Lead Opinion
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
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),
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,
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,
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 Madoffs 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,
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.,
The Supreme Court has described Exemption 7(C) as reflecting privacy interests in “avoiding disclosure of personal matters,” Reporters Comm.,
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,
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,
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.
B. DFP’s Arguments
Against the privacy interest elucidated above, DFP interposes the Constitution, the common law and traditional understandings of privacy, the absence of a “web of federal statutory and regulatory provisions” limiting disclosure, and the fact that most states allow mugshot disclosure. DFP posits that FOIA facilitates a free flow of information lacking a background of privacy protection in state and federal law. See Favish,
1. The Constitution
DFP overemphasizes the Constitution’s role in defining statutory privacy rights. Indeed, in Reporters Committee, the Court shrugged off the lack of a constitutional right to privacy in information connecting an individual to criminal activity before recognizing a statutory right to privacy in the same type of information.
2. The Common Law and Legal Traditions
Next, DFP invokes the common law and legal traditions as sanctioning publication of criminal activity. Closely intertwined with public trials, booking photos form part of the public record, and the common law recognizes no invasion-of-privacy tort remedy for publicizing facts in the public record. See Restatement (Second) of Torts § 652D cmt. b (1977); see also id. cmt. f, illus. 13.
The common law and American legal traditions leave undisturbed an existing statutory privacy interest. Even when information concerning. an individual’s person becomes part of the public record, “one d[oes] not necessarily forfeit a privacy interest,” though the interest “dimin-ishe[s].” Reporters Comm.,
The dissent’s focus on the historic use of “rogues’ galleries” only confirms the risks at hand&emdash;that the public has long wanted to look at these photos. But that says nothing about the individual’s privacy interest. Surely there can exist both a strong public interest in a mug-shot’s disclosure and a strong privacy interest.
3. State and Federal Laws
Persisting, DFP highlights that some states statutorily mandate the release of booking photos and urges us to follow their lead. See, e.g., Minn. Stat. § 13.82(26)(b) (“[A] booking photograph is public data.”); Neb. Rev. Stat. § 29-3521(1) (noting that “photographs taken in conjunction with an arrest” are public records); Va. Code Ann. § 2.2-3706(A)(l)(b) (ordering release of “[a]dult arrestee photographs taken during the initial intake” unless certain exceptions aPPly)- True, but other states require FOIA-like balancing of public and private interests before disclosing booking photos. See, e.g., 21 Kan. Op. Atty. Gen. 9, No. 87-25,
Decidedly mixed, state laws favor neither wholesale disclosure nor nondisclosure. Regardless, “[sjtate policies ... do not determine” Exemption 7(C)’s meaning, but can evidence broad acceptance of a significant privacy interest. Reporters Comm.,
Free Press Fs finding that “no privacy rights are implicated” by booking photos embodies an impermissibly cramped notion of personal privacy that is out of step with the broad privacy interests recognized by our sister circuits. See, e.g., Union Leader Corp.,
III.
Having found a non-trivial privacy interest, the court must balance that interest against the public’s interest in disclosure. The USMS favors balancing these
The public’s interest in disclosure depends on “the extent to which disclosure would serve the ‘core purpose of the FOIA,’ which is ‘contributing] significantly to public understanding of the operations or activities of the government.’ ” U.S. Dep’t of Def. v. Fed. Labor Relations Auth.,
Favoring a categorical rule over case-by-case balancing, the dissent highlights the public importance of disclosure by pointing to the possibility of mistaken identity, impermissible profiling, and arrestee abuse. But these are phantoms. In cases of mistaken identity, arrestees are not going to protest using their booking photos to show that they are not the villain. Such arres-tees undoubtedly will want the booking photo released so that they too can be released. The same goes for profiling and arrestee abuse. The privacy interest in a booking photo is the defendant’s, and he or she can waive that interest.
IV.
In 1996, this court could not have known or expected that a booking photo could haunt the depicted individual for decades. See Free Press I,
Notes
. Beginning in 1997, the U.S. Census Bureau asked Americans about internet access and found that less than one-fifth of American households had internet access at home. By 2013, that number jumped to 74.4%. Thom File & Camille Ryan, Computer and Internet Use in the United States: 2013, U.S. Census Bureau, 2 (2014), http://www.census:gov/ content/dam/Census/library/publications/2014/ acs/acs-28.pdf; Thom File, Computer and Internet Use in the United States, U.S. Census Bureau, 1 (2013), http://www.census.gov/ prod/2013pubs/p20-569.pdf.
