In 1996, in Detroit Free Press v. Dept. of Justice, 73 F.3d 93 (6th Cir. 1996) (“Free Press I”), the Sixth Circuit held that the Freedom of Information Act required the release of booking photos for criminal defendants who appeared in trial. In March, twenty-two years later, the court in Detroit Free Press v. Dept. of Justice (“Free Press II”) found this ruling to be “untenable” considering the unanticipated technological advances which make these photographs easier to access and more likely to stick around. In a 9-7 decision, the en banc Court overruled Free Press I and held that the FOIA’s Personal-Privacy Interest Exemption allows a booking photo to be protected from the public.

The Court recognized that today, unlike in 1996, a simple “idle internet search” can produce these pictures largely due to websites that are dedicated to preserving and displaying even decades-old booking photos. The Sixth Circuit reasoned that because “[a] disclosed booking photo casts a long, damaging shadow over the depicted individual,” a criminal defendant has a strong privacy interest in keeping the picture sealed. And further, these booking photos “fit squarely within the realm of embarrassing and humiliating information,” which the Personal-Privacy Exemption of the FOIA was designed to protect.

Having found that a non-trivial privacy interest existed, the Court then queried whether that privacy interest was outweighed by the public’s interest in disclosure. The Court rejected the categorical approach that requires a finding in favor of the public, and instead, adopted a case-by-case analysis method. The Court held that while the FOIA’s core purpose is to illuminate any shortcomings of government agencies, that purpose is not served by the disclosure of booking pictures, which “reveal little or nothing about an agency’s own conduct.” Thus, the privacy interest was weightier than any public interest in disclosure.

In his dissent, Judge Boggs explained that because neither public nor the criminal defendant expects that a booking photograph will remain hidden from public view, there was no cognizable privacy interest. Yet, in embracing the categorical approach that the majority rejected, the dissent would have held that even if a privacy interest existed, it was outweighed by the “public’s interest in knowing who the government is prosecuting.” The dissent focused on the necessity of a transparent prosecutorial system, and urged that the disclosure of booking photographs is central to the public’s ability to oversee that process: “Open government is too dear a cost to pay for the mirage of privacy that the majority has to offer.”

Free Press II brings the Sixth Circuit in line with the Tenth and Eleventh Circuits. Indeed, the intervening authority from those circuits appeared to be what precipitated the Sixth Circuit’s change of perspective on this issue. Thus, no longer can “straw man” requesters come to Michigan, Ohio, Kentucky, and Tennessee to obtain photos maintained in other jurisdictions, as Bernie Madoff’s booking photo was once procured.