IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH ...blogs.reuters.com/alison-frankel/files/2015/08/... · en banc. has considerable force to it. Yet the reality is that the panel

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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

____________________________________________________

Case: 14-1670 Document: 25 Filed: 10/30/2014 Page: 1

STATEMENT REGARDING ORAL ARGUMENT Appellant respectfully requests oral argument to assist the Court in its

disposition of this case.


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


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

- 37 -


Documents

IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH ...blogs.reuters.com/alison-frankel/files/2015/08/... · en banc. has considerable force to it. Yet the reality is that the panel