by Derek Gilna

In 2008, World Publishing Company, the publisher of the Tulsa World newspaper, requested six booking photos from the U.S. Marshals Service under the Freedom of Information Act (FOIA). The Department of Justice denied the request, relying upon Exemption 7(C). The paper filed suit, lost in the district court and appealed. The Tenth Circuit affirmed the dismissal, citing Prison Legal News v. Executive Office for U.S. Attorneys, 628 F.3d 1243 (10th Cir. 2011), cert. denied, where disclosure was also denied based on a 7(C) exemption. [See: PLN, Nov. 2011, p.48; March 2010, p.36].

FOIA Exemption 7(C), according to the appellate ruling, exempts “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).

Based on the statutory language, “a three-part test has emerged to determine if information is covered by Exemption 7(C). A court must (1) determine if the information was gathered for a law enforcement purpose; (2) determine whether there is a personal privacy interest at stake; and if there is (3) balance the privacy interest against the public interest in disclosure.”

The Tenth Circuit noted that “in Prison Legal News, this court applied Exemption 7(C) to autopsy photographs and a video taken of the aftermath of a prison murder, notwithstanding that these items were shown to a jury in open court and to the public audience present at trial.”

The Court of Appeals found that detainees have a privacy interest in their booking photos, citing Times Picayune Pub. Corp. v. U.S. Dept of Justice, 37 F.Supp.2d 472 (E.D. La. 1999). In that case, the district court held that the asserted public interest in disclosure of the photos was “hypothetical in nature,” and that TV coverage was adequate for the purpose the mug shots were sought.

The Tenth Circuit also refuted the arguments in favor of disclosure advanced by the Tulsa World, which contended that various other public interests would be advanced by disclosure of the booking photos, including informing citizens of a government agency’s adequate performance of its function. “We agree with the district court that ‘disclosure of federal booking photographs is not likely to contribute significantly to public understanding of federal law enforcement operations or activities,’” the Court of Appeals wrote, concluding that the privacy interest in detainees’ mug shots outweighed the public interest in disclosure of same.

The appellate court further agreed with the district court in denying discovery, stating in its February 22, 2012 opinion that “In general, FOIA request cases are resolved on summary judgment.... The decision whether to allow discovery in FOIA cases is left largely to the discretion of the district court judge.” Consequently, the Tulsa World’s FOIA suit seeking disclosure of the six mug shots was dismissed. See: World Publishing Company v. U.S. Department of Justice, 672 F.3d 825 (10th Cir. 2012).

The Sixth Circuit is the only circuit where booking photos of defendants “in an ongoing criminal proceeding” can be obtained from the U.S. Marshals Service through FOIA requests, based on precedent in Detroit Free Press, Inc. v. De-partment of Justice, 73 F.3d 93 (6th Cir. 1996), rehearing denied. Thus, most news media organizations file FOIA requests for mug shots in a state within the Sixth Circuit – something the Tulsa World should have done to avoid protracted, and ultimately unsuccessful, litigation.

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