Federal appeals court holds mugshots exempt from FOIA

Releasing mug shot photographs under the federal Freedom of Information Act would violate the personal privacy rights of those depicted, the U.S. Court of Appeals in Atlanta (11th Cir.) held on Friday in Karantsalis v. Department of Justice.

As the second federal appellate level court to address the issue, the Eleventh Circuit’s decision to deny access to mug shots held by federal authorities creates a split in the circuits; the U.S. Court of Appeals in Cincinnati (6th Cir.) held in 1996 that there was no recognizable personal privacy interest in such photographs.

Theodore Karantsalis requested access to the mug shots of Luis Giro, a wealthy former president of his own investment firm who pleaded guilty in 2009 to securities fraud. After having his request denied by the U.S. Marshal’s Service, Karantsalis represented himself before the federal district court before obtaining counsel to face the court of appeals.

The appeals court did not issue its own opinion, but adopted the opinion of the U.S. District Court for the Southern District of Florida, saying it was a “comprehensive and scholarly discussion of the issues and law” that found that mug shot photographs were exempt from the FOIA under Exemption 7(C). That exemption protects from disclosure law enforcement records whose release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The district court held that “a booking photograph is a unique and powerful type of photograph that raises personal privacy interests distinct from normal photographs . . . [it] captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties.” In addition, the court held there was little public interest in the mug shots beyond “satisfying voyeuristic curiosities.” The court held that the photographs would not provide any information to the public about the operations of the government, which is generally a required showing when requesting records where a privacy interest exists. The court dismissed Karantsalis’ argument that the photographs would inform the public as to whether or not certain people got preferential treatment by the Marshals.

The two appellate court decisions are interesting because they are so divergent, Atlanta attorney Lesli Gaither said. Gaither, an associate attorney at Dow Lohnes, was part of the legal team that represented Karantsalis before the appellate court. The Sixth Circuit found there was no privacy right in the photographs, but the district court found the exact opposite, Gaither said.

Since the Sixth Circuit decision in Detroit Free Press v. Dep’t of Justice in 1996, the U.S. Marshals have followed the practice of releasing mug shots only to requesters who reside within the Sixth Circuit’s jurisdiction.

“I think the Sixth Circuit is right,” Gaither said. “Mug shots should be treated no differently than any other record of the [criminal justice process]. This is someone who has already been [identified] in open court and his picture is already out there.”

Gaither expressed surprise that the 11th Circuit did not take the time to issue its own opinion and address in more detail the Sixth Circuit opinion because the decision creates a conflict.

The issue of access to mug shots made news last month when requests were made to see the mug shots of alleged shooter Jared Lee Loughner. Loughner has been charged with killing six and injuring 13 others in the January Arizona shooting that claimed the life of a federal judge and severely injured U.S. Rep. Gabrielle Giffords, D-Ariz.. Loughner’s defense attorneys and the U.S. Marshals Service joined in requesting a federal district court in California — part of the Ninth Circuit — enjoin the release of the photographs after requests for them were received from residents of the Sixth Circuit. After a temporary stay and a hearing on the the issue the court held it did not have the authority to overrule an appellate court decision and the photographs were released later that day.

In 1999, the federal district court for the Eastern District of Louisiana also held that mug shots had significant privacy interests and that the public interest was negligible in Times Picayune Pub. Corp. v. Dep’t Of Justice. That case was never appealed to the U.S. Court of Appeals in New Orleans (5th Cir.).

Gaither said there is no decision yet on what the next step for the case will and all options are under consideration. However, the conflict among the circuits is significant and the result is a policy of releasing to some requesters and not all, which creates a bit of a “trap” for the government, she said. “I think even the government would like [the U.S. Supreme Court to take the case] to address the split.”