in the united states court of appeals for the sixth...
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____________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ______________________
No. 14-1670
______________________
DETROIT FREE PRESS, INC.,
Plaintiff-Appellee, v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant-Appellant.
______________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
DISTRICT COURT NO. 13.12939 JUDGE PATRICK J. DUGGAN ______________________
APPELLANT’S OPENING BRIEF
______________________
JOYCE R. BRANDA Acting Assistant Attorney General DOUGLAS N. LETTER LEONARD SCHAITMAN STEVE FRANK (202) 514-4820 Attorneys, Appellate Staff Civil Division, Room 7245 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530
____________________________________________________
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STATEMENT REGARDING ORAL ARGUMENT Appellant respectfully requests oral argument to assist the Court in its
disposition of this case.
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TABLE OF CONTENTS Page STATEMENT REGARDING ORAL ARGUMENT STATEMENT OF JURISDICTION ........................................................... 1 STATEMENT OF THE ISSUE .................................................................. 2 STATEMENT OF THE CASE ................................................................... 2 A. Statement of Facts ................................................................... 2 B. District Court Proceedings ...................................................... 4 STANDARD OF REVIEW .......................................................................... 6 SUMMARY OF ARGUMENT .................................................................... 7 ARGUMENT ............................................................................................. 11 FOIA EXEMPTION 7(C) ALLOWS THE GOVERNMENT TO WITHHOLD THE BOOKING PHOTOGRAPHS OF FEDERAL ARRESTEES ................................................................................... 11 INTRODUCTION ..................................................................................... 11 A. There is a Cognizable Exemption 7(C) Privacy Interest At Stake ...................................................... 16 B. There is No Cognizable Public Interest in Compelling Disclosure Of Mug Shots As a Matter of Course .................................................................... 31 CONCLUSION ......................................................................................... 34
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CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE DESIGNATION OF DOCUMENTS
TABLE OF AUTHORITIES Cases: Abraham & Rose P.L.C. v. United States,
138 F.3d 1075 (6th Cir. 1998) ............................................... 8, 13, 28 Adkins v. Wolever, 520 F.3d 585 (6th Cir. 2008) ................................... 15 Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2009) (en banc) ................... 15 Barnes v. United States, 365 F.2d 509 (D.C. Cir. 1966) ................................................................................ 22 Beck v. Department of Justice, 997 F.2d 1489 (D.C. Cir. 1993) ................................................................................ 18 CIA v. Sims, 471 U.S. 159 (1985) ........................................................... 16 Department of Defense v. FLRA,
510 U.S. 487 (1994) ....................................................... 17, 18, 25, 27 Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) .................................. 8, 9, 16, 17, 19, 21, 23, 25, 27, 28, 30, 31, 33 Department of State v. Ray, 502 U.S. 164 (1991) .................................. 32
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Detroit Free Press v. Department of Justice, 73 F.3d 93 (6th Cir. 1996) .................................. 2, 6, 7, 8, 10, 11, 18,
19, 22, 23, 24, 29, 31 Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979) .................................................................................. 22 FLRA v. Department of Navy, 941 F.2d 49 (1st Cir. 1991) .................................................................................. 18 John Doe Agency v. John Doe Corp.,
493 U.S. 146 (1989) ......................................................................... 16 Jones v. FBI, 41 F.3d 238 (6th Cir. 1994) ............................ 13, 19, 24, 28 Judicial Watch, Inc. v. Department of Justice,
365 F.3d 1108 (D.C. Cir. 2004) ....................................................... 28 Karantsalis v. Department of Justice,
635 F.3d 497 (11th Cir. 2011) (per curiam), cert. denied, 132 S. Ct. 1141, 2012 WL 171139 (U.S. Jan. 23, 2012) ........ 3, 7, 9, 12, 20, 21, 22, 33 Kiraly v. FBI, 728 F.2d 273 (6th Cir. 1984) ......................... 13, 20, 24, 28 Multi AG Media LLC v. Department of Agriculture,
515 F.3d 1224 (D.C. Cir. 2008) ....................................................... 18 Nat'l Archives & Records Admin. v. Favish,
541 U.S. 157 (2004) ............................................ 10-11, 17, 25, 30, 32 Nat'l Ass'n of Retired Fed. Emps. v. Horner,
879 F.2d 873 (D.C. Cir. 1989) ................................................... 11, 33 New York Times Co. v. NASA,
920 F.2d 1002 (D.C. Cir. 1990) (en banc) ....................................... 26 Norwood v. FAA, 993 F.2d 570 (6th Cir. 1993) ............................... 13, 28
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Rimmer v. Holder, 700 F.3d 246 (6th Cir. 2012) ...................................................................... 13, 17, 33 Rugiero v. Department of Justice,
257 F.3d 534 (6th Cir. 2001), cert. denied, 534 U.S. 1134 (2002) ......................................................................... 6 Salmi v. Sec'y of Health & Human Servs,
774 F.2d 685 (6th Cir. 1985) ........................................................... 15 Times Picayune Publishing Corp. v. Department of Justice, 37 F. Supp. 2d 472 (E.D. La. 1999) ..................................................................... 12, 21, 23 United States v. Irorere, 69 F. App'x 231 (6th Cir. 2003) ............................................................................. 21-22 United Steel Workers of America v. Saint Gobain Ceramics & Plastics, Inc., 467 F.3d 540 (6th Cir. 2006), vacated by grant of en banc review, 505 F.3d 417 (2007) ............................................................ 15 World Publishing Co. v. Department of Justice,
672 F.3d 825 (10th Cir. 2012) ........................................... 3, 7, 12, 22 Statutes: Freedom of Information Act: 5 U.S.C. §§ 552, et seq., ................................................................... 16 5 U.S.C. § 552(a)(4)(B) and (G) ......................................................... 1 5 U.S.C. § 552(b) .............................................................................. 16 5 U.S.C. § 552(b)(7)(C)............................................................. 2, 4, 16 28 U.S.C. § 1291........................................................................................ 2
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Rules: Fed. R. App. P. 4(a)(1)(B) ......................................................................... 2 Regulations: 28 C.F.R. § 50.2(b)(7) ................................................................................ 2 Law Materials: Mug Shots and the FOIA, 99 Cornell L. Rev. 633 (March 2014) .................................................................................... 14
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IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 14-1670
DETROIT FREE PRESS, INC.,
Plaintiff-Appellee, v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
DISTRICT COURT NO. 13-12939 HON. PATRICK J. DUGGAN
OPENING BRIEF FOR THE APPELLANT STATEMENT OF JURISDICTION
Plaintiff invoked the jurisdiction of the district court under the
Freedom of Information Act. See 5 U.S.C. § 552(a)(4)(B) and (G). The
district court entered final judgment in favor of the plaintiff on April 21,
2014, disposing of all claims as to all parties. The government filed a
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timely notice of appeal on May 22, 2014. See Fed. R. App. P. 4(a)(1)(B).