Concurrence Opinion
concurring.
I agree with the majority that criminal defendants have a non-trivial privacy interest in their booking photographs. And I agree that the time has come to overrule our decades-old decision in Detroit Free Press, Inc. v. Dep’t of Justice (Free Press I),
First, Exemption 7(C) of the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(C), plainly extends to a private individual’s desire to avoid disclosure of personal details that may be humiliating, embarrassing, or painful. See Nat’l Archives & Records Admin. v. Favish,
Twenty years ago, we thought that the disclosure of booking photographs, in ongoing criminal proceedings, would do no harm. But time has taught us otherwise. The internet and social media have worked unpredictable changes in the way photographs are stored and shared. Photographs no longer have a shelf life, and they can be instantaneously disseminated for malevolent purposes. Mugshots now present an acute problem in the digital age: these images preserve the indignity of a deprivation of liberty, often at the (literal) expense of the most vulnerable among us. Look no further than the online mugshot-extortion business. In my view, Free Press / — though standing on solid ground at the time — has become “inconsistent with the sense of justice.” See B. Cardozo, The Nature of the Judicial Process 150 (1921). These evolving circumstances permit the court to change course.
Second, I understand the majority’s approach as simply “providing a workable formula which encompasses, balances, and protects all interests.” See S. Rep. No. 89-813, at 38 (1965). Congress structured Exemption 7(C) to at once promote “a general philosophy of full agency disclosure” and “protect certain equally important rights of privacy.” Id.; see also U.S. Dep’t of Def. v. FLRA,
Today’s opinion, as I read it, does not foreclose the possibility that, in the appropriate case, a requester might make a meaningful showing of the “significant public interest” in “reveal[ing] the circumstances surrounding an arrest and initial incarceration.” See Free Press I,
With this explanation, I join the majority’s persuasive opinion in full.
Dissenting Opinion
dissenting.
More than twenty years ago, this court determined that the Freedom of Information Act, a federal statute dedicated to open government, requires the release of federal indictees’ booking photographs. The Supreme Court did not correct our reading, and neither did Congress. Nevertheless, today’s majority reverses that determination, citing as justification only a vague privacy interest in inherently non-private matters. Today’s decision obscures our government’s most coercive functions — the powers to detain and accuse— and returns them to the shadows. Open government is too dear a cost to pay for the mirage of privacy that the majority has to offer. I respectfully dissent.
I
Congress passed the Freedom of Information Act (FOIA), 5 U.S.C. § 552, with the purpose of “opening] agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose,
One of those “narrow” exemptions, Exemption 7(C), allows federal agencies to refuse requests for “records or information compiled for law enforcement purposes” when their public release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Because neither party disputes that booking photographs are “records or information compiled for law enforcement purposes,” Exemption 7(C) prompts only two questions in this case. The first is whether booking photographs contain the sort of “intimate personal” information that the law has traditionally considered to be private. Favish,
II
Exemption 7(C) allows the government to withhold only those records that invade a cognizable personal privacy interest. 5 U.S.C. § 552(b)(7)(C). It is well settled that not every personal privacy interest counts, and the mere possibility that information might embarrass is not sufficient. See Schell v. U.S. Dep’t of Health & Human Servs.,
A
Controversy surrounding booking photographs, which began soon after American police departments acquired photographic technology in the second half of the nineteenth century, is nothing new. Simone Browne, Race and Surveillance, in Routledge Handbook of Surveillance Studies 72, 74 (Kirstie Ball et al. eds., 2012). By the end of that century, police had begun to compile booking photographs of detainees — convicted or not — and created books and rooms of the portraits called “rogues’ galleries.” See, e.g., Blume v. State,
