Should Publicly Available Mugshots Be Permissible?

Efrain Alvarado III

Detroit Free Press, Inc. v. United States Department of Justice (2016) was a case where the Freedom of Information Act (1966) was applied to the issue of publicly available mugshot photos. The issue at hand was to determine whether or not the public availability of mugshots constituted a violation of citizen’s privacy rights. The Detroit Free Press filed a Freedom of Information Act request with the U.S. Marshal’s Office for the mugshots of 4 police officers who were charged with multiple instances of public corruption, and promptly had the request denied. They sued the Department of Justice, with attorney Robert Loeb arguing that a century-long precedent of state jurisdictions (including Michigan’s, where the case originated) releasing mugshots had been established, and that the mugshots of the accused officers ought to be released in accordance with the Freedom of Information Act.

In denying the Detroit Free Press’ request for the mugshots of the four accused officers, the U.S. Marshals Service cited FOIA’s Exemption 7(C). From the Harvard Law Review, “Exemption 7(C) of FOIA allows agencies to withhold disclosure of ‘information compiled for law enforcement purposes’ when producing such records ‘could reasonably be expected to constitute an unwarranted invasion of personal privacy.’” Their argument was that mugshots, which capture people at an embarrassing and vulnerable state, are qualified under Exemption 7(C) as potentially harmful information only on a case-by-case basis. The Sixth Circuit ultimately held that “individuals enjoy a non-trivial privacy interest in their booking photos’ even after appearing in open court, and that booking photos may be exempt from disclosure under Exemption 7(C) on a case-by-case basis.” Judge Cook also cited the fact that like rap sheets, mugshots are not publicly available information, and made clear that federal courts maintained jurisdiction over state courts regarding the issue of whether or not people’s right to privacy was being infringed upon in cases such as this one.

I do concur with the ruling, but I find it problematic that Judge Cook specifically said that the photos may be exempt from disclosure only on a case-by-case basis for the purpose of protecting the government from self-harm. I think this gives credence to the Detroit Free Press Attorney’s argument that the Sixth Circuit Court’s ruling had more to do with protecting federal institutions from self-harming rather than protecting citizens’ privacy rights under Exemption 7(C) of the FOIA. After the close 9-7 ruling against Detroit Free Press, Inc. he said they’ll try the case in the Supreme Court if possible (it’s currently in the docket). As farfetched as that notion may be considering the fact that the new presidential administration has elected a conservative judge to the Court, I think he has a chance at winning because of the validity of their argument. This case-by-case provision included by Judge Cook in the seemingly favorable ruling (not releasing the police officers’ mugshots despite the fact that they were convicted) does seem like a convenient way for the judiciary to protect the federal government while continuing to undermine the true issue of citizens’ right to privacy in the case of mugshots. Entire businesses exist that profit from extorting people to pay for their mugshot to be removed from their website, a process that is often dragged out until more money is extorted from those seeking to have their mugshot removed. Oftentimes these are not simply murderers or rapists, but rather regular people who may have been arrested for a DUI/DWI or simple Drug Possesion etc. I hope that if this case is heard by the Supreme Court, they factor in the undeniable truth that the internet has changed the landscape of having mugshots publicly available. Perhaps a non-arbitrary line can be drawn by the SCOTUS that established certain crimes (capital crimes, violent crimes, sexual assault crimes, corporate crimes etc.) that the public is still entitled to know about to preserve national security.

Works Cited

Baldas, T. (2016, July 14). Appeals court rules feds can withhold criminal mug shots. Retrieved February 06, 2017, from http://www.freep.com/story/news/2016/07/14/high-court-rules-public-has-no-right-see-mug-shots/87092690/

Detroit Free Press, Inc. v. United States Department of Justice. (2017, January 5). Retrieved February 05, 2017, from http://harvardlawreview.org/2017/01/detroit-free-press-inc-v-united-states-department-of-justice/

Howard, K. (2017, February 09). Detroit Free Press, Inc. v. Department of Justice. Retrieved February 05, 2017, from http://www.scotusblog.com/case-files/cases/detroit-free-press-inc-v-department-justice/

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