This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUE
Whether Exemption 7(C) of the Freedom of Information Act (5
U.S.C. § 552(b)(7)(C)), which protects law enforcement records whose
disclosure “could reasonably be expected to constitute an unwarranted
invasion of personal privacy,” allows the government to withhold
booking photographs (“mug shots”) of federal arrestees.
STATEMENT OF THE CASE
A. Statement of Facts.
1. The United States Marshals Service has a long-standing policy
of not disclosing booking photographs of federal arrestees. Record (“R”)
24 at 875. See 28 C.F.R. § 50.2(b)(7). This uniform national policy was
disrupted in 1996 when a split panel of this Court held that “no privacy
rights are implicated” in releasing mug shots in “ongoing criminal
proceedings in which the names of the indicted suspects have already
been made public and in which the arrestees have already made court
appearances.” See Detroit Free Press v. Department of Justice, 73 F.3d
93, 95 (6th Cir. 1996) (“DFP I”).
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In an effort to accommodate that decision, the Marshals Service
adopted a bifurcated approach to the disclosure of booking photographs,
allowing for the disclosure of photographs arising from FOIA requests
within the jurisdiction of this Court, while denying such requests in the
rest of the country. R. 24 at 875.
Recently, two courts of appeals considered and rejected the
reasoning and holding of DFP I. See World Publishing Co. v.
Department of Justice, 672 F.3d 825 (10th Cir. 2012); Karantsalis v.
Department of Justice, 635 F.3d 497 (11th Cir. 2011) (per curiam), cert.
denied, 132 S. Ct. 1141, 2012 WL 171139 (U.S. Jan. 23, 2012). In its
certiorari opposition in the Karantsalis case, the government explained
to the Supreme Court that it would be appropriate to give this Court an
opportunity to reconsider DFP I en banc in light of the circuit split
before any Supreme Court review of the matter. See Brief for Resps. in
Opp’n to Pet. for Cert., Karantsalis, No. 11-342 (Dec. 19, 2011).
Accordingly, the Marshals Service issued a memorandum in
December, 2012, providing that
In light of the weight of legal precedent now supporting the Department of Justice’s conclusion that booking photographs generally should not be disclosed under the FOIA, the Department has decided that a uniform policy should be
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applied. Accordingly, effective immediately, the USMS will not disclose booking photographs under the FOIA, regardless of where the FOIA request originated * * *.
R. 24 at 878.
2. On January 25, 2013, the Detroit Free Press submitted FOIA
request to the Deputy United States Marshal in the Eastern District of
Michigan seeking the mug shots of four Highland Park police officers
who had made their initial appearance in a case charging them with
bribery and drug conspiracy. R. 24 at 879. Pursuant to its newly
promulgated policy, the Marshals Service denied the request,
explaining that release of the mug shots “could reasonably be expected
to constitute an unwarranted invasion of personal privacy.” Id. (citing 5
U.S.C. § 552(b)(7)(C)).
B. District Court Proceedings.
The Detroit Free Press exhausted its administrative remedies and
then filed this action. R. 7 at 98. The parties filed cross-motions for
summary judgment. In its memorandum of law in support of summary
judgment in district court, the government acknowledged that “this
Court is bound by Sixth Circuit precedent” and recognized that “the
District Court cannot rule in defendant’s favor.” R. 18 at 364.
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Nevertheless, the government stated that “a ruling in this case that
permits the case to go forward is the most appropriate way to provide
the Sixth Circuit with an opportunity to reconsider its holding [in DFP
I].” Id.
On April 14, 2014, the district court issued its decision, granting
plaintiff’s motion for summary judgment, but denying plaintiff’s claim
that the government was in contempt of this Court’s judgment in DFP I.
R. 24 at 867. The court ordered the government to produce the
requested booking photographs, but stayed this order pending appeal.
