By Dennis Hetzel, OCOG President
The Sixth Circuit U.S. Court of Appeals in Cincinnati has left only a tiny crack in the door to obtain booking photographs of people accused of federal crimes.
In a 9-7 decision, the court upheld rulings in other federal courts that the U.S. Marshals Service has correctly interpreted the Freedom of Information Act by saying that the FOIA’s restrictions on release if the subject has a strong privacy interest outweighs the public’s right to see the booking photos.
The Sixth Circuit, which covers Ohio, Kentucky, Tennessee and Michigan, was the last federal court circuit in which these photos could be obtained. The Detroit Free Press led a media coalition to retain that right after the marshals refused to release mugshots of indicted police officers.
Our Ohio Coalition for Open Government was one of the groups filing briefs in the case, with financial support from open government groups in Michigan, Tennessee and Kentucky as well as the Ohio Association of Broadcasters.
OCOG attorney Dave Marburger shared this in an email:
“The only good news was that the court decided to adopt a case-by-case approach in evaluating whether the federal government has the authority to withhold booking photos from public view – as opposed to ruling that booking photos are categorically outside the public right of access under FOIA.
“You might recall that our amicus brief urged the Court not to adopt the government's argument that booking photos are categorically private, although the Court's opinion doesn't mention us in declining to rule that booking photos are always (categorically) outside the public's right of access.”
Note that this only affects federal cases, not state ones, although the decision gives aid and comfort to those who would ban access to these photos in state courts. Also, since the marshals are likely to always say “no” when asked for photos, your only recourse will be a lengthy FOIA process and eventual litigation. As a practical matter, the court has slammed the door shut.
What is most striking to me in the decision is how much the justices were swayed by the influence of the Internet and social media, which was not a factor when the FOIA was created of course. Consider this quote from the ruling: “In 1996, this court could not have known or expected that a booking photo could haunt the depicted individual for decades.”
The justices specifically mentioned the “mugshot sites” that charge those arrested to have their photos removed and the reality that these photos do not “go away” as they did years ago when they showed up one day in the newspaper or for a fleeting moment on a TV newscast.
As we all know, the Internet continues to change everything it touches. For those of us who believe in open government and responsible journalism, we will have to be increasingly nimble to resist these arguments. On the legislative front, we’ll continue to be faced with legislators and voters who want to “do something” about bad online actors, the viciousness of many anonymous commenters and the pervasiveness of the Web.
To read the full decision, click here.