Release of mug shots does not violate defendants’ privacy
MICHIGAN–The Detroit Free Press can obtain the mug shots of federally indicted defendants, a split panel of the U.S. Court of Appeals in Cincinnati ruled in mid-January, affirming a lower court decision and rejecting government arguments that disclosure would intrude upon the defendants’ privacy because it would “stigmatize, incriminate, and embarrass” them.
The court found that disclosure of the booking photographs of defendants facing current charges would not intrude on personal privacy because their names were already public and they had already appeared in open court. The court said it need not employ the traditional balancing test between privacy interests and public interests which normally determines whether agencies can withhold information under the privacy exemptions to the federal Freedom of Information Act (Exemptions 6 and 7(c)).
However, Judge Martha Daughtrey said it would be possible for a court to find a significant public interest in the disclosure of the mug shots that would justify disclosure even where a privacy interest existed. Release could reveal the government’s glaring error in detaining the wrong person, or startlingly reveal the circumstances of the arrest and incarceration, she wrote.
The federal government in 1992 handed down an 82-count indictment of Jack Anthony Lucido, family members and associates charging them with illegal gambling, sports bookmaking activities and a money- laundering operation at the swank Wolverine Golf Club outside Detroit.
Reporter Joe Swickard asked the U.S. Marshals Service for mug shots of eight of the defendants who were under indictment in July 1993. But the agency refused, claiming that the disclosures would intrude upon their privacy.
In October 1993 the Free Press sued for the photographs in federal District Court in Detroit. Judge Anna Diggs ruled in April 1994 that “Our faces, for better or for worse, are not private matters.”
The government appealed, insisting that a 1989 U.S. Supreme Court ruling that disclosure of criminal history rap sheets were exempt under the privacy exemptions would apply to mug shots as well. In that case the high court held that the only public interest that could be balanced against privacy concerns would be the public’s interest in knowing what the government was “up to.”
Judge Alan Norris dissented from the appeals panel ruling. Mug shots give “distinctive form” to information about a person, including his expression at a humiliating moment and the fact that he has been booked on criminal charges, according to Judge Norris. Norris also said that disclosure of the mug shots would serve no public interest. Since the record contains no evidence of abusive arrest and detention practices, the public does not need to monitor these criminal justice practices, he said. (Detroit Free Press v. Department of Justice; Media Counsel: Herschel Fink, Detroit)