Detroit Free Press Inc. v. U.S. Dep't of Justice

829 F.3d 478

Detroit Free Press Inc., Plaintiff–Appellee

v.United States Department of Justice, Defendant–Appellant.

No. 14-1670

United States Court of Appeals, Sixth Circuit.

Argued: March 9, 2016

Decided and Filed: July 14, 2016

ARGUED: Steve Frank, United States Department of Justice, Washington, D.C., for Appellant. Robert M. Loeb, Orrick, Herrington & Sutcliffe LLP, Washington, D.C., for Appellee. ON BRIEF: Steve Frank, United States Department of Justice, Washington, D.C., for Appellant. Robert M. Loeb, Thomas M. Bondy, Orrick, Herrington & Sutcliffe LLP, Washington, D.C., Paul R. McAdoo, Aaron & Sanders PLLC, Nashville, Tennessee, Brian P. Goldman, Cynthia B. Stein, Orrick, Herrington & Sutcliffe LLP, San Francisco, California, Herschel P. Fink, Detroit Free Press, Inc., Detroit, Michigan, for Appellee. Daniel J. Klau, McElroy, Deutsch, Mulvaney & Carpenter, LLP, Hartford, Connecticut, David Marburger, Marburger Law LLC, Cleveland, Ohio, for Amici Curiae.

Before: COLE, Chief Judge; GUY, BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Circuit Judges.

COOK, J., delivered the opinion of the court in which COLE, C.J., and GUY, GIBBONS, ROGERS, SUTTON, McKEAGUE, KETHLEDGE, and WHITE, JJ., joined. COLE, C.J. (pp. 485–86), delivered a separate concurring opinion. BOGGS, J. (pp. 486–94), delivered a separate dissenting opinion in which BATCHELDER, MOORE, CLAY, GRIFFIN, STRANCH, and DONALD, JJ., joined.

OPINION

COOK, Circuit Judge.

In 1996, we held that the Freedom of Information Act (FOIA), 5 U.S.C. § 552, required the release of booking photos of criminal defendants who have appeared in court during ongoing proceedings, finding that criminal defendants lack any privacy interest in the photos. Detroit Free Press, Inc. v. Dep't of Justice (Free Press I ), 73 F.3d 93 (6th Cir. 1996). Twenty years and two contrary circuit-level decisions later, we find Free Press I untenable. Individuals enjoy a non-trivial privacy interest in their booking photos. We therefore overrule Free Press I .

I.

FOIA implements “a general philosophy of full agency disclosure” of government records, U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 754, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting Dep't of the Air Force v. Rose , 425 U.S. 352, 360, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ), requiring federal agencies to make their records “promptly available” to any person who requests them, 5 U.S.C. § 552(a)(2)–(3). An agency may withhold or redact information that falls within one of nine statutory exemptions. Id. § 552(b). Exemption 7(C), at issue here, permits agencies to refuse requests for “records or information compiled for law enforcement purposes” if public release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C).

Free Press I held that “no privacy rights are implicated” by releasing booking photos “in an ongoing criminal proceeding, in which the names of the defendants have already been divulged and in which the defendants themselves have already appeared in open court.” Free Press I , 73 F.3d at 97. Under those conditions, booking photos reveal “[n]o new information that ... indictees would not wish to divulge” to the public. Id. The court bypassed deciding whether releasing the images following acquittals, dismissals, or convictions would implicate privacy interests. Id.

Bound by Free Press I, the United States Marshals Service (USMS) adopted a “bifurcated policy” for releasing booking photos. Within the Sixth Circuit's jurisdiction, the USMS would honor all requests for photos under the circumstances outlined in Free Press I . Outside the Sixth Circuit, however, the USMS continued to follow its long-standing policy of refusing requests for booking photos. “Straw man” requesters in Michigan, Ohio, Kentucky, and Tennessee accordingly exploited the policy to obtain photos maintained in other jurisdictions, securing Bernie Madoff's booking photo in one prominent example.

The USMS's patchwork disclosure system persisted until the Tenth and Eleventh Circuits considered booking-photo disclosure and disagreed with Free Press I 's analysis. See World Publ'g Co. v. U.S. Dep't of Justice , 672 F.3d 825 (10th Cir. 2012) ; Karantsalis v. U.S. Dep't of Justice , 635 F.3d 497 (11th Cir. 2011) (per curiam) (adopting district court opinion), cert. denied , ––– U.S. ––––, 132 S.Ct. 1141, 181 L.Ed.2d 1017 (2012). Bolstered by these decisions, the USMS abandoned the bifurcated policy in 2012 and refused—nationwide—to honor FOIA requests for booking photos.