Id. at 899-900. In its opinion, the district court “decline[d] to address
the merits of the parties’ arguments regarding whether Free Press I was
correctly decided.” Id. at 883. The district court, however, did note that
the two recent circuit court decisions holding mug shots to be protected
from disclosure under FOIA Exemption 7(C), “decided fairly recently
and years after [DFP I] may serve as the impetus to reconsideration en
banc by the Sixth Circuit.” Id. at 886. The court rejected plaintiff’s
argument that collateral estoppel precluded the government from
seeking en banc review of DFP I in this Court. Id. at 883-87. The court
also rejected plaintiff’s contempt claim stating “it is not contempt to try
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to change the law through appropriate channels.” “[I]t is an entirely
proper litigation strategy to seek the reversal of an arguably incorrect
panel decision by petitioning for an en banc hearing.” Id. at 890.
The government filed a petition for initial en banc review of the
district court’s judgment. On August 18, 2014, the Court denied the
government’s petition. Concurring, Judge Sutton stated that “[t]he
petition for initial hearing en banc has considerable force to it. Yet the
reality is that the panel in this case will have another shot at either
bolstering our holding in Detroit Free Press, Inc. v. Department of
Justice, 73 F.3d 93 (6th Cir. 1996), or explaining why it should be
overruled by the full court. Either way, I, for one, would consider
seriously a subsequent petition for rehearing en banc.”
STANDARD OF REVIEW
This court reviews the propriety of a district court’s grant of
summary judgment in a FOIA proceeding de novo. Rugiero v.
Department of Justice, 257 F.3d 534, 543 (6th Cir. 2001), cert. denied,
534 U.S. 1134 (2002).
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SUMMARY OF ARGUMENT
1. Nearly twenty years ago, a panel majority of this Court held
(over a vigorous dissent) that the booking photographs of federal
arrestees were not protected from disclosure under FOIA Exemption
7(C). See Detroit Free Press v. Department of Justice, 73 F.3d 93 (6th
Cir. 1996) (“DFP I”). More recently, two other Circuits rejected both the
reasoning and holding of the panel’s decision. See Karantsalis v.
Department of Justice, 635 F.3d 497 (11th Cir. 2011) (per curiam), cert.
denied, 132 S. Ct. 1141, 2012 WL 171139 (U.S. Jan. 23, 2012); World
Publishing Co. v. Department of Justice, 672 F.3d 825, 832 (10th Cir.
2012).
Several reasons support reconsideration of DFP I’s reasoning.
First, DFP I is an outlier among FOIA jurisprudence. Its outmoded,
narrow view of privacy runs directly contrary to the precedent of the
Supreme Court, this Court, and other Circuits. Second, dramatic
technological advances - - the significance of which were scarcely
contemplated when DFP I was litigated in the mid-1990s - - have
heightened the impact that public disclosure of booking photographs
has upon individual privacy. And third, requesters are exploiting the
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FOIA choice of venue provisions by using a straw man within this
Court’s jurisdiction to get mug shots of individuals located in other
jurisdictions where such disclosure is prohibited. This undermines the
authority of other Circuits and the Marshals Service’s efforts to
maintain a uniform national policy on this issue. It is time that DFP I
be reconsidered, and, ultimately, reversed by the Court sitting en banc.
The DFP I’s majority opinion is based on a flawed view of privacy
under FOIA, i.e., that “no privacy rights are implicated” in releasing
mug shots. See DFP I, 73 F.3d at 95. The panel majority so held in
spite of the fact that the Supreme Court, and this Court, have long
recognized that there is in fact a substantial privacy interest under
FOIA Exemption 7(C) in information regarding individuals contained in
law enforcement records, even when the information has previously
been made public in some form. See Department of Justice v. Reporters
Committee for Freedom of the Press, 489 U.S. 749, 771 (1989) (“[t]he
privacy interest in a rap sheet is substantial”); Abraham & Rose P.L.C.
v. United States, 138 F.3d 1075, 1083 (6th Cir. 1998) (“[A] clear privacy
interest exists with respect to such information as names, addresses,
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and other identifying information even if such information is already
available on publicly recorded filings”).
Further, a mug shot is not just a dry, data-driven law enforcement
record. Rather, the unique and embarrassing nature of mug shots
makes their disclosure at least as invasive as the disclosure of routine
law enforcement records, if not more so. See Karantsalis, 635 F.3d at
503 (“a booking photograph is a unique and powerful type of photograph
that raises personal privacy interests distinct from normal
photographs”). Thus, the privacy interest in a mug shot - - far from
being non-existent - - is substantial. There is, at least, a “non-trivial”
privacy interest in these law enforcement records necessitating a court
to consider whether a countervailing public interest exists that
outweighs the privacy interest, a balancing test that the DFP I panel
did not undertake.
2. The Supreme Court has made clear that to be a cognizable
“public interest” under FOIA Exemption 7(C), the disclosure must “shed
light on an agency’s performance of its statutory duties.” Reporters
Comm., 489 U.S. at 762. In other words, the disclosure must inform the
public about “what the[] government is up to,” and not simply contain
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“information about private citizens that is accumulated in various
governmental files but that reveals little or nothing about an agency’s
own conduct.” Id. at 772-773.
Since the panel majority in DFP I determined that there was no
privacy interest in mug shots, it stated that it did not need to consider
the public interest prong of FOIA Exemption 7(C). See 73 F.3d at 97-98.
The opinion did, however, suggest in dicta that, in “limited
circumstances,” a qualifying public interest might be served by
release—e.g., where the photographs would prove that an agency was
“detaining the wrong person,” or where a photograph would provide
evidence that the arrestee had been mistreated. Id. at 98.
