DETROIT FREE PRESS, INC., Plaintiff-Appellee, v. DEPARTMENT OF JUSTICE, Defendant-Appellant.
Nos. 94-1540, 94-1720
United States Court of Appeals, Sixth Circuit.
Decided Jan. 12, 1996.
Argued Nov. 28, 1994.
The statutory standard prescribed by the Administrative Procedure Act, as the Perales Court said in the very paragraph of which we are speaking, id. at 410, 91 S.Ct. at 1431-32, is one under which a party is entitled to conduct “such cross-examination as may be required for a full and true disclosure of the facts.” See
It is true, as Lidy observes, that when the Perales Court spoke of the claimant‘s non-exercise of “his right to subpoena the reporting physician,” the Court did not speak of the “right to request a subpoena.” Lidy, 911 F.2d at 1077. But there was no reason fоr the Supreme Court to have done so; the claimant in Perales had made no subpoena request at all, and the Court was not being asked to decide whether he would have been entitled to a subpoena if he had filed a request that did not conform to the requirements of the governing regulation. It is not likely, in our view, that the Court intended to suggest that the claimant has a right exercisable without regard to the regulatory requirements.
Unlike Mr. Calvin, the claimant in Lidy submitted a set of written interrogatories to the reporting physician. The answers to the interrogatories were “vague and evasive,” according to the claimant, and the request for a subpoena was reasserted on that basis. Lidy, 911 F.2d at 1076. Under these circumstances, it may well be that the claimant‘s showing of need for a subpoena was strong enough to compel the conclusion that the ALJ abused his discretion in denying the request. The Fifth Circuit did not rest its decision on that ground, however. To the extent that Lidy and the precedents cited therein may hold that any written request to subpoena a reporting physician must be granted automatically, we respectfully disagree.
If “[d]ue process requires that a claimant be given an opportunity to cross-examine and subpoena the individuals who submit reports,” see Coffin v. Sullivan, 895 F.2d 1206, 1212 (8th Cir.1990), it does not seem to us that the agency charged by statute with responsibility for issuing regulations telling claimants how to avail themselves оf this opportunity is constitutionally precluded from prescribing reasonable and proper requirements of the sort found in
Accordingly, the remand order is REVERSED, and the case is remanded to the district court for further proceedings not inconsistent with this opinion.
Jane E. Kirtley (briefed), Reporter‘s Committee for Freedom of the Press, Washington, DC, for Reporter‘s Committee for Freedom of the Press.
Leonard Schaitman, U.S. Department of Justice, Appellate Staff, Civil Division, Washington, DC, L. Michael Wicks, Asst. U.S. Attorney, Office of the U.S. Attorney, Detroit, MI, John F. Daly (argued and briefed), U.S. Department of Justice, Appellate Staff, Civil Division, Washington, DC, for Department of Justice.
Before: JONES, NORRIS, and DAUGHTREY, Circuit Judges.
DAUGHTREY, J., delivered the opinion of the court, in which JONES, J., joined. NORRIS, J. (pp. 99-100), delivered a separate dissenting opinion.
DAUGHTREY, Circuit Judge.
Pursuant to the Freedom of Information Act,
I.
“A district court reviews de novo an agency‘s decisions regarding a FOIA request.
II.
By enacting the FOIA, Congress evidenced “a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Department of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (quоting S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)). Thus, “disclosure, not secrecy, is the dominant objective of the Act,” and any exemptions to that disclosure requirement “must be narrowly construed.” Id. at 361, 96 S.Ct. at 1599.
In rejecting the FOIA request of the Free Press for the mug shots at issue in this litigation, the Department of Justice appropriately focused upon the two statutory exemptions from disclosure contained in
III.
To be exempt from disclosure under the privacy provision of
A. Compilation of Information for Law Enforcement Purposes
Despite the Free Press‘s protestations to the contrary, the mug shots of the federal indictees at issue in this controversy were “compiled for law еnforcement purposes.” In Jones v. F.B.I., 41 F.3d at 245-46, we recently endorsed a per se rule “under which records compiled by a law enforcement agency qualify as ‘records compiled for law enforcement purposes’ under FOIA.” (Emphasis in original.) The threshold requirement for exemption from disclosure of information under
B. Reasonable Categorization of Disclosure as Invasiоn of Personal Privacy
The Department of Justice also contends that the range of privacy interests protected by the exemptions from FOIA disclosure is “expansive” and that even the disclosure of the mug shots of individuals already arrested, indicted, and awaiting federal trial could reasonably be considered an invasion of personal privacy. In support of its position, the Department of Justice cites Supreme Court casеs ruling that certain information in the possession of federal agencies cannot be released to the public without infringing unnecessarily upon personal privacy interests. The highlighted decisions, however, actually emphasize the public nature of the information sought in this case and distinguish this matter from the factual situations presented in those earlier disputes.
