IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. No DETROIT FREE PRESS, INC., Plaintiff-Appellee,

Transcription

1 Case: Document: 25 Filed: 10/30/2014 Page: 1 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No DETROIT FREE PRESS, INC., Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN DISTRICT COURT NO JUDGE PATRICK J. DUGGAN APPELLANT S OPENING BRIEF JOYCE R. BRANDA Acting Assistant Attorney General DOUGLAS N. LETTER LEONARD SCHAITMAN STEVE FRANK (202) Attorneys, Appellate Staff Civil Division, Room 7245 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, D.C

2 Case: Document: 25 Filed: 10/30/2014 Page: 2 STATEMENT REGARDING ORAL ARGUMENT Appellant respectfully requests oral argument to assist the Court in its disposition of this case.

3 Case: Document: 25 Filed: 10/30/2014 Page: 3 TABLE OF CONTENTS Page STATEMENT REGARDING ORAL ARGUMENT STATEMENT OF JURISDICTION... 1 STATEMENT OF THE ISSUE... 2 STATEMENT OF THE CASE... 2 A. Statement of Facts... 2 B. District Court Proceedings... 4 STANDARD OF REVIEW... 6 SUMMARY OF ARGUMENT... 7 ARGUMENT FOIA EXEMPTION 7(C) ALLOWS THE GOVERNMENT TO WITHHOLD THE BOOKING PHOTOGRAPHS OF FEDERAL ARRESTEES INTRODUCTION A. There is a Cognizable Exemption 7(C) Privacy Interest At Stake B. There is No Cognizable Public Interest in Compelling Disclosure Of Mug Shots As a Matter of Course CONCLUSION i

4 Case: Document: 25 Filed: 10/30/2014 Page: 4 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE DESIGNATION OF DOCUMENTS TABLE OF AUTHORITIES Cases: Abraham & Rose P.L.C. v. United States, 138 F.3d 1075 (6th Cir. 1998)... 8, 13, 28 Adkins v. Wolever, 520 F.3d 585 (6th Cir. 2008) Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2009) (en banc) Barnes v. United States, 365 F.2d 509 (D.C. Cir. 1966) Beck v. Department of Justice, 997 F.2d 1489 (D.C. Cir. 1993) CIA v. Sims, 471 U.S. 159 (1985) Department of Defense v. FLRA, 510 U.S. 487 (1994)... 17, 18, 25, 27 Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989)... 8, 9, 16, 17, 19, 21, 23, 25, 27, 28, 30, 31, 33 Department of State v. Ray, 502 U.S. 164 (1991) ii

5 Case: Document: 25 Filed: 10/30/2014 Page: 5 Detroit Free Press v. Department of Justice, 73 F.3d 93 (6th Cir. 1996)... 2, 6, 7, 8, 10, 11, 18, 19, 22, 23, 24, 29, 31 Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979) FLRA v. Department of Navy, 941 F.2d 49 (1st Cir. 1991) John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) Jones v. FBI, 41 F.3d 238 (6th Cir. 1994)... 13, 19, 24, 28 Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004) Karantsalis v. Department of Justice, 635 F.3d 497 (11th Cir. 2011) (per curiam), cert. denied, 132 S. Ct. 1141, 2012 WL (U.S. Jan. 23, 2012)... 3, 7, 9, 12, 20, 21, 22, 33 Kiraly v. FBI, 728 F.2d 273 (6th Cir. 1984)... 13, 20, 24, 28 Multi AG Media LLC v. Department of Agriculture, 515 F.3d 1224 (D.C. Cir. 2008) Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) , 17, 25, 30, 32 Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879 F.2d 873 (D.C. Cir. 1989)... 11, 33 New York Times Co. v. NASA, 920 F.2d 1002 (D.C. Cir. 1990) (en banc) Norwood v. FAA, 993 F.2d 570 (6th Cir. 1993)... 13, 28 iii

