The Reporters Committee for Freedom of the Press, joined by 37 media organizations, has written to U.S. Attorney General Eric H. Holder Jr., asking that a recently enacted Marshals Service policy to block the release of federal criminal booking photographs be rescinded.
“The new policy stifles the public’s lawful access to booking photographs under FOIA without legal justification,” according to the Reporters Committee letter.
The Reporters Committee letter was prompted by a Dec. 12 Marshals Service memo stating that it would no longer comply with Freedom of Information Act requests for booking photographs as required under appellate court precedent in the U.S. Court of Appeals in Cincinnati (Sixth Circuit).
Under the 1996 ruling in Detroit Free Press v. Department of Justice, federal booking photographs must be released under FOIA when a named, indicted criminal suspect has appeared in open court and the court proceedings are ongoing. The Sixth Circuit ruling found that under such circumstances an individual has no privacy right in such records. By refusing to follow the appellate court precedent, the Marshals Service has essentially shut off access to federal mug shots under FOIA.
The Marshals Service had previously limited release of booking photographs to FOIA requests originating from within the Sixth Circuit and only allowed their release to non-Sixth Circuit requesters if the images had already been made public under FOIA. The December memo states that the Marshals Service will no longer comply with its FOIA obligations under the Detroit Free Press decision particularly in light of two subsequent U.S. appellate courts decisions finding that subjects may have some level of privacy under FOIA in their booking photograph images.
“This policy change runs counter to legal precedent, Justice Department FOIA guidelines, and the law,” said Reporters Committee Executive Director Bruce D. Brown. “We are hearing of reporters’ requests for booking photos being rejected on privacy grounds after defendants have appeared in open court. We don’t see any justification for this.”
The Reporters Committee is equally frustrated, Brown added, by the Marshal Service’s lack of transparency on the policy change, dating back to a Reporters Committee letter on the issue sent more than a year ago. “We hope that the Attorney General will not only rescind and reverse this policy, but also make it retroactive to FOIA requests denied since it went into effect,” he said.
About the Reporters Committee:
Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.
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