For example, in United States Dep‘t of Defense v. Federal Labor Relations Auth., the Court refused to order dissemination of the home addresses of federal agency employees, despite the fact that many of those addresses could also be obtained from readily-available, public telephone directories. U.S. at ----, 114 S.Ct. at 1016. Release of home addresses, however, would shed no light on the workings of the government and, as the Court has recognized, the “crystal clear” objective of the FOIA is “to pierce the veil of administrative seсrecy and to open agency action to the light of public scrutiny.” Rose, 425 U.S. at 361, 96 S.Ct. at 1599. In contrast, the release of mug shots of individuals under indictment in federal court does not in this instance disclose personal information unrelated to the daily work of the Marshals Service. Rather, such disclosure provides documentary evidence of the designated responsibilities of an agency of the federal government and thus provides a factual scenario distinguishаble from the controversy in Federal Labor Relations Auth..
Similarly, the Department of Justice‘s citation to United States Dep‘t of State v. Ray, 502 U.S. 164, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991), does not mandate a con
Furthermore, the Supreme Court‘s ruling in United States Dep‘t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989), is not dispositive of the dispute presented in this appeal. While Reporters Committee also involved the requested release of information relating to criminal prosecutions, the dispute in that litigation concerned the F.B.I.‘s refusal to release “rap sheets” of certain gоvernment contractors. The rap sheets, however, were not germane to any active prosecution of the contractors. More importantly, as noted by the Court, the very nature of rap sheets demands that they be accorded a greater degree of privacy and protection from public scrutiny. Such documents are not single pieces of information but, rather, compilations of many facts that may not otherwisе be readily available from a single source. Thus, rap sheets both disclose information that extends beyond a particular, ongoing proceeding and recreate information that, under other circumstances, may have been lost or forgotten.
Nevertheless, the Department of Justice intimates that rap sheets and mug shots cannot be meaningfully distinguished for FOIA privacy purposes, in part because, like rap sheets, a mug shot “convеys an extremely unflattering view of the subject, with strong connotations of guilt.” We have previously determined, however, that the personal privacy of an individual is not necessarily invaded simply because that person suffers ridicule or embarrassment from the disclosure of information in the possession of government agencies. Schell v. United States Dep‘t of Health and Human Servs., 843 F.2d 933, 938-39 (6th Cir.1988) (resolving a challenge to nondisclosure of information under
We need not decide today whether the release of a mug shot by a government agency would constitute an invasion of privacy in situations involving dismissed charges, acquittals, or completed criminal proceedings. Instead, we neеd resolve only the single issue of whether such disclosure 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, “could reasonably be expected to constitute an ... invasion of personal privacy.” Under these detailed circumstances, we believe that no privacy rights are implicated.
C. Unwarranted Nature of Any Invasion of Personal Privacy
Upоn concluding that release of mug shots of the federally indicted defendants in this dispute could not reasonably be expected to constitute an invasion of personal privacy, there is, of course, no need then to determine whether such an invasion would be warranted. Even had an encroachment upon personal privacy been found, however, a significant public interest in the disclosure of the mug shots of the individuals awaiting trial cоuld,
The primary purpose of the FOIA “is to ensure that the Government‘s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.” Reporters Comm., 489 U.S. at 774, 109 S.Ct. at 1482 (emphasis in original). Public disclosure of mug shots in limited circumstances can, however, serve to subject the government to publiс oversight. For example, release of a photograph of a defendant can more clearly reveal the government‘s glaring error in detaining the wrong person for an offense than can any reprint of only the name of an arrestee. Furthermore, mug shots can startlingly reveal the circumstances surrounding an arrest and initial incarceration of an individual in a way that written information cannot. Had 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.
Although additional examples of the public benefits to be derived from the disclosure of mug shots in limited circumstances could be detailed, we reiterate that such an exercise need not be undertaken in this case. Given the fact that the present FOIA request involved only mug shots of individuals who were already indicted, who had already made court appearances after their arrests, and whose names had already been made public in connection with an ongoing criminal prosecution, we conclude that disclosure of the requested information could not reasonably be еxpected to constitute an unwarranted invasion of personal privacy.
IV.
The Department of Justice also insists in this appeal that the district court erred in awarding the Free Press its reasonable attorneys’ fees for the FOIA litigation. Such fees may, however, be awarded in any FOIA case “in which the complainant has substantially prevailed.”
In determining whether a prevailing FOIA complainant should be awarded attorneys’ fees, a district court shоuld consider at least the following factors: “the benefit to the public deriving from the case; the commercial benefit to the complainant and the nature of its interest in the records; and whether the agency‘s withholding had a reasonable basis in law.” American Commercial Barge Lines Co. v. N.L.R.B., 758 F.2d 1109, 1111 (6th Cir.1985). We review the court‘s determination on this issue for an abuse of discretion. Id.
