According to the U.S. Department of Justice (DoJ), Luis Giro is a person of interest to law enforcement, which certainly made him an interesting person to South Florida journalists. However, these interests were not enough to warrant release of his booking photos under a federal judge’s ruling.

Giro, a former Miami-based investment manager, fled the United States in 2003 after he was indicted for misappropriating client funds. Federal officials circulated his driver’s license photograph through INTERPOL, and Venezuelan authorities arrested him in 2009. The U.S. Marshals Service, following its standard procedure, took “booking photos” of Giro when placing him in custody. Giro ultimately pled guilty to securities fraud and now faces up to 10 years in prison.

An Internet journalist brought a Freedom of Information Act (FOIA) lawsuit after the U.S. government denied a request for Giro’s booking photos. In its decision denying access, the U.S. District Court for the Southern District of Florida, in Karantsalis v. U.S. Department of Justice, ruled that Giro retains a privacy interest in his mug shots that trumps any public interest in their dissemination.

This result seems counterintuitive given the public interest in Giro’s crimes, but it is not altogether unusual when FOIA cases involve law enforcement records. Under FOIA, federal agencies must make their records available to the public unless an exemption applies. FOIA Exemption 7, cited by the court in this case, applies to law enforcement records where disclosure “could reasonably be expected to constitute an unwarranted invasion of privacy.” 5 U.S.C. § 552(b)(7)(C).

In applying FOIA’s balancing test of the public and private interest, the district court in Karantsalis describes the privacy interest in strong terms:

A booking photograph is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with guilty. Further, a booking photograph captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties … it raises a unique privacy interest because it captures an embarrassing moment that is not exposed to the public eye.

The privacy interest described in Karantsalis seems disconnected from the facts: Giro’s criminal activities, his flight from law enforcement, the worldwide circulation of his driver’s license photograph tied to an indictment, more than five years as a fugitive, his admission of guilt, a looming prison sentence, and a DOJ press release describing all of these events. Whatever additional embarrassment Mr. Giro may sustain by the release of his mug shots, it surely pales in comparison to what he has already experienced.

The Florida court’s ruling also conflicts with a federal appeal court’s on-point ruling in a 1996 case granting the Detroit Free Press access to mug shots. In this case, the U.S. Court of Appeals for the Sixth Circuit determined that there is no privacy interest in a mug shot that triggers an exemption under FOIA:

We have previously determined, however, that the personal privacy of an individual is not necessarily invaded simply because that person suffers ridicule or embarrassment from the disclosure of information in the possession of government agencies….Furthermore, the need or desire to suppress the fact that the individual depicted in a mug shot has been booked on criminal charges is drastically lessened in an ongoing criminal proceeding such as the one precipitating the dispute presently before us.

The difference in these courts’ approaches shows that the issue of access to photos in law enforcement’s hands is far from settled under FOIA.