Smile for the Camera, the World Is Going to See That Mug: The Dilemma of Privacy Interests in Mug Shots

By:  Gregory Nathaniel Wolfe

 

Under the Freedom of Information Act (FOIA), individuals can request certain agency records, including mug shots, from federal agencies. Until 1996, the policy of the United States Marshals Service (USMS) was to use FOIA’s broad law enforcement exemption, Exemption 7(C), to deny requests for mug shots. However, in 1996, the Sixth Circuit in Detroit Free Press v. Department of Justice found that a mug shot does not implicate an arrestee’s privacy right and, consequently, Exemption 7(C) inapplicable. Due to FOIA’s liberal venue provision, Detroit Free Press is in effect binding upon the entire nation: So long as a request for a mug shot originates within the Sixth Circuit, USMS releases the mug shot regardless of where USMS initially took the mug shot. Indeed, two recent contrary decisions in the Eleventh and Tenth Circuits, Karantsalis v. Department of Justice and World Publishing v. Department of Justice, have had no practical effect on the dispute—USMS must still release mug shots even within these jurisdictions in accordance with Detroit Free Press.

 

The legacy of the legally impotent Karantsalis and World Publishing has been to create a climate in which USMS will almost certainly try to provoke (and may be in the process of provoking) another dispute within the Sixth Circuit via controversial executive nonacquiesence to induce the Circuit to reconsider en banc the issues in Detroit Free Press and unilaterally refuse to disclose mug shots even within the Sixth Circuit. This dispute has emerged coincident to a growing national debate regarding the merits of mug shot disclosure in reaction to the rise of commercial mug shot databases—websites that obtain mug shots at both the federal and state levels, and publish them online for profit. This Note argues that this dispute should be resolved in favor of the Tenth and Eleventh Circuits: In the case of mug shot requests, courts should uphold agency invocations of Exemption 7(C) in favor of nondisclosure. Furthermore, in light of the current legal complications of resolving this dispute within the judiciary due to executive nonacquiesence, this Note suggests a comprehensive legislative solution that would address the mug shot issue at both the state and federal levels.

 

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