Even considering this dicta, these purported public interests are
not entitled to any weight in the balancing test in this case. Plaintiff
has not alleged here that the government “detain[ed] the wrong person,”
or that any of the arrestees had been mistreated. Moreover, the
speculative exposure of government misconduct hypothesized in DFP I
fails to meet the criteria for a cognizable public interest elaborated by
the Supreme Court’s decision in Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 174 (2004) (decided after DFP I). After Favish,
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where “the public interest being asserted is to show that responsible
officials acted negligently or otherwise improperly in the performance of
their duties,” the requester must make a “meaningful evidentiary
showing” before the potential misconduct can serve as a public interest
“counterweight” to the privacy interest. Id. at 172-74. No such showing
has been made here.
In sum, the privacy interest at stake here, whether it be
characterized as “non-trivial,” or substantial (but certainly not non-
existent) outweighs the lack of any cognizable public interest in
disclosure. As the D.C. Circuit has stated in language that is applicable
here: “something * * * outweighs nothing every time.” See Nat’l Ass’n of
Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).
ARGUMENT
FOIA EXEMPTION 7(C) ALLOWS THE GOVERNMENT TO WITHHOLD THE BOOKING PHOTOGRAPHS OF FEDERAL ARRESTEES.
INTRODUCTION
Nearly twenty years ago, a panel of this Court held that the
booking photographs of federal arrestees were not protected from
disclosure under FOIA Exemption 7(C). See Detroit Free Press v.
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Department of Justice, 73 F.3d 93 (6th Cir. 1996) (“DFP I”). Since that
time, no court outside this Circuit has followed the panel’s decision in
DFP I. To the contrary, the two Circuits that recently have considered
the question presented here rejected both the reasoning and holding of
the panel’s decision in DFP I. See Karantsalis v. Department of Justice,
635 F.3d 497 (11th Cir. 2011) (per curiam), cert. denied, 132 S. Ct. 1141,
2012 WL 171139 (U.S. Jan. 23, 2012) (“[w]e take note of the opinion in
Detroit Free Press * * * and respectfully reject its holding”); World
Publishing Co. v. Department of Justice, 672 F.3d 825, 832 (10th Cir.
2012) (“[d]espite the holding in Detroit Free Press, when the public
interest is balanced against the privacy interest in a booking photo, [the
FOIA] request would not further the purpose of the FOIA”). See also
The Times Picayune Publishing Corp. v. Department of Justice, 37 F.
Supp. 2d 472, 475 (E.D. La. 1999) (similarly rejecting DFP I’s reasoning
and holding).
There are at least three additional reasons to reexamine DFP I’s
reasoning and conclusions. First, as discussed in detail below, DFP I is
an outlier among this Circuit’s FOIA privacy exemption rulings, and its
reasoning and conclusions cannot be reconciled to other decisions of this
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Court giving much greater weight to the privacy interest under the
FOIA. See, e.g., Rimmer v. Holder, 700 F.3d 246, 257 (6th Cir. 2012);
Abraham & Rose P.L.C. v. United States, 138 F.3d 1075, 1083 (6th Cir.
1998); Jones v. FBI, 41 F.3d 238, 245 (6th Cir. 1994); Norwood v. FAA,
993 F.2d 570, 574 (6th Cir. 1993); Kiraly v. FBI, 728 F.2d 273, 277 (6th
Cir. 1984).
Second, dramatic technological advances in the internet’s capacity
- - the significance of which were scarcely contemplated when DFP I
was litigated in the mid-1990s - - have heightened the impact that
disclosure of booking photographs has upon individual privacy. See R.
18 at 370-74 (describing in detail changes in computing, internet usage,
search engines, and social media that impact privacy interests). Indeed,
numerous sources have specifically discussed the negative impact that
the ready availability of booking photographs on the internet can have
on individuals. See R. 18-2, Exs. J-P, at 629-59.
And third, the exception created in this jurisdiction by DFP I
undermines the Marshals Service’s implementation of a uniform
national policy on this issue and puts the Marshals Service in the
untenable position of releasing mug shots requested in this Circuit,
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even if the mug shot was created in another jurisdiction, such as the
Tenth and Eleventh Circuits, where it would otherwise be exempt from
compelled disclosure. R. 24 at 884 & n. 9. Thus, the Marshals Service
faces binding case law both ordering release of the photographs and
exempting them from compelled disclosure. See Mug Shots and the
FOIA, 99 Cornell L. Rev. 633, 656 (March 2014) (this “undesirable and
inequitable situation” has “disturbing consequences”). Moreover, FOIA
requesters, including national media entities, have exploited the
exception created by DFP I. Requesters use a straw man, a resident
within this Court’s jurisdiction, to get mug shots of individuals located
in other jurisdictions where such disclosure is prohibited. See R. 24 at
884-85. In effect, DFP I has created a nationwide loophole for obtaining
booking photographs.
As all parties and the court below have recognized throughout the
present litigation, a panel of this Court is bound by principles of stare
decisis, to follow the judgment of DFP I. See R. 24 at 882 (“[i]t is beyond
doubt that Free Press I, a published panel decision, remains controlling
precedent ‘unless an inconsistent decision of the United States Supreme
Court requires modification of the decision or [the Sixth Circuit] sitting
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en banc overrules the prior decision.’” (quoting Salmi v. Sec’y of Health
& Human Servs, 774 F.2d 685, 689 (6th Cir. 1985) (citations omitted)).
However, the panel, like the district court did, may recognize the
reasoning of the two recent circuit court decisions and that they “may
serve as the impetus to reconsideration en banc by the Sixth Circuit.”