6 Case: Document: 25 Filed: 10/30/2014 Page: 6 Rimmer v. Holder, 700 F.3d 246 (6th Cir. 2012)... 13, 17, 33 Rugiero v. Department of Justice, 257 F.3d 534 (6th Cir. 2001), cert. denied, 534 U.S (2002)... 6 Salmi v. Sec'y of Health & Human Servs, 774 F.2d 685 (6th Cir. 1985) Times Picayune Publishing Corp. v. Department of Justice, 37 F. Supp. 2d 472 (E.D. La. 1999)... 12, 21, 23 United States v. Irorere, 69 F. App'x 231 (6th Cir. 2003) United Steel Workers of America v. Saint Gobain Ceramics & Plastics, Inc., 467 F.3d 540 (6th Cir. 2006), vacated by grant of en banc review, 505 F.3d 417 (2007) World Publishing Co. v. Department of Justice, 672 F.3d 825 (10th Cir. 2012)... 3, 7, 12, 22 Statutes: Freedom of Information Act: 5 U.S.C. 552, et seq., U.S.C. 552(a)(4)(B) and (G) U.S.C. 552(b) U.S.C. 552(b)(7)(C)... 2, 4, U.S.C iv

7 Case: Document: 25 Filed: 10/30/2014 Page: 7 Rules: Fed. R. App. P. 4(a)(1)(B)... 2 Regulations: 28 C.F.R. 50.2(b)(7)... 2 Law Materials: Mug Shots and the FOIA, 99 Cornell L. Rev. 633 (March 2014) v

8 Case: Document: 25 Filed: 10/30/2014 Page: 8 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No DETROIT FREE PRESS, INC., v. Plaintiff-Appellee, UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN DISTRICT COURT NO HON. PATRICK J. DUGGAN OPENING BRIEF FOR THE APPELLANT STATEMENT OF JURISDICTION Plaintiff invoked the jurisdiction of the district court under the Freedom of Information Act. See 5 U.S.C. 552(a)(4)(B) and (G). The district court entered final judgment in favor of the plaintiff on April 21, 2014, disposing of all claims as to all parties. The government filed a

9 Case: Document: 25 Filed: 10/30/2014 Page: 9 timely notice of appeal on May 22, See Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C STATEMENT OF THE ISSUE Whether Exemption 7(C) of the Freedom of Information Act (5 U.S.C. 552(b)(7)(C)), which protects law enforcement records whose disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy, allows the government to withhold booking photographs ( mug shots ) of federal arrestees. STATEMENT OF THE CASE A. Statement of Facts. 1. The United States Marshals Service has a long-standing policy of not disclosing booking photographs of federal arrestees. Record ( R ) 24 at 875. See 28 C.F.R. 50.2(b)(7). This uniform national policy was disrupted in 1996 when a split panel of this Court held that no privacy rights are implicated in releasing mug shots in ongoing criminal proceedings in which the names of the indicted suspects have already been made public and in which the arrestees have already made court appearances. See Detroit Free Press v. Department of Justice, 73 F.3d 93, 95 (6th Cir. 1996) ( DFP I )

10 Case: Document: 25 Filed: 10/30/2014 Page: 10 In an effort to accommodate that decision, the Marshals Service adopted a bifurcated approach to the disclosure of booking photographs, allowing for the disclosure of photographs arising from FOIA requests within the jurisdiction of this Court, while denying such requests in the rest of the country. R. 24 at 875. Recently, two courts of appeals considered and rejected the reasoning and holding of DFP I. See World Publishing Co. v. Department of Justice, 672 F.3d 825 (10th Cir. 2012); Karantsalis v. Department of Justice, 635 F.3d 497 (11th Cir. 2011) (per curiam), cert. denied, 132 S. Ct. 1141, 2012 WL (U.S. Jan. 23, 2012). In its certiorari opposition in the Karantsalis case, the government explained to the Supreme Court that it would be appropriate to give this Court an opportunity to reconsider DFP I en banc in light of the circuit split before any Supreme Court review of the matter. See Brief for Resps. in Opp n to Pet. for Cert., Karantsalis, No (Dec. 19, 2011). Accordingly, the Marshals Service issued a memorandum in December, 2012, providing that In light of the weight of legal precedent now supporting the Department of Justice s conclusion that booking photographs generally should not be disclosed under the FOIA, the Department has decided that a uniform policy should be - 3 -