In this matter, the district court did consider the appropriate factors in concluding that an award of attorneys’ feеs to the Free Press would be proper should the underlying FOIA decision be upheld on appeal. The court first noted that “[t]he action of the newspaper here was of benefit to the public. It gives further insight into the criminal justice administration conducted in this district. It gives further impetus to people who might come forward with evidence in criminal prosecutions.” See also Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 712 (D.C.Cir.1977) (“[u]nder the first criterion a court would ordinarily award fees, for example, whеre a newsman was seeking information to be used in a publication....“).
Second, although recognizing that the newspaper would reap some commercial benefit from its access to the mug shots, the district court also expressed its understanding that “news interests should not be considered commercial interests.” Fenster v. Brown, 617 F.2d 740, 742 n. 4 (D.C.Cir.1979) (examining the FOIA‘s legislative history). Where “the complainant‘s interest in the information sought was scholarly or journalistic or public-interest oriented,” fees are generally awarded. Id. Thus, this factor also weighs in favor of the Free Press on the attorneys’ fee issue.
The final factor, however, weighs in favor of a decision not to award such fees. Both parties to the dispute recognize that the issue before the court is one of first impression and that the position espoused by the De
V.
The judgment of the district court regarding the FOIA complaint of the Free Press is AFFIRMED to the extent that the request for documents concerns ongoing criminal proceedings in which the names of the indicted suspects have already been made public and in which the defendants have already appeared publicly in court. Because we also conclude that the district court did not abuse its discretion in awarding reasonable attorneys’ fees to the successful complainant in this FOIA action, the judgment of the court concerning that award is also AFFIRMED.
ALAN E. NORRIS, Circuit Judge, dissenting.
Because the disclosure of the requested mug shots could reasonably be expected to create an unwarranted invasion of the personal privacy of the subjects of those photographs, I respectfully dissent.
The FOIA privacy exemptions recognize an individual‘s interest in preventing the disclosure of personal matters. United States Dep‘t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762, 109 S.Ct. 1468, 1476, 103 L.Ed.2d 774 (1989). Protected interests “encompass the individual‘s contrоl of information concerning his or her person.” Id. at 763, 109 S.Ct. at 1476; see also Jones v. F.B.I., 41 F.3d 238, 247 (6th Cir.1994). As the Second Circuit has put it, “Congress intended to afford broad protection against the release of information about individual citizens.” Hopkins v. United States Dep‘t of Hous. and Urban Dev., 929 F.2d 81, 86-87 (2nd Cir.1991).
The majority attempts to lessen the impact of the Supreme Court‘s privacy exemption cases by observing that the subjects of the mug shots “had already been identified by name by the federal government and their visages had already been revealed during priоr judicial appearances.” However, the Court rejected a very similar argument in Reporters Committee. Although the information contained in the requested rap sheets was a matter of public record, the Court found that reliance upon the fact that the information had been previously disseminated reflected a “cramped notion of personal privacy.” Reporters Comm., 489 U.S. at 763, 109 S.Ct. at 1476.
The Marshals Service mug shots at issue give distinctive form to information about a person. Thе fact that a matter “is not wholly ‘private’ does not mean that an individual has no interest in limiting disclosure or dissemination of the information.” Reporters Comm., 489 U.S. at 770, 109 S.Ct. at 1480 (citation omitted). The majority‘s view that one‘s mug shot conveys no more than one‘s appearance misconceives the true nature of a mug shot. While a photograph may not reveal any “private” information, a mug shot conveys much more than the appearance of the pictured individual. Unlikе a photograph taken under normal circumstances, it relates a number of facts about a person, including his expression at a humiliating moment and the fact that he has been booked on criminal charges. Furthermore, as this court has recognized, mug shots are widely viewed by members of the public as signifying that the person in the photo has committed a crime. Eberhardt v. Bordenkircher, 605 F.2d 275, 280 (6th Cir.1979) (mug shots convey an “unmistakable badge of criminality“). In my view, these considerations leаd to but one conclusion: that the subject of a mug shot has a cognizable privacy interest in preventing its public dissemination.
We must next inquire whether this privacy concern is outweighed by a significant public interest. The majority argues that the disclosure of mug shots would improve the functioning of the criminal justice system, helping to ensure, for instance, that the proper person has been detained. However, the record contains no evidence оf abuse in the Marshals Service‘s arrest and detention prac
In short, I believe that the disсlosure of these mug shots would serve no public interest cognizable under the FOIA. As a general rule,
[w]hen the subject of [an agency record] is a private citizen and when the information [is not] a record of “what the Government is up to,” the privacy interest protected by Exemption 7(C) is in fact at its apex while the FOIA-based public interest in disclosure is at its nadir.
Reporters Comm., 489 U.S. at 780, 109 S.Ct. at 1485. This observation applies with full force to the facts before us. The disclosure of the requested photographs would serve no cognizable purpose, yet would significantly infringe upon the personal privacy of the subjects of the photographs.
Accordingly, I respectfully dissent.