year denied photographs of the body of the late deputy White House counsel Vince Foster, saying no public interest in disclosure outweighed the privacy interests of Foster’s survivors. The Free Press decision granted reporter Joe Swickard mug shots of Jack Anthony Lucido and associates indicted on 82 counts of illegal gambling and other charges at a golf club in the wealthy Detroit suburbs. The public’s interest in what the mug shots could show — error in detaining the wrong person, the circumstances of arrest and incarceration — outweighed any privacy interest, the court said.
We do not see the connection between the two cases other than the Justice Department’s usual refrain that disclosure interferes with “privacy,” a claim it makes repeatedly and seemingly without regard to the circumstances.
Free Press attorney Herschel Fink said he hopes the marshal who appears before Judge Anna Diggs-Taylor in Detroit to challenge her decision has packed a toothbrush. That’s a matter of contempt, Fink said.
Fink, of Detroit’s Honigman Miller Schwartz and Cohn, argued successfully in the mid-1990’s that the Detroit Free Press should be able to get mug shots. In her opinion, Judge Diggs-Taylor said, “Our faces, for better or for worse, are not private matters.” She was upheld on appeal.
To be sure, the appeals decision was split — one of the three deciding judges thought there was a privacy interest in mug shots. And there is a lower court ruling from a federal judge in New Orleans that a “purely speculative” public interest in a mug shot of a public official who pleaded guilty to criminal charges would not overcome the government’s claim of a privacy interest. Oddly, that court remarked that the stigma of a mug shot can outlast the stigma of the commission of a crime. (Times Picayune v. Department of Justice)
But whatever the differences of opinion, we think the Justice Department was dead wrong in asserting that an appeals court decision no longer applies, and we think that the U.S. Marshals Service should not be telling its work force to ignore an appeals court ruling. The U.S. Supreme Court might do that, but the government did not seek its views in the Free Press case, which it did not appeal. Without an appeal and a reversal, the ruling stands in the 6th Circuit.
The exemption claimed by the government — Exemption 7(C) — allows an agency to balance privacy interests and public interests in requested law enforcement records. If disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy” then the government can withhold the requested information.
It has become a complicated exemption. In 1989, the U.S. Supreme Court ruled that the only public interest that can be considered in the balance is the public’s interest in knowing what the government is “up to.” (Department of Justice v. Reporters Committee) The court allowed the government to use the exemption against the requester in Favish, but it set some restraints.
Allan Favish speculated that the pictures of Foster’s body in Fort Marcy Park in Northern Virginia might show that the government had wrongly claimed his death to be a suicide. The Supreme Court said that was not a good enough public interest to force disclosure. If the public interest asserted in the balancing test was the interest in government wrongdoing, then a FOI requester would have to show evidence of wrongdoing, the court said. But the evidence did not have to be conclusive, it only had to convince a reasonable person that wrongdoing “might” have occurred, the court said.
The court also left open the possibility that public interests in government operations and activities other than the public’s interest in government wrongdoing might also be considered in the balance.
The stories in the FOI section of this magazine show how prevalent — and how silly — government claims of privacy have become.
Harry C. Piper III hopes to write a book about his mother’s unsolved kidnapping 32 years ago that involved payment of a huge ransom. He is battling government claims that persons involved — even those tried and acquitted on kidnap charges — have privacy interests that need protecting at the expense of the public’s learning what happened in that widely reported Minnesota case. (See article, page 12.)
The government claims that thousands of detainees held after Sept. 11, 2001, could be held in secret because they would be stigmatized if the public knew their plight. An appeals court in Washington, D.C., chose not to address that privacy claim since it allowed the government to withhold the information for “national security” reasons. (See article, page 10.)
The argument pops up elsewhere. The government has even claimed that adherence to the “Geneva Convention” keeps it from releasing identities of prisoners as the disclosures would be humiliating to those in lockup.
We can expect more of the same. The newest guidance from the Justice Department says that the court decisions on Exemption 7(C) should allow “full protection” of the privacy interests of those mentioned in law enforcement files.
We’re hoping the Free Press reporters or other journalists can set the record straight.