U.S. can withhold defendants’ mug shots, appeals court says

By Jonathan Stempel

(Reuters) – A federal appeals court on Thursday said the U.S. government can withhold mug shots of federal criminal defendants from the media, citing the privacy interests of those depicted.

The 9-7 decision by the 6th U.S. Circuit Court of Appeals in Cincinnati covers defendants in Ohio, Kentucky, Michigan and Tennessee, and overruled a 1996 decision by the same court.

It is a defeat for the Detroit Free Press, which challenged U.S. marshals’ refusal to release booking photos of four Michigan police officers charged with bribery and drug conspiracy.

Dozens of media supported the newspaper, including the Associated Press, Bloomberg, CNN, the New York Times, News Corp and the Washington Post.

Writing for the majority, Circuit Judge Deborah Cook said booking photos need not be released when requested by media under the federal Freedom of Information Act.

She said the internet gives criminal defendants a “non-trivial” privacy interest in their photos, which can stay online for years, that they lacked in 1996, when photos might appear on TV or in print media and then never been seen again.

“A disclosed booking photo casts a long, damaging shadow over the depicted individual,” Cook wrote. “In 1996, this court could not have known or expected that a booking photo could haunt the depicted individual for decades. Experience has taught us otherwise.”

The decision reversed an August 2015 ruling by a three-judge 6th Circuit panel. It brought that court in line with the 10th and 11th federal circuit appeals courts, which cover several Midwest, Mountain and Southeast U.S. states.

“Faces are an essential part of defendants’ identity,” said Herschel Fink, in-house counsel to the Detroit Free Press, in an interview. “The premise of the majority decision was that the internet changes everything, and it doesn’t.

“We are heartened that the vote was so close, and are certainly thinking seriously about asking the Supreme Court to make the final call,” he added.

The U.S. Department of Justice did not immediately respond to a request for comment.

Writing for the dissenters, Circuit Judge Danny Boggs said suppressing booking photos can make it harder for the public to learn how the government treats people it detains.

“All that today’s decision does is provide DOJ with a tool to selectively shield itself from public scrutiny,” Boggs wrote. “Open government is too dear a cost to pay for the mirage of privacy that the majority has to offer.”

The case is Detroit Free Press Inc v U.S. Department of Justice, 6th U.S. Circuit Court of Appeals, No. 14-1670.

(Reporting by Jonathan Stempel in New York; Editing by Tom Brown)