Sixth Circuit Appeals Court Prepares To Consider The Privacy Implications Of Mugshots

from the in-the-middle,-the-presumption-of-guilt dept

The Sixth Circuit Court of Appeals is preparing for an en banc hearing on whether there is a privacy interest inherent in mugshots, or whether they are simply public records that can be obtained with an FOIA request.

For the most part, mugshots have been considered public records. This has led to a shady mugshot-posting cottage industry, as well as an equally-shady mugshot-removal cottage industry.

Whatever success these businesses enjoy is mostly due to a flaw in public perception. Despite the nation's justice system being built on the presumption of innocence, a large percentage of the population views "arrested and charged" as being no different than "found guilty." (Federal law enforcement databases -- used for background checks -- reinforce this perception by entering arrested persons' info when booking, but routinely failing to remove it when charges are dropped or the person is found innocent.)

Despite these flaws, there is a public interest in arrest and booking information, not necessarily because the public deserves to know every detail of every mundane arrest, but because findings to the contrary lend themselves to the burial of information that is definitely in the public's interest, like information pertaining to the alleged criminal acts of their public servants.

The information under dispute in this case involves a federal law enforcement agency and the indictment of three local law enforcement officers.

The opinion by a three-judge panel of the 6th U.S. Circuit Court of Appeals ends a years-long battle led by the Detroit Free Press. The paper sued the Justice Department in 2013 after the Marshals Service denied a reporter’s request for booking photos of Detroit-area police officers indicted on federal charges.
The appeals court found there were privacy concerns yet to be addressed in the public release of booking photos and information, but ultimately upheld the lower court's ruling ordering the DOJ to release the photos to the Detroit Free Press.

The en banc hearing will apparently consider these deeper issues. The presiding judge noted that a person's "visage" (as it pertains to a mugshot) is not simply a neutral bit of information. It is, in the public's mind, an expression of guilt.

The DOJ argued on behalf of the people its agencies arrest, noting the bizarre fact that a person's privacy interests actually increase the "guiltier" they get.
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."
As nice as it is to hear the DOJ express these concerns, its ultimate goal is to obtain the final say on the release of booking photos via a wholly internal process.
U.S. Circuit Judge David McKeague questioned the application of such a test, which would, in theory, balance an individual's right to privacy against a public interest in obtaining the pictures.

Frank explained that an individual at the Justice Department would review each request for information to determine if there was a public interest in releasing the mug shots.

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."
On the other side, the Detroit Free Press, through its lawyer, Herschel Fink, is arguing that the presumption that these records are public should remain intact. The paper is looking for a broader decision that will settle issues related to other government agencies, rather than leaving it limited to one wing of the DOJ and the arrests it performs.
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.
Fink also suggests the Sixth Circuit shouldn't "kowtow" to contrary decisions reached by other circuits.

Fink's involvement in this case isn't surprising, considering he has represented the Detroit Free Press for twenty-two years. However, Fink has proven he'll advocate for the First Amendment and the freedom of information only when it's most convenient for him.

In this case, he's pursuing his employer's interest in obtaining booking information for its journalistic endeavours. But roughly a year ago, he was arguing against the release of law enforcement-related information -- specifically, a list of Oakley, Michigan's (pop. 300) 100 "pay-to-play" police officers. Fink is one of Oakley's police officers and he stepped up to prevent the list from being made public, citing bullshit "terrorism" concerns.
In the undated email, Fink cited an Oct. 13 bulletin by the FBI and Department of Homeland Security that ISIS had called for attacks against law enforcement and government workers.

"To release identifying information about law enforcement personnel under such circumstances would not only result in damages against the Village, and everyone involved in such a release, it would likely be considered as having been done with malice, opening the door to punitive damages," wrote Fink.
So, Fink may be fighting for the release of other people's information but is much less willing to permit the release of his own. On the other side, the DOJ wants to consolidate its FOIA refusal powers. In the middle, there's a presumption of guilt that's nothing more than a common misperception, but often results in very real complications for those whose information has been released. Siding with members of the public who have been tarnished by this guilt-by-association also means siding with an agency seeking yet another way to withhold public records from the public. Siding with the Detroit Free Press means rubbing elbows with Herschel Fink's hypocritical stance and allowing a whole host of dubious "entrepreneurs" to use public perception against private citizens to extract fees for the removal of booking info.

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Filed Under: extortion, mugshots, privacy, public records, sixth circuit


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  • icon
    orbitalinsertion (profile), 25 Nov 2015 @ 7:03pm

    The perfect opportunity for a good ruling that leaves neither of those parties happy. Oh well.

    reply to this | link to this | view in chronology ]

  • icon
    TKnarr (profile), 25 Nov 2015 @ 7:12pm

    I'd like to see a ruling saying "Yes mugshots should be publicly available. However, entities providing [i]incorrect[/i] information about persons arrested and charged, even where only implied, are still liable for that information. If an entity publishes the mugshot of a person who was subsequently found not guilty or had the charges dismissed without making that fact at least as prominent on the mugshot as the mugshot itself, that entity has committed libel and has been criminally negligent in allowing the incorrect information to persist.". That should make most of those sites drop the whole thing rather than take on that kind of liability.

    reply to this | link to this | view in chronology ]

    • icon
      madasahatter (profile), 26 Nov 2015 @ 8:10am

      Re:

      And in a news article/post the original article with the mugshot is updated accordingly again. Some of the worst offenders are the media not the sleaze sites.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Nov 2015 @ 6:40pm

      Re:

      The problem with such a hypothetical ruling is that the damage is already done to people's lives if they first find out about their photo's being on those sites from say a potential employer who googles their name.