Accordingly, when Detroit Free Press (DFP) requested the booking photos of four Michigan police officers charged with bribery and drug conspiracy, the Deputy U.S. Marshal for the Eastern District of Michigan denied the request. In the lawsuit that followed, both the district court and the panel, constrained by Free Press I , ordered disclosure. We granted rehearing en banc to reconsider whether there is a personal-privacy interest in booking photos.

II .

A. Exemption 7(C)'s Personal-Privacy Interest

Exemption 7(C) prevents disclosure when: (1) the information was compiled for law enforcement purposes and (2) the disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Neither party disputes that booking photos meet the first requirement. The second requires that we “balance the public interest in disclosure against the [privacy] interest Congress intended [Exemption 7(C) ] to protect.” Reporters Comm. , 489 U.S. at 776, 109 S.Ct. 1468. The government shoulders the burden of showing that Exemption 7(C) shields the requested information from disclosure. 5 U.S.C. § 552(a)(4)(B).

The Supreme Court has described Exemption 7(C) as reflecting privacy interests in “avoiding disclosure of personal matters,” Reporters Comm. , 489 U.S. at 762, 109 S.Ct. 1468, maintaining “the individual's control of information concerning his or her person,” id . at 763, 109 S.Ct. 1468, avoiding “disclosure of records containing personal details about private citizens,” id . at 766, 109 S.Ct. 1468, and “keeping personal facts away from the public eye,” id . at 769, 109 S.Ct. 1468. Embarrassing and humiliating facts—particularly those connecting an individual to criminality—qualify for these descriptors. See, e.g. , id. at 771, 109 S.Ct. 1468 (finding a privacy interest in criminal rap sheets); Union Leader Corp. v. U.S. Dep't of Homeland Sec. , 749 F.3d 45, 53 (1st Cir. 2014) (the names of arrestees); Rimmer v. Holder , 700 F.3d 246, 257 (6th Cir. 2012) (the names and identifying information of individuals associated with investigation of a murder); ACLU v. U.S. Dep't of Justice , 655 F.3d 1, 8 (D.C. Cir. 2011) (the fact of an individual's conviction and corresponding docket number); McCutchen v. U.S. Dep't of Health & Human Servs. , 30 F.3d 183, 187–88 (D.C. Cir. 1994) (a researcher's investigation and exoneration for academic-integrity concerns); Kiraly v. FBI , 728 F.2d 273, 277 (6th Cir. 1984) (FBI files identifying individuals suspected of criminal activity but not indicted or tried).

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. Karantsalis , 635 F.3d at 503. More than just “vivid symbol[s] of criminal accusation ,” booking photos convey guilt to the viewer. Id. (emphasis added). Indeed, viewers so uniformly associate booking photos with guilt and criminality that we strongly disfavor showing such photos to criminal juries. See United States v. Irorere , 69 Fed.Appx. 231, 235 (6th Cir. 2003) (“[T]he Sixth Circuit has condemned the practice of showing ‘mug shot’ evidence to a jury ‘as effectively eliminating the presumption of innocence and replacing it with an unmistakable badge of criminality.’ ” (quoting Eberhardt v. Bordenkircher , 605 F.2d 275, 280 (6th Cir. 1979) )); see also United States v. McCoy , 848 F.2d 743, 745–46 (6th Cir. 1988) (finding the district court erred in overruling an objection to lineup photos, which “suggest that [the defendant] is a ‘bad guy’ who belongs in jail”). This alone establishes a non-trivial privacy interest in booking photos.

Other considerations gleaned from Supreme Court decisions strengthen our conclusion. For example, the Court noted that the Exemption 7(C) privacy interest “must be understood ... in light of the consequences that would follow” from unlimited disclosure. See Nat'l Archives & Records Admin. v. Favish , 541 U.S. 157, 170, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) ; see also ACLU , 655 F.3d at 7 (“[C]ourts have taken into consideration potential derivative uses of that information.”). In Favish, the Court recognized family members' privacy interest in death-scene images of their loved one, noting that the deceased's abusers or murderers could request records under FOIA. 541 U.S. at 170, 124 S.Ct. 1570. Leaving the government leeway “to deny these gruesome requests in appropriate cases” factored into the Court's decision to recognize a statutory privacy interest. Id . And modern technology only heightens the consequences of disclosure—“in today's society the computer can accumulate and store information that would otherwise have surely been forgotten.” Reporters Comm. , 489 U.S. at 771, 109 S.Ct. 1468 ; see also Favish , 541 U.S. at 167, 124 S.Ct. 1570.

A disclosed booking photo casts a long, damaging shadow over the depicted individual. In 1996, when we decided Free Press I , 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.¹ In fact, mug-shot...