The Sixth Circuit recently held in Detroit Free Press Inc. v. U.S. Department of Justice that in certain instances, the public may not be entitled under the Freedom of Information Act (FOIA) to access criminal mug shots due to the defendants privacy rights. FOIA generally requires government agencies to allow access to government records, unless an exception applies, such as personal privacy rights. Previously, in Free Press I, the court held that there were no privacy rights in booking photos of a defendant who appeared in court, because the defendant’s name and identity had already been made public in court. However, the court in Detroit Free Press Inc. acknowledged that there is a “non-trivial privacy interest” in booking photos, considering the embarrassing nature of mug shots, the ease with which the public can reproduce and distribute mug shots via modern technology and the potentially lasting impact on a defendant. As a result, the court overruled its twenty year old decision and held that on a case-by-case basis, defendants who have appeared in court for an ongoing criminal proceeding may have privacy rights in their mug shots that prevent FOIA disclosures.

TIP: This case is a reminder that individuals may still retain privacy rights for content contained in government documents. For companies whose marketing teams might be putting together content based on materials they think are “public,” this case is a reminder to the legal teams working with marketing to probe the origin of that content.