Mug Shots Access Faces En Banc Court Review

CINCINNATI (CN) - Case law regarding the release of mug shots under the Freedom of Information Act will face an en banc hearing before the full Sixth Circuit, the federal appeals court said Friday.

The debate centers around 1996 precedent in which the Sixth Circuit determined that the Department of Justice should grant FOIA requests for federal mug shots, so long such requests meet various criteria.

These criteria include the filing of a federal indictment against the individual, a public appearance in court by the individual and ongoing court proceedings against the individual.

Importantly, the precedent allows the DOJ to deny requests if the individual in question is not currently being prosecuted, his conviction status notwithstanding.

Though the Detroit Free Press wants the government to keep the status quo, Judge David McKeague asked back in April whether the prevalence of mug shots on the Internet could alter the way the court interprets the FOIA requests

DOJ attorney Steve Frank stressed that "these things last forever on the Internet."

"Youthful indiscretions ... could follow individuals for the rest of their lives," the attorney added.

The Detroit Free Press argued otherwise through its attorney Herschel Fink, who has represented the newspaper on this topic for over 22 years.

"[It has] no more of an effect than archives which hold stories," Fink said.

Judge Deborah Cook reproached the attorney when he questioned why someone's "visage" should be private anyway.

"It is not just a visage," Cook said, adding that a mug shot "is a person in a guilty pose."

The public's "reaction to a mug shot is 'that person is guilty,'" Cook said.

DOJ attorney Frank admitted at the hearing that the existing delineation mystified him.

"A person innocent before the law has no privacy interest [in a mug shot release], but someone convicted and serving time has a privacy interest," Frank said. "I can't wrap my head around that."

Citing rulings from sister circuits that run counter to the Sixth Circuit's process, Frank explained that "all we are asking is for the court to find the privacy interest in mug shots is greater than non-trivial."

He said an individual at the Justice Department should be responsible for reviewing each request for information to determine if there was a public interest in releasing the mug shots.

Judge David McKeague pressed the attorney: "The presumption is that [requesters] don't get the pictures, correct?"

Frank agreed, but was quick to point out that in most cases, "there is no public interest."

Fink meanwhile contended that the current system is a perfect application of "checks and balances," and also provides the individual with the "right to be forgotten" after court proceedings have concluded.

Emphasizing that the 1996 precedent applied only to U.S. Marshals offices in the Sixth Circuit, the attorney suggested that the court clarify its previous ruling to assert that it has no nationwide implications, and not to "kowtow" to the other circuit courts.

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