The Sixth Circuit Court of Appeals has agreed to rehear its panel’s decision regarding the release of mugshots under the Freedom of Information Act (FOIA). At issue is whether the mugshots are simply public record, obtainable through FOIA requests, or if there are inherent privacy interests.

Mugshots have been historically viewed as public record. But mugshots are not “neutral” (a mugshot “is a person in a guilty pose,” Judge Deborah Cook said at a hearing); further, they are often widely-published online by various websites, many of which charge large fees for removal. But more on that later.

In the case at issue, the Detroit Free Press sued the U.S. Department of Justice (DOJ) after the U.S. Marshals Service denied one of its reporter’s FOIA requests. The reporter had sought the booking photos of a trio of Detroit police officers who had been indicted on federal charges.

In 2013, the U.S. Marshals Service had decided not to comply with the precedent set by the Sixth Circuit in 1996. That case, Detroit Free Press v. United States Department of Justice, established that the DOJ should grant FOIA requests relating to federal mugshots, upon certain criteria being met.

Thus in April 2014, the Michigan trial court ordered the DOJ to release the photos. On appeal, this ruling was upheld in August, but not without the Sixth Circuit acknowledging certain lingering privacy concerns.

On November 19, the DOJ asked the Sixth Circuit to rehear its decision, noting – among other things – the evolution of the internet since the 1996, while also stating that the 1996 decision was wrong in holding that there is no privacy interest involved with releasing mugshots.

An en banc hearing is now forthcoming after the Sixth Circuit agreed to revisit its decision.

Mugshot Websites, “Extortion” Problematic

The issue of mugshots and potential privacy interests is a broader issue than the specific set of circumstances involved in the Detroit Free Press case – largely due to the internet.

As noted in the above-hyperlinked Law360 article regarding the DOJ’s request that the Sixth Circuit rehear its decision, the panel recognized that the key 1996 precedential opinion came nearly two years before Google, Inc. registered its Google.com domain name.

Google, of course, helps keep many people’s mugshots relevant. These days, this is largely due to the dozens of mugshot websites that were created in the last three or four years, although Google’s algorithm reportedly tends to rank these websites lower.

In an article published in October 2013, The New York Times took an in-depth look at how private individuals are being affected by their online mugshots. This includes a discussion of how for-profit websites have charged hundreds of dollars for the removal of mugshots – perceived by many, including the article’s author, to amount to extortion.

This practice is similar to activity of the former revenge porn website operator we wrote about in April, who was sentenced to 18 years in jail for identity theft and extortion. Beyond operating a revenge porn website, Kevin Bollaert also ran a revenge porn removal website, which was disguised as a neutral service provider. According to The San Diego Union-Tribune, Bollaert collected $30,000 in total payments from his one website for removing content from his other website.

Similarly, many mugshot operators (and, in some cases, actual employees) scour the internet for mugshots daily, publish them on their own websites, and then charge potentially hefty fees for the removal of the photos. This, of course, does not preclude the same images popping up elsewhere, in sort of a Whack-A-Mole situation.

Surely, people must face the consequences of certain poor decisions made in their pasts and there is also a clear public interest in certain information – for example, whether a potential employee, teacher, coach, or significant other has a checkered past. But mugshots do not always tell the full story.

For instance, a person can be the victim of a wrongful arrest and have a booking photo taken which might ultimately surface online. In fact, The New York Times piece featured a Florida doctor who had recently completed her residency and was on the verge of a job search while dealing with this very situation.

“Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped,” The New York Times article reads.

In recent years, several states have introduced and signed into law bills that regulate the practices of these mugshot websites. For instance, in August 2014, California’s governor signed a bill prohibiting websites from posting booking photos and charging for removal.

Several months earlier, a company operating a pair of mugshot websites reached a settlement with three plaintiffs in an Ohio lawsuit premised on similar activity.

Moreover, credit card companies and services such as PayPal have declined to work with many of these websites and even some jails have reportedly stopped posting mugshots online.

Public  Interest vs. Private Interest Debate

The above efforts to curb the potential unlawful activity of mugshot websites is certainly welcome, and there is no question that they are beneficial to many affected private individuals.

Of course, that does not mean there is no public interest in arrest information, because there certainly is – especially, in the Detroit Free Press matter, as it pertains to law enforcement officials.

How the Sixth Circuit rules in the matter will be very interesting, given the competing interests on both sides.

As Techdirt puts it, in the third hyperlinked article above:

Siding with members of the public who have been tarnished by this guilt-by-association also means siding with an agency seeking yet another way to withhold public records from the public. Siding with the Detroit Free Press means … allowing a whole host of dubious “entrepreneurs” to use public perception against private citizens to extract fees for the removal of booking info.