R. 24 at 886.
This is precisely the path taken by other panels of this Court
under similar circumstances. In Adkins v. Wolever, 520 F.3d 585 (6th
Cir. 2008), a panel decided a case in accord with prior precedent, but
expressed “the hope that an en banc panel will change this law” and
said “we encourage other members of the Court” to “revisit the issue en
banc.” Id. at 585, 588. The full Court then granted en banc rehearing
and overruled its earlier precedent to “bring our case law in line with
the other courts of appeals.” See Adkins v. Wolever, 554 F.3d 650, 651
(6th Cir. 2009) (en banc). See also United Steel Workers of America v.
Saint Gobain Ceramics & Plastics, Inc., 467 F.3d 540 (6th Cir. 2006)
(criticizing binding decision and “call[ing] for its overruling”), vacated by
grant of en banc review, 505 F.3d 417 (2007).
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A. There is a Cognizable Exemption 7(C) Privacy Interest At Stake. 1. The Freedom of Information Act, 5 U.S.C. §§ 552, et seq.,
generally provides that any person has a right of access to federal
agency records, except to the extent such records are protected from
disclosure by a congressional exemption. “Congress recognized * * * that
public disclosure is not always in the public interest” and carved out
nine exemptions from disclosure in 5 U.S.C. § 552(b). CIA v. Sims, 471
U.S. 159, 166 -67 (1985). These statutory exemptions must be given
“meaningful reach and application.” John Doe Agency v. John Doe
Corp., 493 U.S. 146, 152 (1989).
The exemption pertinent to the instant action is Exemption 7(C),
which protects information “compiled for law enforcement purposes” the
disclosure of which “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C. § 552b(7)(C). See
generally Department of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749 (1989). It is undisputed in this litigation that
booking photographs met the threshold test of being “compiled for law
enforcement purposes.” R. 24 at 874. Under Exemption 7(C), the court
engages in the traditional balancing test to determine whether the
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privacy interest at stake outweighs the public interest in disclosure. See
Reporters Committee, 489 U.S. at 762; Department of Defense v. FLRA,
510 U.S. 487, 495 (1994); Rimmer v. Holder, 700 F.3d 246, 256-57 (6th
Cir. 2012). As discussed further below, both the privacy interest and
the public interest to be considered have been clearly defined by the
Supreme Court. The relevant privacy interest has been broadly
construed, while the cognizable public interest is a limited term of art,
narrowly confined to particular circumstances.
2. The Supreme Court has emphasized that the “privacy
interests” protected by Exemption 7(C) cover a broad range of interests
that “encompass[es] the individual’s control of information concerning
his or her person.” Reporters Committee, 489 U.S. at 763-764 & n.16;
accord, e.g., DoD v. FLRA, 510 U.S. at 500. The Supreme Court
repeatedly has stressed that the “concept of personal privacy [under
FOIA] is not some limited or ‘cramped notion’ of that idea.” Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 165 (2004) (quoting
Reporters Committee, 489 U.S. at 763). Further, and most significant
for this case, it is settled that a “non-trivial privacy interest” is
sufficient to justify the withholding of information under Exemption
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7(C), unless the public interest in disclosure is sufficient to outweigh it.
See Department of Defense v. FLRA , 510 U.S. at 501. See also Multi AG
Media LLC v. Department of Agriculture, 515 F.3d 1224, 1229-30 (D.C.
Cir. 2008) (threshold for privacy is “anything greater than a de minimis
privacy interest”).1
The DFP I panel majority, however, held that “no privacy rights
are implicated” in releasing mug shots in “ongoing criminal proceedings
in which the names of the indicted suspects have already been made
public and in which the arrestees have already made court
appearances.” See 73 F.3d at 95. Since the panel majority concluded
that no privacy interest at all was implicated by the release of mug
shots in the circumstances described in that case, it, therefore,
determined that there was no need to consider the second part of the
Reporters Committee test, regarding the public interest. See id. at 97-98
(addressing it only in dicta).
1 The threshold privacy interest has been variously, but modestly, described. See DoD v. FLRA, 510 U.S. at 500 (“slight”); Beck v. Department of Justice, 997 F.2d 1489, 1494 (D.C. Cir. 1993) (“something” on the privacy side); FLRA v. Department of Navy, 941 F.2d 49, 57 (1st Cir. 1991) (“non-zero”).
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Judge Norris dissented in DFP I. See 73 F.3d at 99-100. He
faulted the majority for “misconceiv[ing] the true nature of a mug shot,”
which gives “distinctive form” to information about individuals, and
conveys more than the simple fact of arrest. Id. Judge Norris also
concluded that any purported qualifying public interest in the
dissemination of mug shots is “utterly speculative and therefore not
entitled to weight in the FOIA privacy exemption balancing.” Id. at 100.
3. The DFP I’s majority opinion is based on the erroneous view
that an individual has no privacy interest in his mug shots. That notion
is mistaken and contrary to controlling Supreme Court precedent and
this Court’s FOIA jurisprudence. The Supreme Court has long
recognized that there is in fact a substantial privacy interest under
FOIA Exemption 7(C) in information regarding individuals contained in
law enforcement records, and this Court has specifically applied this
reasoning where disclosure might subject these individuals or their
families to embarrassment, harassment, or reprisal. See Reporters
Comm., 489 U.S. at 771 (“[t]he privacy interest in a rap sheet is
substantial”); Jones v. FBI, 41 F.3d 238, 245 (6th Cir. 1994) (concluding
that privacy interest existed if “release could subject an individual to
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embarrassment or harassment as a result of being identified as a
subject of FBI inquiry”); Kiraly v. FBI, 728 F.2d 273, 277 (6th Cir. 1984)
(“[d]isclosure of such information [regarding those investigated but not
indicted or tried] could subject a person to embarrassment, harassment
and even physical danger”). Indeed, in Reporters Committee, the
Supreme Court stated that the “privacy interest protected by
Exemption 7(C) is * * * at its apex while the FOIA based public interest
in disclosure is at its nadir” when a requester seeks a private citizen’s
criminal history information within the government’s control. See 489
U.S. at 780. DFP I’s view that not even a slight privacy interest is
implicated in booking photographs cannot be reconciled with this
settled body of FOIA jurisprudence.