Just as today, these early booking photographs brought with them consequences for those depicted. In 1859, the American Journal of Photography observed that “[a]s soon as a rascal becomes dangerous to the public, he is taken to the Rogues’ Gallery and is compelled to leave his likeness there, and from that time on he may be known to any one.” Alan Trachtenberg, Reading American Photographs 29 (6th prtg. 1999) (quoting 2 Am. J. Photography 75, 75-77 (1859)). That likeness would remain on public display long after conviction, see Pa. Prison Soc’y, One Hundred and Second Annual Report, reprinted in 28 J. Prison Discipline 5, 29 (1889), and those photographed often endured “shame, humiliation, and disgrace,” Leger v. Warren,
Nevertheless, the collection and exhibition of booking photographs went unchallenged for decades, and in the absence of a common-law right to privacy, courts rejected early efforts to enjoin the practices. See Owen v. Partridge,
The court’s view was by no means singular. See Shaffer v. United States,
Early reluctance to interfere with police photography is perhaps unsurprising given that the common law has traditionally protected public access to criminal proceedings. This “tradition of accessibility” was a fundamental aspect of English common law, Globe Newspaper Co. v. Superior Court,
B
The result of the traditional common-law rule was not universally popular, see, e.g., Editorial, 16 Am. Law. 51, 52 (1908); Recent Cases, 13 Yale L.J. 51, 51 (1904), and some courts and legislatures intervened to protect the likenesses of “honest” individuals who had not been convicted, Itzkovitch v. Whitaker,
Thus the outcome of lawsuits against newspapers for publishing photographs of those accused of crimes. Rejecting the no-, tion that arrestees have a legitimate privacy interest in their photographs after indictment, courts have explained that, once indicted, individuals become figures of public interest. Publishing their photographs is thus not an invasion of privacy. See Frith v. Associated Press,
The Restatement of Torts confirms that individuals accused of criminal activity have no cognizable privacy interest with respect to their prosecution because they are “persons of public interest, concerning whom the public is entitled to be informed.” 3 Restatement (Second) of Torts § 652D cmt. f, at 389. In one particularly apposite illustration, the Restatement provides:
*490 A is tried for murder and acquitted. During and immediately after the trial B Newspaper publishes daily reports of it, together with pictures and descriptions of A and accounts of his past history and daily life prior to the trial. This is not an invasion of A’s privacy.
Id. § 652D ill. 13, at 390.
In sum, it appears that the common law did not, and does not now, recognize an indicted defendant’s interest in preventing the disclosure of his booking photograph during ongoing criminal proceedings.
C
Consistent with historical practice and state cpmmon law, the vast majority of states do not recognize a statutory privacy interest that would require state and local authorities to withhold booking photographs in the ordinary case. See, e.g., Opinion No. 03-205, 86 Op. Cal. Att’y Gen. 132, 132-37 (2003); Opinion of June 14, 2007, 92 Md. Op. Att’y Gen. 26, 49. Booking photographs are either available, or presumptively available, to the public under the law of most states. Br. of Amici Curiae Reporters Committee for Freedom of the Press et al. 7; see, e.g., Minn. Stat. § 13.82, subdiv. 26(b); N.D. Cent. Code § 44-04-18.7(2)(i); Neb. Rev. Stat. § 29-3521; Okla. Stat. tit. 51, § 24A.8(A); Va. Code Ann. § 2.2-3706(A)(1)(b); Patterson v. Allegan Cty. Sheriff,
The majority counters that state policies are not conclusive as to Exemption 7(C)’s meaning, and urges that DOJ’s regulations and policies are “[mjore important to the FOIA analysis.” Majority Op. at 484. But DOJ’s own actions undercut its position that individuals have a strong privacy interest in their booking photographs. It was not long ago that DOJ sought to use booking photographs as evidence in criminal proceedings, see, e.g., United States v. Rodriguez,
D
The above-described background of history, common law, and state and federal practice gives meaning to the words “personal privacy” in Exemption 7(C), arid suggests that an individual has no cognizable privacy interest in his booking photograph once he has already been indicted and has appeared in open court. Disregarding this legal backdrop, the majority emphasizes the embarrassment that a booking photograph may cause to the depicted individual. Majority Op. at 481-82. Even if an
In an age in which law enforcement routinely makes booking photographs available to the press, the public has come to expect that such photographs will be accessible. See, e.g., Larry McDermott, Where Are Photos of Church Fire Suspects?, The Republican, Jan. 5, 2009, at C7. Those who are arrested are aware of this reality, and some even use their booking photographs as a way to communicate with the public. See, e.g., Giacomo Papi, Under Arrest 177 (2006) (describing booking photograph in which “Steve McQueen raises his hand in a peace sign”); Joe Tacopino, Perry’s Mug of Defiance, N.Y. Post, Aug. 20, 2014, at 25 (“Texas Gov. Rick Perry gave a confident smile as he posed for his mug shot_”); Snippets, Hous. Chron., Apr. 15, 1996, at 2 (describing booking photograph in which Jane Fonda “do[es] [a] ‘Power to the People’ raised-fist salute”). Unlike deeply personal matters, such as the death-scene images at issue in National Archives & Records Administration v. Favish,
