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Tuesday, January 31, 2017

U.S. Supreme Court Will Decide Whether Mug Shots Are Subject to Federal FOIA

It's pretty rare that the U.S. Supreme Court hears a case about the Freedom of Information Act (FOIA). Yet, the Court accepted an appeal of a 6th Circuit Court of Appeals decision that held that a criminal defendant's "booking" photo is not subject to the federal FOIA statute. In Detroit Free Press v. U.S. Department of Justice, the 6th Circuit Court of Appeals determined that a criminal defendant has a "non-trivial" privacy interest in not having his or her booking photos released to the public, or in this specific case, the press.  Although this case involved interpretation of the federal FOIA (and not the Illinois FOIA), the specific exemption that was cited is very similar to that contained in the Illinois FOIA. 

Section 7(c) of the federal FOIA provides that a record compiled for law enforcement purposes is exempt from release if public release "could reasonably be expected to constitute an unwarranted invasion of personal privacy." The 6th Circuit Court of Appeals applied this exemption to find that booking photos fall squarely within the type of personal information that would result in an invasion of personal privacy if released, because "mug shots" depict individuals in an embarrassing and humiliating light. The Court noted that the Internet has made it even more important to protect these photos because once they are posted, they are permanently accessible. Balancing the privacy interests of the arrestee against the public interests of the press, the Court concluded that mug shots are exempt from FOIA.  

Interestingly, the Court acknowledges that a number of states mandate the release of mug shots. Although the Court does not mention Illinois, there is an Illinois statute mandating release of certain arrest information, including the name of the arrestee, the charges brought against him or her, and a photograph, where available. 50 ILCS 205/3b.  

It will be interesting to see how the U.S. Supreme Court decides this case and we will certainly keep you posted on this one.

Post Authored by Julie Tappendorf


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