4. A mug shot is not a dry, data-only law enforcement record.
Rather, the unique and embarrassing nature of mug shots makes their
disclosure at least as invasive as the disclosure of routine law
enforcement records, if not more so. In Karantsalis, in holding mug
shots to be exempt from compelled disclosure under Exemption 7(C),
the Eleventh Circuit recognized that “a booking photograph is a unique
and powerful type of photograph that raises personal privacy interests
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distinct from normal photographs. A booking photograph is a vivid
symbol of criminal accusation, which, when released to the public,
intimates, and is often equated with, guilt. Further, a booking
photograph captures the subject in the vulnerable and embarrassing
moments immediately after being accused, taken into custody, and
deprived of most liberties.” See 635 F.3d at 503. See also Times
Picayune, 37 F. Supp. 2d at 477 (a “mug shot is more than just another
photograph”); DFP I, 73 F.3d at 99 (Norris, J., dissenting) (a booking
photograph is taken under compulsion, and “conveys much more than
the appearance of the pictured individual”). If a rap sheet invokes
“substantial” privacy interests, as the Supreme Court held in Reporters
Committee (see 489 U.S. at 752, 771), then an invasive mug shot,
invokes similarly significant privacy concerns.
Several distinct aspects of a booking photograph - - its inherent
association with guilt, its humiliating presentation, and its stigmatizing
effect - - provide information concerning a person beyond what is
available through other photographs or public appearances of the
person. First, a “mug shot” is associated with guilt, an association
which prevails regardless of the outcome of the case. See United States
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v. Irorere, 69 F. App’x 231, 235 (6th Cir. 2003) (mug shots convey an
“unmistakable badge of criminality”) (quoting Eberhardt v.
Bordenkircher, 605 F.2d 275, 280 (6th Cir. 1979)); Barnes v. United
States, 365 F.2d 509,510-11 (D.C. Cir. 1966) (“[t]he double-shot picture,
with front and profile shots alongside each other, is so familiar, from
“wanted” posters in the post office, motion pictures and television, that
the inference that the person involved has a criminal record, or has at
least been in trouble with the police, is natural, perhaps automatic”).
Second, a “mug shot” reveals an otherwise private event in which
the individual is captured at “a humiliating moment.” DFP I, 73 F.3d
at 99 (Norris, J., dissenting). See Karantsalis, 635 F.3d at 503 (mug
shot captures a person “in the vulnerable and embarrassing moments”
immediately after being accused and taken into custody); World
Publishing, 672 F.3d at 829 (noting “the vivid and personal portrayal of
a person's likeness in a booking photograph”). The uniqueness of
booking photographs is also demonstrated by the fact that newspapers
and other media organizations specifically request them, even though
other photographs are available. See R. 18-2, Ex. Q at 660 (suggesting
that “[w]hat is so fascinating about a mugshot” is “the voyeuristic
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appeal of witnessing people at their most vulnerable”). And individuals
have filed “reverse FOIA” actions in an effort to prevent release of
booking photographs.2 This, of course, significantly undermines DFP I’s
central premise, i.e., that the photographs do not contain “new
information that the indictees would not wish to divulge.” DFP I, 73
F.3d at 97.
Third, a “mug shot” has a long-term stigmatizing effect. It
“preserves, in its unique and visually powerful way, the subject
individual’s brush with the law for posterity.” Times Picayune, 37 F.
Supp. 2d at 477. This effect remains long after criminal proceedings
have concluded, and even after a sentence has been served. The staying
power of this visual stigma implicates “the privacy interest in keeping
personal facts away from the public eye,” because there is a “privacy
interest inherent in the nondisclosure of certain information even where
the information may have been at one time public.” Reporters Comm.,
489 U.S. at 767, 769. Indeed, since booking photographs are usually
requested early in a proceeding, the release of mug shots while
2 See, e.g., Emergency Motion to Bar Release of Post-Arrest Photographic Images of Defendant, Doc. 86, United States v. Loughner, No. 11-00187 (D. AZ, Feb. 10, 2011).
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proceedings are pending, as sanctioned in DFP I, necessarily
encompasses individuals who are later acquitted or for whom charges
are dropped. In these cases, the booking photograph might remain
publicly available for years, continuing to invade the personal privacy of
an innocent person. See Jones, 41 F.3d at 245 (concluding that private
interest existed if “release could subject an individual to
embarrassment or harassment as a result of being identified as a
subject of FBI inquiry”); Kiraly, 728 F.2d at 277 (“[d]isclosure of such
information [regarding those investigated but not indicted or tried]
could subject a person to embarrassment, harassment and even
physical danger”).
The unique nature of mug shots undermines the core rationale of
the DFP I majority opinion that booking photographs reveal “no new
information” beyond the fact of an individual’s “arrest and conviction.”