Of course, an individual can have a statutory privacy interest in information that is public. In United States Department of Justice v. Reporters Committee for Freedom of the Press,
The majority also puts great emphasis on the fact that “an idle internet search reveals the same booking photo that once would have required a trip to the local library’s microfiche collection.” Majority Op. at 482. That is undoubtedly true. But the same could be said of any of the now-digitized information that was once hidden away in the dusty basements of courthouses and libraries. Surely the majority would not agree that an individual has a cognizable privacy interest in his court filings or public statements simply because they too may turn up in an “idle internet search.” If anything, the ease with which a third party today can find an individuals indictment and arrest would seem to cut against finding a cognizable privacy interest in booking photographs. Cf. ACLU v. U.S. Dep’t of Justice,
In sum, the majority is able to find a privacy right in booking photographs only by espousing a narrow conception of public information that is out of step with the “literal understanding]” of privacy. Reporters Comm.,
Ill
Even if an indicted individual has a privacy interest in his booking photograph, whatever invasion of privacy disclosure occasions is not “unwarranted” in light of the weighty public interests that disclosure serves. Public oversight is essential in criminal proceedings, in which the government wields the power to place the individual in jeopardy of imprisonment. Closing a window into such proceedings undermines the public confidence that is essential to any effective criminal-justice system, for it is “difficult for [citizens] to accept what they are prohibited from observing.” Richmond Newspapers,
Measured against the photographed individual’s meager interest in avoiding the disclosure of matters that are largely available in the public domain, see ACLU,
Moreover, booking photographs also reveal what populations the government prosecutes — black or white, young or old, female or male — and for what sorts of alleged crimes. Their release may raise questions about prosecutorial decisions, enabling the public to detect and hold to account prosecutors who disproportionately charge or overlook defendants of a particular background or demographic. Such oversight is important in a system such as ours, in which prosecutors enjoy wide discretion in choosing whom to charge. See United States v. Armstrong,
Booking photographs can also help the public learn about what the government does to those whom it detains. In Free Press I, we explained that “[h]ad the now-famous videotape of the Rodney King beating in Los Angeles never been made, a mug shot of Mr. King released to the media would have alerted the world that the arrestee had been subjected to much more than a routine traffic stop and that the actions and practices of the arresting officers should be scrutinized.”
The majority ignores these benefits and omits the question of balancing altogether, leaving it to DOJ to make a case-by-case determination of whether it believes that the release of a particular booking photograph serves its own purposes. See Majority Op. at 484-85. That decision undermines FOIA’s goal of disclosure by effectively making DOJ the arbiter of whether a booking photograph will be made public. Under FOIA, the burden of justifying nondisclosure should always fall on the government. Reporters Comm.,
Even if news organizations bear the time and expense of taking DOJ to court, “assigning federal judges the task of striking a proper case-by-case ... balance between individual privacy interests and the public interest in” disclosure is likely to be onerous, especially as the basis of these “ad hoc” decisions would be largely standardless. Reporters Comm.,
IV
I am not unaware of the consequences of releasing booking photographs in the Internet Age. Ever since the nineteenth century, booking photographs have proven to be a source of discomfort to those depicted. See, e.g., Warren,
It is possible that other means could be used to achieve a sensible balance between reputational concerns and the free flow of public information. See, e.g., Act of May 6, 2013, § 1, 2013 Ga. Laws 613, 614 (requiring website owners to remove booking photographs of those acquitted of criminal activity); Taha v. Bucks County,