10th Cir. rules to keep prison murder images private

Releasing certain images, video and audio recordings regarding a prison murder and mutilation would violate the personal privacy of the prisoner's family, the U.S. Court of Appeals in Denver (10th Cir.) ruled Tuesday. The three-judge panel upheld a lower court's ruling that Exemption 7(c) to the federal Freedom of Information Act was properly applied and that the images would remain private in Prison Legal News v. Executive Office for United States Attorneys.

Prison Legal News, a legal journal covering prisoners' rights issues, filed a FOIA request for the video and audio shot by prison personnel in the immediate aftermath of the murder of Joey Jesus Estrella, and for autopsy photographs of Estrella. Estrella was murdered by his two cell mates in a Colorado federal prison in 1999. The video and the photographs were used in open court at the murder trials for Estrella's attackers.

A lower court ordered that the portion of the video that did not show Estrella's body be released. The appeal before the 10th Circuit concerned the remaining portion of the video showing the actual killing, parts of the accompanying audio that were redacted and Estrella's autopsy photographs.

Exemption 7(c) to FOIA allows the government to withhold from disclosure documents that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." In keeping with the 2004 U.S. Supreme Court decision, National Archives & Records Administration v. Favish, the court recognized that the Estrella family have a privacy right in the death-scene photographs of their deceased family member. In Favish, the Supreme Court held that the family of Vincent Foster Jr., a lawyer in the Clinton White House, had a recognizable privacy interest in keeping photographs from his suicide private.

Due to the close-up depictions of Estrella's body in the autopsy photographs, the 10th Circuit held that the privacy interests were even higher than those in Favish. The images of Estrella "involve grotesque and degrading depiction of corpse mutilation." The addition of video also makes the current case more extreme than Favish, the court said. The court also held that the interest in disclosure was limited due to the amount of similar information that was already made available in the case.

In its ruling, the 10th Circuit found that the redacted audio, the portion of the video that was not released and the photos will all remain undisclosed.

Prison Legal News argued that Estrella's status as a prisoner meant there simply was no expectation of privacy and that the use of the materials in trial without objection constituted the family's waiver of rights. The court rejected both arguments.

The court rejected another argument raised by Prison Legal News concerning what is referred to as the "public domain doctrine." The public domain doctrine applies to records that may fall under a FOIA exemption, but due to a prior public release, disclosure is allowed. Prison Legal News argued that the images must be released because they had previously been part of the public record when they were used in open court. Prison Legal News based its argument on a ruling in the D.C. Circuit, which found that if a document was already public, the force of an exemption "cannot fulfill its purposes."

The 10th Circuit also rejected the application of the public domain doctrine because the materials were viewed by only a small number of people in court and not the public at large, "[t]hus, enforcement of Exemption 7(C) can still protect the privacy interests of the family."

Paul Wright, editor at Prison Legal News, was particularly upset with the court's ruling on the public domain issue. Finding that videos and photos shown at a public trial and shown in open court are not public documents combined with the federal courts' continuous rejection of video taping proceedings, "goes against the notion of an open trial," he said.

As a whole, Wright said Prison Legal News is "very dismayed" by the court's ruling. Prisons are the least transparent of all government agencies and there are still a lot of questions surrounding this incident, he said. "We are disappointed on many levels."

The federal penitentiary in Florence, Colo., is rife with problems, Wright said. There have been numerous murders, guard misconduct and cases of medical neglect at the prison, he alleged. As a news organization and a prisoners' rights advocate, Prison Legal News has many questions about how the jail is run. Estrella's murder is "just one in a series of bad incidents," Wright said.

"It's a bad day for government transparency," he added.

Wright said that Prison Legal News will likely petition for the entire 10th Circuit to hear the case and could even appeal to the Supreme Court.