11 Case: Document: 25 Filed: 10/30/2014 Page: 11 applied. Accordingly, effective immediately, the USMS will not disclose booking photographs under the FOIA, regardless of where the FOIA request originated * * *. R. 24 at On January 25, 2013, the Detroit Free Press submitted FOIA request to the Deputy United States Marshal in the Eastern District of Michigan seeking the mug shots of four Highland Park police officers who had made their initial appearance in a case charging them with bribery and drug conspiracy. R. 24 at 879. Pursuant to its newly promulgated policy, the Marshals Service denied the request, explaining that release of the mug shots could reasonably be expected to constitute an unwarranted invasion of personal privacy. Id. (citing 5 U.S.C. 552(b)(7)(C)). B. District Court Proceedings. The Detroit Free Press exhausted its administrative remedies and then filed this action. R. 7 at 98. The parties filed cross-motions for summary judgment. In its memorandum of law in support of summary judgment in district court, the government acknowledged that this Court is bound by Sixth Circuit precedent and recognized that the District Court cannot rule in defendant s favor. R. 18 at

12 Case: Document: 25 Filed: 10/30/2014 Page: 12 Nevertheless, the government stated that a ruling in this case that permits the case to go forward is the most appropriate way to provide the Sixth Circuit with an opportunity to reconsider its holding [in DFP I]. Id. On April 14, 2014, the district court issued its decision, granting plaintiff s motion for summary judgment, but denying plaintiff s claim that the government was in contempt of this Court s judgment in DFP I. R. 24 at 867. The court ordered the government to produce the requested booking photographs, but stayed this order pending appeal. Id. at In its opinion, the district court decline[d] to address the merits of the parties arguments regarding whether Free Press I was correctly decided. Id. at 883. The district court, however, did note that the two recent circuit court decisions holding mug shots to be protected from disclosure under FOIA Exemption 7(C), decided fairly recently and years after [DFP I] may serve as the impetus to reconsideration en banc by the Sixth Circuit. Id. at 886. The court rejected plaintiff s argument that collateral estoppel precluded the government from seeking en banc review of DFP I in this Court. Id. at The court also rejected plaintiff s contempt claim stating it is not contempt to try - 5 -

13 Case: Document: 25 Filed: 10/30/2014 Page: 13 to change the law through appropriate channels. [I]t is an entirely proper litigation strategy to seek the reversal of an arguably incorrect panel decision by petitioning for an en banc hearing. Id. at 890. The government filed a petition for initial en banc review of the district court s judgment. On August 18, 2014, the Court denied the government s petition. Concurring, Judge Sutton stated that [t]he petition for initial hearing en banc has considerable force to it. Yet the reality is that the panel in this case will have another shot at either bolstering our holding in Detroit Free Press, Inc. v. Department of Justice, 73 F.3d 93 (6th Cir. 1996), or explaining why it should be overruled by the full court. Either way, I, for one, would consider seriously a subsequent petition for rehearing en banc. STANDARD OF REVIEW This court reviews the propriety of a district court s grant of summary judgment in a FOIA proceeding de novo. Rugiero v. Department of Justice, 257 F.3d 534, 543 (6 th Cir. 2001), cert. denied, 534 U.S (2002)

14 Case: Document: 25 Filed: 10/30/2014 Page: 14 SUMMARY OF ARGUMENT 1. Nearly twenty years ago, a panel majority of this Court held (over a vigorous dissent) that the booking photographs of federal arrestees were not protected from disclosure under FOIA Exemption 7(C). See Detroit Free Press v. Department of Justice, 73 F.3d 93 (6th Cir. 1996) ( DFP I ). More recently, two other Circuits rejected both the reasoning and holding of the panel s decision. See Karantsalis v. Department of Justice, 635 F.3d 497 (11th Cir. 2011) (per curiam), cert. denied, 132 S. Ct. 1141, 2012 WL (U.S. Jan. 23, 2012); World Publishing Co. v. Department of Justice, 672 F.3d 825, 832 (10th Cir. 2012). Several reasons support reconsideration of DFP I s reasoning. First, DFP I is an outlier among FOIA jurisprudence. Its outmoded, narrow view of privacy runs directly contrary to the precedent of the Supreme Court, this Court, and other Circuits. Second, dramatic technological advances - - the significance of which were scarcely contemplated when DFP I was litigated in the mid-1990s - - have heightened the impact that public disclosure of booking photographs has upon individual privacy. And third, requesters are exploiting the - 7 -