See DFP I, 73 F.3d at 97 (reasoning that the defendants involved “had
already been identified by name by the federal government and their
visages had already be revealed during prior judicial appearances. No
new information * * * would therefore be publicized by release of the
mug shots by the Marshals Service”). See 73 F.3d at 97. Not only is
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this hypothesis incorrect, as discussed above, but this “no new
information” theory of Exemption 7(C) lacks support in the case law and
is contrary to settled FOIA precedent. For example, in Reporters
Committee, where the Supreme Court held that rap sheets were
protected from disclosure under Exemption 7(C), the Court considered
and rejected this very notion. The Court stated that “[b]ecause events
summarized in a rap sheet have been previously disclosed to the public,
respondents contend that Medico ’s privacy interest in avoiding
disclosure of a federal compilation of these events approaches zero. We
reject respondents ’ cramped notion of personal privacy.” See 489 U.S. at
762. See also DoD v. FLRA , 510 U.S. at 500 (“[a]n individual's interest
in controlling the dissemination of information regarding personal
matters does not dissolve simply because that information may be
available to the public in some form”); Favish, 541 U.S. at 166-71 (the
fact that one photograph had been leaked to the media did not detract
from the weighty privacy interests of the surviving relatives to be
secure from intrusions by a “sensation-seeking culture” and in limiting
further disclosure of the images).
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The DFP I approach is grounded in an unduly narrow view of the
range of “information” protected by the FOIA privacy exemptions. As is
reflected in the expression, “a picture is worth a thousand words,”
pictures often convey information more dramatically and forcefully than
a mere verbal recitation of the dry facts that underlie them, which facts
may already be publicly available. Thus, a mug shot conveys more
information than that a person was arrested. As the discussion above
demonstrates, a mug shot also conveys that the person may be
embarrassed, humiliated, in shock, unwashed, unshaven, and generally
unpresentable. The notion that individuals lack any privacy interest in
this additional information is belied by the length to which individuals
will go to have these images removed from public display. See, e.g., R.
18-2, Exhibits J-P at 629-59 (describing individuals’ efforts to have their
mug shots removed from internet sites).
Context matters. Even though dry data may be available in some
innocuous form, the disclosure of the same information in a dramatic
context may heighten privacy concerns. For example, in New York
Times Co. v. NASA , 920 F.2d 1002 (D.C. Cir. 1990) (en banc), the full
D.C. Circuit ruled that, even though a verbatim transcript of the sound
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recording of the last moments of the space shuttle Challenger had been
released, the further release of the recording itself provided “more
information” and implicated serious privacy interests. See id. (“textual
report accompanied by a picture, for example, provides more
information than the text of the report alone. In a particular case, the
picture might be exempt from disclosure while the text is not”). When
one considers the distinctive form and connotation of a mug shot, it is
clear that its release similarly conveys more information about the
subject than simply identity and the fact of arrest.
5. But “[e]ven if booking photographs merely conveyed the fact of
arrest, the individual’s privacy interest - - i.e., his interest in ‘control of
information concerning his or her person,’ Reporters Committee, 489
U.S. at 763—does not dissolve simply because that information may
[already] be available to the public in some form.” DoD v. FLRA, 510
U.S. at 500.
The idea that appearing in open court or being identified in a
court filing waives all privacy interests (the core holding of DFP I), is
directly contrary to this Circuit’s decisions. This Court has concluded
that individuals who have testified in open court retain a cognizable
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privacy interest in their names. See Jones, 41 F.3d at 247 (rejecting
“plaintiff’s argument that certain agents waived 7(C) protection by
testifying at plaintiff’s habeas proceeding”); Kiraly, 728 F.2d at 280
(holding that “the privacy interests of the testifying witnesses are not
waived”). Similarly, this Court has emphasized that publishing names
and other identifying information “on publicly recorded filings” does not
eliminate privacy interests. See Abraham & Rose P.L.C. v. United
States, 138 F.3d 1075, 1083 (6th Cir. 1998) (“a clear privacy interest
exists with respect to such information as names, addresses, and other
identifying information even if such information is already available on
publicly recorded filings”); Norwood v. FAA, 993 F.2d 570, 574 (6th Cir.
1993) (upholding the privacy interest of air traffic controllers who had
settled their claims and whose names had become public in at least
three different ways, including a court filing).
Nor does the fact that mug shots involve criminal defendants
eliminate the privacy interest, even if they ultimately are convicted. See
Reporters Comm., 489 U.S. at 771; Judicial Watch, Inc. v. Department of
Justice, 365 F.3d 1108, 1125-26 (D.C. Cir. 2004) (rejecting the notion
that “convicted felons are not entitled to the same privacy rights as
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other citizens”). If even convicted felons retain a privacy interest in
their records, then federal detainees, such are at issue here - - who, at
the time of the FOIA request, have yet to be convicted of any crime - -
possess at least an equal (if not greater) privacy interest in their
booking photographs. At a minimum, it cannot be said that no privacy
interests are implicated.
6. Finally, dramatic technological changes over the last twenty
years, since DFP I issued, have heightened the privacy interest at
stake. One can no longer assume that any publication or use of the mug
shots by requesters would be short-lived and associated only with the
time of the prosecution. See DFP I, 73 F.3d at 97. What was once
obscure is now permanently public and can do lasting damage.
Today, mug shots that have been released by law enforcement are
easily retrieved through Internet search engines. See R. 18-2, Exs. J-Q
at 629-59 (articles describing widespread internet publication of mug
shots and the consequences for individuals). They communicate
personal and potentially damaging information about a person that
lasts long beyond the time of the arrest, even long after that person has
been convicted and paid his or her price to society, has had charges
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dropped, or has been acquitted. See, e.g., R. 18-2, Ex. J at 632
(describing situation of a physician whose booking photographs from
1996 and 2011 remain online even though charges were quickly
dropped after both arrests).
