Why is DOJ fighting to keep mug shots out of reporters’ hands?

August 13, 2015

(Reuters) – The intrepid reporter Nate Raymond, who covers New York City federal courts for Reuters, recently decided that, as a pet project, he would use the Freedom of Information Act to try to obtain booking photos of criminal defendants in his bailiwick. It has been a Kafkaesque journey.

Since 2012, the official position of the Justice Department and the U.S. Marshals Service is that “the weight of legal precedent” prohibits disclosing mug shots of accused federal criminals. So when Raymond asked for the booking photo of Iftikar Ahmed – a former venture capital executive who allegedly fled the U.S. this spring, after he was charged with insider trading – the Marshals Service said no, even though Ahmed is a fugitive the government presumably wants to find. The answer was no again when Raymond requested the mug shot of Paul Ceglia, another fugitive, who allegedly attempted to defraud Facebook with a forged ownership contract. The marshals relented only after Raymond pointed out that the service itself had used the photo in a “Wanted” poster for Ceglia.

When Raymond sought the booking photo of Anthony Murgio, who allegedly operated an unlicensed digital currency exchange tied to a huge data breach at JPMorgan Chase, he didn’t even bother going to the feds, even though Murgio was arrested for federal violations. Instead, because the defendant was being held in a state jail, Raymond asked the Pinellas County Sheriff’s Office for Murgio’s mug shot. Florida is one of at least 40 states that provide public access to booking photos, so Pinellas authorities, who maintain a “Who’s in Jail” tab on the sheriff’s website, simply attached Murgio’s mug shot to its email reply.

In case you haven’t already guessed, I am puzzled by the U.S. government’s policy of withholding mug shots of defendants in the federal criminal system. Sure, I understand why criminal defendants are distressed that in the Internet age, these unflattering images will dog them forever, even if they are ultimately acquitted of the charges that occasioned their arrests. But if the vast majority of state criminal justice systems make mug shots available, does it really make sense for the federal government to withhold the photos from the public – especially when it sometimes uses the very same pictures for its own purposes?

The Justice Department is right now litigating to cement its policy against releasing mug shots in response to FOIA requests. On Wednesday, it advanced toward erasing the only federal appellate holding that the photos must be turned over, in certain circumstances. A three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed a trial court ruling that under 6th Circuit precedent from 1996, the Detroit Free Press is entitled to booking photographs of four Detroit-area police officers indicted on federal drug and corruption charges. But Wednesday’s five-page per curiam opinion from Judges Ralph Guy, Deborah Cook and David McKeague urged the 6th Circuit to take the case en banc so it can consider reversing the appeals court’s 1996 holding that FOIA covers mug shots of defendants who have been arrested, been indicted and made court appearances on federal charges.

The judges cited, in abbreviated fashion, some of the arguments the Justice Department raised in its appellate brief. Their biggest concern, the opinion said, was that defendants’ privacy rights may preclude the release of booking photos, which are not just a dry record of law enforcement but an image with “an unmistakable badge of criminality,” taken during a uniquely humiliating moment in the accused person’s life. The split 6th Circuit panel that decided the 1996 case had found criminal defendants’ privacy rights are not implicated by the release of mug shots when the defendants have already been indicted and appeared in court.

As the Justice brief and the per curiam opinion pointed out, both the 11th Circuit, in its 2011 decision in Karantsalis v. U.S. Department of Justice and the 10th Circuit, in its 2012 ruling in World Publishing v. U.S. Department of Justice refused to go along with the 6th Circuit’s reasoning in the 1996 case. The U.S. Supreme Court declined to review the 10th Circuit case, prompting the Marshals Service to adopt its policy of disregarding the 6th Circuit’s 1996 precedent and refusing FOIA requests even for mug shots taken in the 6th Circuit.

The Free Press, represented by its lawyer Herschel Fink and outside counsel Paul McAdoo of McAdoo Law, said in the newspaper’s brief that neither the 10th nor 11th Circuit decisions really analyzed the 6th Circuit’s reasoning on privacy. “The American criminal justice system is a quintessentially open and transparent institution and it is well settled that no recognized expectation of privacy exists in facts, even arguably embarrassing facts, that are matters of public record or matters of legit public interest and concern,” it said.

Maybe it’s because I’ve been a reporter since junior high, but I found the arguments in an amicus brief from the Reporters Committee for Freedom of the Press to be entirely sensible. I’ve already alluded to them: The Justice Department is not only at odds with 40 states that have concluded criminal defendants do not have privacy rights over booking photos but with itself, since its own divisions sometimes publish mug shots of defendants.

“If the Department of Justice truly believes mug shots implicate legitimate privacy interests that authorize their withholding under the FOIA,” the amicus brief said, “it is not clear why its components have routinely chosen to publish them. Unless the DOJ’s position is that it routinely violates the privacy rights of persons who have been in the custody of the United States government, its practices serve as an admission that no privacy interests are implicated by the release of such photographs.”

I emailed the Justice Department’s public affairs office to ask about the apparent conflict in its policy but didn’t hear back. I’d say there’s a good chance the 6th Circuit will agree to hear this case en banc – it appears these pictures are going to be worth a few thousand words more.

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