      In a bunch of careers (such as education) these mugshots for charges that were eventually dropped can get you blacklisted for life out of your career you've already spent a bunch of time and money learning in college/etc.

      And then the fact is not everyone screwed over by these websites will sue. And winning a lawsuit doesn't exactly happen overnight, it takes months. Even reaching a settlement can take a while.

      reply to this | link to this | view in chronology ]

  • icon
    Bill Jackson (profile), 26 Nov 2015 @ 3:44am

    Estate of George Washington and Jackson

    Protest the privacy implications of the use of their likeness on currency because it leads people to pester them at the 7-11...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Nov 2015 @ 6:40am

    Is it fair that the law shields the identity and personal details of people who make false accusations -- but not the identity of the people they falsely accuse?

    This can lead to a situation of innocent people being put on "trial by the press" but legally prohibited from speaking in their own defense. Let's not forget the Duke rape scandal, in which numerous innocent people had their names dragged through the mud for months on end by shameless tabloid TV sensationalists like Nancy Grace (who, BTW, never apologised or even addressed her gross errors in judgement.)

    Maybe with "he-said/she-said"-type crimes, it would be much fairer for everyone involved to either make everything public or make nothing public.

    reply to this | link to this | view in chronology ]

  • icon
    tqk (profile), 26 Nov 2015 @ 11:05am

    Nancy Grace, journalist?

    ... shameless tabloid TV sensationalists like Nancy Grace (who, BTW, never apologised or even addressed her gross errors in judgement.)

    You would think behavior such as that would make anyone think twice about believing anything she said, or even wanting to hear anything she wanted to say. Well, in a perfect world anyway.

    I'm in favor of "everything public" regardless of who it's about, and of dumping/updating everything that's personal upon "not guilty" verdicts, and for the cops to just suck it up that wearing a uniform and badge and driving a souped up police car comes with a few "you may need to be a bit more careful than the average guy" warnings for the privilege. Still want the job? It pays pretty well, you know?

    reply to this | link to this | view in chronology ]

  • identicon
    Magnum Scorsese, 26 Nov 2015 @ 11:42am

    Pro Speech Fix

    One answer is to require the government to provide high-quality, easy to use access to case disposition information. So all the shady sites can still try to blackmail people with implications of guilt. But when you do a google search on someone's name and keywords like "arrested" the top results will be the official records that prominently inform the user if the arrestee was not charged or if they were acquitted, etc.

    Right now the government's databases on that information are well-known to be slipshod. A law like that would kill too birds with one stone - get the goverment's databases in shape and minimize the harm of mugshot blackmail sites. All without having to worry about free speech issues.

    But will take a law, not a court ruling. Or at least not a lower court ruling.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Nov 2015 @ 11:49am

    ...a large percentage of the population views "arrested and charged" as being no different than "found guilty."

    Over 95% of arrests end in a conviction. I can see how mug shots lead the public to assume guilt. Even if the defendant is not guilty, they're still going to be charged and convicted of something.

    Nobody walks out of a court room scot-free. Unless you're a millionaire like OJ Simpson.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 26 Nov 2015 @ 6:47pm

    Despite the nation's justice system being built on the presumption of innocence, a large percentage of the population views "arrested and charged" as being no different than "found guilty."

    That describes my friend perfectly. In fact he'd take it a step further and say that they police wouldn't even be talking to someone if they haven't done something wrong. He also firmly believes that the reverse is true; If a person isn't charged with a crime, that means that they're innocent. When Michael Brown was shot, the one and only fact that mattered to him regarding Darren Wilson's guilt or innocence was that the grand jury declined to charge him. In his mind, that proved Wilson's innocence beyond any shadow of a doubt.

    reply to this | link to this | view in chronology ]

  • identicon
    Justme, 28 Nov 2015 @ 5:51pm

    Ripe for abuse. .

    If the ruling end's up allowing officials to decide what is public on a case by case basis. It will most certainly be abused!

    Likely being used as another way of exempting those in positions of authority from the consequences of their actions and shielding them from any public accountability. And depending on what level those decisions are made, it would likely be used as leverage to coerce people to accept a plea, rather then exercising their right to a trial.

    Laws that are not equally enforced should not be acceptable in a country founded on the principle that all men are created equal and where most of us believe in equal protection under the law.

    reply to this | link to this | view in chronology ]

  • identicon
    Herschel Fink, 30 Nov 2015 @ 2:39pm

    Well, I guess the aptly named TechDirt's conclusion that ISIS's threats to target American police officers are "bullshit" means that it believes that the FBI and Homeland Security's specific warnings to that effect are also "bullshit." I'm sure the reporter also believes that the ISIS-inspired murders around the world, including in the U.S., must also be "bullshit." In fact my request not to release officer names and addresses in the Oakley case was based on the lack of a justifiable reason (which a circuit judge agreed with), and a Michigan FOIA provision which prohibited doing just that. A "bullshit" nuance and context that TechDirt's reporter didn't get, I guess.

    reply to this | link to this | view in chronology ]


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