DeBartolo mug shot not a public record

LOUISIANA–Mug shots of a prominent businessman taken by the U.S. Marshals Service are not public records under the federal Freedom of Information Act, a federal trial judge in New Orleans ruled in early March. Disclosure of the photograph would constitute an unwarranted invasion of San Francisco Forty-Niners owner Edward J. DeBartolo Jr.’s personal privacy, the court held.

The decision squarely conflicts with another federal circuit’s 1994 determination that releasing mug shots does not unreasonably infringe on personal privacy.

DeBartolo pleaded guilty to federal charges arising from a criminal investigation of a former Louisiana governor. Following his plea, he was fingerprinted and photographed. Copies of the mug shot were requested by The Times Picayune.

After its request was denied, the newspaper sued in federal district court, asking the court to determine whether the government improperly relied on privacy concerns in withholding the photograph.

Under federal law, law enforcement records or information are exempt from disclosure if their release could reasonably be anticipated to constitute an unwarranted invasion of personal privacy.

The newspaper argued that DeBartolo, a well-known person whose photograph has often appeared in media outlets, had no protectable privacy interest in the release of the mug shot.

Rejecting the newspaper’s arguments, the court concluded that DeBartolo did have a protectable privacy interest.

The court concluded that, as a public figure, DeBartolo was likely to suffer a greater intrusion into his privacy upon the mug shot’s release because of the attention it would garner from the media and from rival businessmen.

Mug shots are associated with criminal activity and are, by nature, unflattering, the court concluded. “As in the cliche, a picture is worth a thousand words,” the court noted. “For that reason, a mug shot’s stigmatizing effect can last well beyond that actual criminal proceedings.”

Finally, the court noted that the public’s interest in disclosure was speculative and did not serve the federal records law’s goal of allowing citizens to monitor the activities of its government. (Times Picayune Publishing Corp. v. Dept. of Justice; Media Counsel: James Richard Swanson, New Orleans)