89.1 WEMU

Appeals Court Says Booking Photos Exempt From Federal FOIA

Jul 15, 2016

U.S. 6th Circuit Court of Appeals Seal
Credit Wikipedia Media Commons / wikipedia.org

The US Sixth Circuit Court of Appeals says booking photos in federal cases are not automatically available to the public.  


The US Sixth Circuit Court of Appeals says, in the age of the internet, the release of a suspect’s police booking photos can cause permanent shame, and that’s why it ruled booking photos are exempt from the federal Freedom of Information Act.  The panel of judges ruled in a very closely divided 9-7 decision that reversed a 20-year-old precedent in a similar case.

The US Justice Department was defending its refusal to release to the The Detroit Free Press mug shots of four police officers accused in a federal corruption case.

From the decision:

“A disclosed booking photo casts a long, damaging shadow over the depicted individual.  In 1996 … booking photos appeared on television or in the newspaper and then, for all practical purposes, disappeared.  Today, an idle internet search reveals the same booking photo that once would have required a trip to the local library’s microfiche collection.” 

The decision said mug shots are so prejudicial that judges often won’t allow them to be shown to juries. 

Again, from the decision:

“Booking photos—snapped 'in the vulnerable and embarrassing moments immediately after [an individual is] accused, taken into custody, and deprived of most liberties'—fit squarely within this realm of embarrassing and humiliating information.” 

Free Press attorney Herschel Fink said this might not be the final word on the matter.  “I think that’s a real loss of transparency for the people,” he said.  “It remains to be seen whether or not we take this one more step up the ladder and ask the US Supreme Court to weigh in on this.” 

The Sixth Circuit was the only remaining circuit in the country to require the release of booking photos under open government laws.  The decision does not directly affect state freedom of information laws. 

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— Rick Pluta is the Managing Editor and Reporter for the Michigan Public Radio network.  Contact WEMU News at 734.487.3363 or email us at studio@wemu.org