()

The Detroit Free Press is asking the U.S. Supreme Court to reverse a court decision that restricts public access to the mug shots of federal criminal defendants.

Booking photos provide an “important window” into the government’s exercise of its police powers, the media outlet said in its petition in Detroit Free Press v. U.S. Department of Justice.

The U.S. Court of Appeals for the Sixth Circuit in July ruled that Congress intended to exempt mug shots from disclosure under the Freedom of Information Act because of “possible embarrassment and the existence of the internet.”

The full Sixth Circuit, in its 9-7 decision, said booking photos fell within an exemption of the public-records law that allows law enforcement records to be kept secret if public disclosure “could reasonably be expected to constitute an unwarranted invocation of personal privacy.”

That exemption, the Sixth Circuit majority found, was intended to avoid disclosure of embarrassing and humiliating facts. Mug shots fall “squarely within this realm” and “cast a long, damaging shadow over the depicted individual,” according to the majority.

In ruling that disclosures should be made by law enforcement on a case-by-case basis, the circuit court overturned its own 1996 decision in Detroit Free Press v. Department of Justice. That earlier panel decision found no invasion of personal privacy where a defendant “had already been identified by name by the federal government” and his or her image had been revealed “during prior judicial appearances.”

Sixth Circuit Judge Deborah Cook, writing for the majority in the court’s decision this summer, said the appeals court, in 1996, “could not have known or expected that a booking photo could haunt the depicted individual for decades.”

Two other circuits—the Eleventh and Tenth—recognize that individuals have a privacy interest in preventing the disclosure of mug shots, Cook note. The Eleventh Circuit covers Florida, Georgia and Alabama, and the Tenth Circuit is made up by Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

In its high court petition, the Detroit Free Press, represented by Robert Loeb of Orrick, Herrington & Sutcliffe, asked the justices whether the Freedom of Information Act requires “disclosure of booking photos of publicly named, federal indictees who have already appeared in open court?”

The challenge stems from a public-records request by the newspaper in 2013 for the booking photos of four Michigan police officers who were indicted on federal corruption and drug conspiracy charges. Each officer’s name had been made public and each had appeared in open court, but the U.S. Marshals Service denied the request for mug shots of the officers.

Relying on the Sixth Circuit’s 1996 precedent, a federal district court ruled for the newspaper. A three-judge panel in 2015 upheld the trial ruling but urged the full court to reconsider the 1996 precedent.

“The Supreme Court’s approach is rooted in legislative intent, common law and history,” Loeb said. “In contrast, the court of appeals just looked at whether they think the information is embarrassing. If that and the possibility of access on the internet is the test, then access to government law enforcement records will be severely restricted. That is why this case is so critically important and why the court needs to step in now.”

Most states, Loeb said, release booking photos for state and local arrests. At the federal level, public-records requests for booking photos of defendants arrested on felonies were honored only in the Sixth Circuit—until the July decision.

The Justice Department’s response to the petition is due Dec. 28.

The Detroit Free Press petition in the Supreme Court is posted below.

The






Detroit Free Press
is asking the U.S. Supreme Court to reverse a court decision that restricts public access to the mug shots of federal criminal defendants.

Booking photos provide an “important window” into the government’s exercise of its police powers, the media outlet said in its petition in






Detroit Free Press
v. U.S. Department of Justice
.

The U.S. Court of Appeals for the Sixth Circuit in July ruled that Congress intended to exempt mug shots from disclosure under the Freedom of Information Act because of “possible embarrassment and the existence of the internet.”

The full Sixth Circuit, in its 9-7 decision, said booking photos fell within an exemption of the public-records law that allows law enforcement records to be kept secret if public disclosure “could reasonably be expected to constitute an unwarranted invocation of personal privacy.”

That exemption, the Sixth Circuit majority found, was intended to avoid disclosure of embarrassing and humiliating facts. Mug shots fall “squarely within this realm” and “cast a long, damaging shadow over the depicted individual,” according to the majority.

In ruling that disclosures should be made by law enforcement on a case-by-case basis, the circuit court overturned its own 1996 decision in






Detroit Free Press
v. Department of Justice
. That earlier panel decision found no invasion of personal privacy where a defendant “had already been identified by name by the federal government” and his or her image had been revealed “during prior judicial appearances.”

Sixth Circuit Judge Deborah Cook, writing for the majority in the court’s decision this summer, said the appeals court, in 1996, “could not have known or expected that a booking photo could haunt the depicted individual for decades.”

Two other circuits—the Eleventh and Tenth—recognize that individuals have a privacy interest in preventing the disclosure of mug shots, Cook note. The Eleventh Circuit covers Florida, Georgia and Alabama, and the Tenth Circuit is made up by Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

In its high court petition, the






Detroit Free Press
, represented by Robert Loeb of









































































































































Orrick, Herrington & Sutcliffe,
asked the justices whether the Freedom of Information Act requires “disclosure of booking photos of publicly named, federal indictees who have already appeared in open court?”

The challenge stems from a public-records request by the newspaper in 2013 for the booking photos of four Michigan police officers who were indicted on federal corruption and drug conspiracy charges. Each officer’s name had been made public and each had appeared in open court, but the U.S. Marshals Service denied the request for mug shots of the officers.

Relying on the Sixth Circuit’s 1996 precedent, a federal district court ruled for the newspaper. A three-judge panel in 2015 upheld the trial ruling but urged the full court to reconsider the 1996 precedent.

“The Supreme Court’s approach is rooted in legislative intent, common law and history,” Loeb said. “In contrast, the court of appeals just looked at whether they think the information is embarrassing. If that and the possibility of access on the internet is the test, then access to government law enforcement records will be severely restricted. That is why this case is so critically important and why the court needs to step in now.”

Most states, Loeb said, release booking photos for state and local arrests. At the federal level, public-records requests for booking photos of defendants arrested on felonies were honored only in the Sixth Circuit—until the July decision.

The Justice Department’s response to the petition is due Dec. 28.

The






Detroit Free Press
petition in the Supreme Court is posted below.