Mugshots or Public Interest? Why FOIA Exemption 7(C) Does Not Categorically Exempt Booking Photographs from Disclosure
Booking photographs are a distinct category of records that individuals have requested from the U.S. Marshals Service under the Freedom of Information Act (“FOIA”). While FOIA provides for broad disclosure of agency documents, 5 U.S.C. § 522(b)(7)(C) (“exemption 7(C)” or “7(C)”) protects personal information from being disclosed under FOIA when there is a privacy interest in nondisclosure of law enforcement records, and if a corresponding public interest exists, when the privacy interest in nondisclosure of the photograph prevails over the public interest. In recent years, there has been a surge of “mugshot websites,” which exploit such records by publishing them online and requiring individuals to pay money to have the photographs removed.
This occurrence, coupled with the extensive availability of public records online, has led to more strict protection of U.S. Marshals Service booking photographs, as well as some state legislation prohibiting the use of booking photographs for exploitive mugshot websites. Despite the strong privacy interest in protecting individuals from humiliation, in some circumstances there is an equally strong public interest that fits within the meaning and purpose of FOIA. A limited number of federal courts have considered this issue, resulting in a split among the circuits.
In 2015, the Sixth Circuit affirmed the precedent set forth in Detroit Free Press I, providing that booking photographs are not exempt from disclosure, but also urging the court to rehear the case en banc. This request was met, and now, the Sixth Circuit will rehear Detroit Free Press II, ultimately deciding whether or not to overrule its precedent that booking photographs are not exempt under 7(C) of FOIA. Due to the significant public interest at stake, courts must not take a categorical approach to whether or not these documents are available; in some circumstances, these records contain useful evidence regarding the interworking of a federal agency. Additionally, states and the federal government can enact legislation prohibiting exploitive websites from publishing booking photographs and making money from their removal. Since these records could be crucial in evaluating agency conduct, courts must preserve the ability for booking photographs to be available under FOIA, even if only in very limited circumstances, instead of completely excluding such documents from disclosure. These documents must not be categorically exempt from disclosure under FOIA in order to protect individual privacy and still retain possible access to booking photographs when warranted. A more reasonable approach would provide for ad hoc balancing in circumstances when a significant public interest exists in the disclosure of such records.
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