15 Case: Document: 25 Filed: 10/30/2014 Page: 15 FOIA choice of venue provisions by using a straw man within this Court s jurisdiction to get mug shots of individuals located in other jurisdictions where such disclosure is prohibited. This undermines the authority of other Circuits and the Marshals Service s efforts to maintain a uniform national policy on this issue. It is time that DFP I be reconsidered, and, ultimately, reversed by the Court sitting en banc. The DFP I s majority opinion is based on a flawed view of privacy under FOIA, i.e., that no privacy rights are implicated in releasing mug shots. See DFP I, 73 F.3d at 95. The panel majority so held in spite of the fact that the Supreme Court, and this Court, have long recognized that there is in fact a substantial privacy interest under FOIA Exemption 7(C) in information regarding individuals contained in law enforcement records, even when the information has previously been made public in some form. See Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 771 (1989) ( [t]he privacy interest in a rap sheet is substantial ); Abraham & Rose P.L.C. v. United States, 138 F.3d 1075, 1083 (6th Cir. 1998) ( [A] clear privacy interest exists with respect to such information as names, addresses, - 8 -

16 Case: Document: 25 Filed: 10/30/2014 Page: 16 and other identifying information even if such information is already available on publicly recorded filings ). Further, a mug shot is not just a dry, data-driven law enforcement record. Rather, the unique and embarrassing nature of mug shots makes their disclosure at least as invasive as the disclosure of routine law enforcement records, if not more so. See Karantsalis, 635 F.3d at 503 ( a booking photograph is a unique and powerful type of photograph that raises personal privacy interests distinct from normal photographs ). Thus, the privacy interest in a mug shot - - far from being non-existent - - is substantial. There is, at least, a non-trivial privacy interest in these law enforcement records necessitating a court to consider whether a countervailing public interest exists that outweighs the privacy interest, a balancing test that the DFP I panel did not undertake. 2. The Supreme Court has made clear that to be a cognizable public interest under FOIA Exemption 7(C), the disclosure must shed light on an agency s performance of its statutory duties. Reporters Comm., 489 U.S. at 762. In other words, the disclosure must inform the public about what the[] government is up to, and not simply contain - 9 -

17 Case: Document: 25 Filed: 10/30/2014 Page: 17 information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency s own conduct. Id. at Since the panel majority in DFP I determined that there was no privacy interest in mug shots, it stated that it did not need to consider the public interest prong of FOIA Exemption 7(C). See 73 F.3d at The opinion did, however, suggest in dicta that, in limited circumstances, a qualifying public interest might be served by release e.g., where the photographs would prove that an agency was detaining the wrong person, or where a photograph would provide evidence that the arrestee had been mistreated. Id. at 98. Even considering this dicta, these purported public interests are not entitled to any weight in the balancing test in this case. Plaintiff has not alleged here that the government detain[ed] the wrong person, or that any of the arrestees had been mistreated. Moreover, the speculative exposure of government misconduct hypothesized in DFP I fails to meet the criteria for a cognizable public interest elaborated by the Supreme Court s decision in Nat l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004) (decided after DFP I). After Favish,

18 Case: Document: 25 Filed: 10/30/2014 Page: 18 where the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must make a meaningful evidentiary showing before the potential misconduct can serve as a public interest counterweight to the privacy interest. Id. at No such showing has been made here. In sum, the privacy interest at stake here, whether it be characterized as non-trivial, or substantial (but certainly not nonexistent) outweighs the lack of any cognizable public interest in disclosure. As the D.C. Circuit has stated in language that is applicable here: something * * * outweighs nothing every time. See Nat l Ass n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). ARGUMENT FOIA EXEMPTION 7(C) ALLOWS THE GOVERNMENT TO WITHHOLD THE BOOKING PHOTOGRAPHS OF FEDERAL ARRESTEES. INTRODUCTION Nearly twenty years ago, a panel of this Court held that the booking photographs of federal arrestees were not protected from disclosure under FOIA Exemption 7(C). See Detroit Free Press v

19 Case: Document: 25 Filed: 10/30/2014 Page: 19 Department of Justice, 73 F.3d 93 (6th Cir. 1996) ( DFP I ). Since that time, no court outside this Circuit has followed the panel s decision in DFP I. To the contrary, the two Circuits that recently have considered the question presented here rejected both the reasoning and holding of the panel s decision in DFP I. See Karantsalis v. Department of Justice, 635 F.3d 497 (11th Cir. 2011) (per curiam), cert. denied, 132 S. Ct. 1141, 2012 WL (U.S. Jan. 23, 2012) ( [w]e take note of the opinion in Detroit Free Press * * * and respectfully reject its holding ); World Publishing Co. v. Department of Justice, 672 F.3d 825, 832 (10th Cir. 2012) ( [d]espite the holding in Detroit Free Press, when the public interest is balanced against the privacy interest in a booking photo, [the FOIA] request would not further the purpose of the FOIA ). See also The Times Picayune Publishing Corp. v. Department of Justice, 37 F. Supp. 2d 472, 475 (E.D. La. 1999) (similarly rejecting DFP I s reasoning and holding). There are at least three additional reasons to reexamine DFP I s reasoning and conclusions. First, as discussed in detail below, DFP I is an outlier among this Circuit s FOIA privacy exemption rulings, and its reasoning and conclusions cannot be reconciled to other decisions of this

