Are accused citizens owed a level of privacy when it comes to their booking photos (or "mug shots")? According to a new federal ruling, they are. As the Ohio Association of Criminal Defense Lawyers and the Ohio State Bar Association report, the United States Court of Appeals for the Sixth Circuit has ruled that citizens "enjoy a non-trivial privacy interest in their booking photos." The decision can be read here.
The decision comes just two decades after a ruling from the same court that allowed the release of booking photos of any citizen that appeared in court. That 1996 Freedom of Information Act (FOIA) ruling clashed with Department of Justice policies and the agency continually resisted the decision—often making news outlets take legal action in order to gain access to photos.
The case in question was put forth byThe Detroit Free Press and a group of open government advocates looking for the DoJ to release the photos of three Michigan police officers who had been charged with drug conspiracy. A former decision to protect the photos was upheld by a Sixth Circuit three-judge panel last year, but when the full court was asked to reconsider the ruling, it was reversed in a 9-7 split decision.
The 9-7 Decision
In the split 9-7 decision, the majority cited Free Press II. Exemption 7(C) of the FOIA, which deals with "records or information compiled for law enforcement purposes." Exemption 7(C) requires that the government is allowed to withhold this material if its disclosure could be considered "an unwarranted invasion of personal privacy." In the slip opinion, Judge Deborah Cook, formerly of the Ohio Supreme Court, writes "embarrassing and humiliating facts—particularly those connecting an individual to criminality—qualify" as the material described in Exemption 7(C).
Judge Danny Boggs wrote in dissent of the decision, arguing that a citizen should not expect that level of privacy and that allowing law enforcement to withhold the photos is a public transparency issue. "The majority's emphasis on embarrassment misses the point. ...The fact that a record is embarrassing does not answer the question whether an individual can reasonably expect that record to remain private," he writes.
Attorney Ian Friedman's Take
According to Attorney Friedman, the Sixth Circuit decision is a victory for citizen rights. While some have cited a worrying expansion of allowed secrecy by law enforcement agencies, Attorney Friedman believes that there is a more urgent issue at hand: the rise of Internet access and its use to victimize those who have been accused of crimes in the past. He writes:
"This case will be heavily cited and relied upon by people who may have been booked for violating the law (or not) in the past and now want to put it behind them. Unscrupulous companies have been taking booking photographs and posting them online for profit. When the people contact these companies to request that the photos be taken down, they are given a price that they must pay. It is nothing but blackmail. Hopefully, this decision and more to follow will put these types of companies out of business. When someone has paid their debt to society, they deserve to have their lives fully restored. There is a very good argument now to stop these companies from getting these images in the first place. Needless to say, I am very pleased with this decision."
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