Today, unlike twenty years ago when DFP I issued, it is
implausible to contend that a photo taken at the time of booking is
irrelevant to an individual’s “control of information concerning his or
her person.” See Reporters Committee, 489 U.S. at 763-764 & n.16. See
also Favish, 541 U.S. at 174 (“once there is disclosure, the information
belongs to the general public. There is no mechanism under FOIA for a
protective order allowing only the requester to see whether the
information bears out his theory, or for proscribing its general
dissemination”).
At a bare minimum, the DFP I panel’s majority opinion erred in
holding that there was no privacy interest at all in a mug shot. That
view can no longer be sustained. Settled precedent of the Supreme
Court and this Court makes manifest that, at a minimum, there is a
“non-trivial” privacy interest in these law enforcement records,
necessitating a court to consider whether a countervailing public
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interest exists that outweighs the privacy interest, a balancing test that
the DFP I panel did not undertake.
B. There is No Cognizable Public Interest in Compelling Disclosure Of Mug Shots As a Matter of Course. 1. The Supreme Court has made clear that to be a cognizable
“public interest” under FOIA Exemption 7(C), the disclosure must “shed
light on an agency’s performance of its statutory duties.” Reporters
Comm., 489 U.S. at 762. In other words, the disclosure must inform the
public about “what the[] government is up to,” not simply contain
“information about private citizens that is accumulated in various
governmental files but that reveals little or nothing about an agency’s
own conduct.” Id. at 772-73.
As discussed above, the panel majority in DFP1 determined that
there was no need to consider the public interest prong of FOIA
Exemption 7(C). See 73 F.3d at 97-98. The opinion did, however,
suggest in dicta that, in “limited circumstances,” a qualifying public
interest might be served by release—e.g., where the photographs would
prove that an agency was “detaining the wrong person,” or where a
photograph would provide evidence that the arrestee had been
mistreated. Id. at 98.
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2. This purported “public interest” in disclosing mug shots,
however, does not show that disclosure is warranted here. There was no
allegation in DFP I, nor in the present case, that the government had
“detain[ed] the wrong person,” or that any of the arrestees had been
mistreated. Accordingly, the Supreme Court’s admonition that “[m]ere
speculation about hypothetical public benefits cannot outweigh a
demonstrably significant invasion of privacy” is particularly apt here.
See Department of State v. Ray, 502 U.S. 164, 179 (1991).
Moreover, the speculative exposure of government misconduct
hypothesized in DFP I does not meet the criteria for a cognizable public
interest elaborated by the Supreme Court’s 2004 Favish decision
(decided after DFP I). See Favish, 541 U.S. at 174 (where “the public
interest being asserted is to show that responsible officials acted
negligently or otherwise improperly in the performance of their duties,
the requester must establish more than a bare suspicion in order to
obtain disclosure”). After Favish, a requester who asserts government
misconduct as the relevant public interest must make a “meaningful
evidentiary showing” before the potential misconduct can serve as a
public interest “counterweight” to the privacy interest. Id. at 172-74.
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See Rimmer, 700 F.3d at 258 (applying Favish standard to require
“more than bare allegations of federal malfeasance * * * before the
public interest becomes significant enough to overcome the privacy
concerns embodied in Exemption 7(C)”). Plaintiff in this case has not
even alleged government misconduct here, much less made the
requisite Favish evidentiary showing.
In the instant action, as in Karantsalis, “the public obtains no
discernable [public] interest from viewing the booking photographs,
except perhaps the negligible value of satisfying voyeuristic curiosities.”
See Karantsalis, 635 F.3d at 504. Therefore, the public interest side of
the balancing test in this case is entitled to no weight under settled
FOIA precedent. See Reporters Committee, 489 U.S. at 762.
In sum, the privacy interest at stake here, whether it be
characterized as “non-trivial,” or substantial (but certainly not non-
existent), has been heightened by technological development, and
outweighs the lack of any FOIA-cognizable public interest in disclosure.
As the D.C. Circuit has stated in language that is equally applicable
here, “something * * * outweighs nothing every time.” See Nat’l Ass’n of
Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).
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CONCLUSION
For the foregoing reasons, we urge the panel to indicate that the
matter is ripe for en banc review.
Respectfully submitted,
JOYCE R. BRANDA Acting Assistant Attorney General DOUGLAS N. LETTER LEONARD SCHAITMAN STEVE FRANK (202) 514-4820 Attorneys, Appellate Staff Civil Division, Room 7245 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530
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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the requirements of
Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point
Century Schoolbook, a proportionally spaced font.
I further certify that this brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,371 words,
excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),
according to the count of Microsoft Word.
/s/ Steve Frank STEVE FRANK
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CERTIFICATE OF SERVICE
I hereby certify that on October 30, 2014, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of
Appeals for the Sixth Circuit by using the appellate CM/ECF system. I
certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the appellate CM/ECF system.
/s/ Steve Frank Steve Frank
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DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS UNDER SIXTH CIRCUIT RULE 30(G)(1)
The United States hereby designates the following portions of the
district court record for this Court’s consideration:
Document Description Date Docket Entry Page ID
Amended Complaint 8/10/13 7 98-108
Cross-Motion for 11/26/13 18 346-408 Summary Judgment Cross-Motion for 11/26/13 18-1-A 409-553 Summary Judgment, Ex. A (Bordley Decl.) Cross-Motion for 11/26/13 18-2-B-Q 554-675 Summary Judgment Ex. B-Q Opinion & Order 4/21/14 24 867-900 Judgment 4/21/14 25 901-902 Notice of Appeal 5/22/14 27 905
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