20 Case: Document: 25 Filed: 10/30/2014 Page: 20 Court giving much greater weight to the privacy interest under the FOIA. See, e.g., Rimmer v. Holder, 700 F.3d 246, 257 (6th Cir. 2012); Abraham & Rose P.L.C. v. United States, 138 F.3d 1075, 1083 (6th Cir. 1998); Jones v. FBI, 41 F.3d 238, 245 (6th Cir. 1994); Norwood v. FAA, 993 F.2d 570, 574 (6th Cir. 1993); Kiraly v. FBI, 728 F.2d 273, 277 (6th Cir. 1984). Second, dramatic technological advances in the internet s capacity - - the significance of which were scarcely contemplated when DFP I was litigated in the mid-1990s - - have heightened the impact that disclosure of booking photographs has upon individual privacy. See R. 18 at (describing in detail changes in computing, internet usage, search engines, and social media that impact privacy interests). Indeed, numerous sources have specifically discussed the negative impact that the ready availability of booking photographs on the internet can have on individuals. See R. 18-2, Exs. J-P, at And third, the exception created in this jurisdiction by DFP I undermines the Marshals Service s implementation of a uniform national policy on this issue and puts the Marshals Service in the untenable position of releasing mug shots requested in this Circuit,

21 Case: Document: 25 Filed: 10/30/2014 Page: 21 even if the mug shot was created in another jurisdiction, such as the Tenth and Eleventh Circuits, where it would otherwise be exempt from compelled disclosure. R. 24 at 884 & n. 9. Thus, the Marshals Service faces binding case law both ordering release of the photographs and exempting them from compelled disclosure. See Mug Shots and the FOIA, 99 Cornell L. Rev. 633, 656 (March 2014) (this undesirable and inequitable situation has disturbing consequences ). Moreover, FOIA requesters, including national media entities, have exploited the exception created by DFP I. Requesters use a straw man, a resident within this Court s jurisdiction, to get mug shots of individuals located in other jurisdictions where such disclosure is prohibited. See R. 24 at In effect, DFP I has created a nationwide loophole for obtaining booking photographs. As all parties and the court below have recognized throughout the present litigation, a panel of this Court is bound by principles of stare decisis, to follow the judgment of DFP I. See R. 24 at 882 ( [i]t is beyond doubt that Free Press I, a published panel decision, remains controlling precedent unless an inconsistent decision of the United States Supreme Court requires modification of the decision or [the Sixth Circuit] sitting

22 Case: Document: 25 Filed: 10/30/2014 Page: 22 en banc overrules the prior decision. (quoting Salmi v. Sec y of Health & Human Servs, 774 F.2d 685, 689 (6th Cir. 1985) (citations omitted)). However, the panel, like the district court did, may recognize the reasoning of the two recent circuit court decisions and that they may serve as the impetus to reconsideration en banc by the Sixth Circuit. R. 24 at 886. This is precisely the path taken by other panels of this Court under similar circumstances. In Adkins v. Wolever, 520 F.3d 585 (6th Cir. 2008), a panel decided a case in accord with prior precedent, but expressed the hope that an en banc panel will change this law and said we encourage other members of the Court to revisit the issue en banc. Id. at 585, 588. The full Court then granted en banc rehearing and overruled its earlier precedent to bring our case law in line with the other courts of appeals. See Adkins v. Wolever, 554 F.3d 650, 651 (6 th Cir. 2009) (en banc). See also United Steel Workers of America v. Saint Gobain Ceramics & Plastics, Inc., 467 F.3d 540 (6 th Cir. 2006) (criticizing binding decision and call[ing] for its overruling ), vacated by grant of en banc review, 505 F.3d 417 (2007)

23 Case: Document: 25 Filed: 10/30/2014 Page: 23 A. There is a Cognizable Exemption 7(C) Privacy Interest At Stake. 1. The Freedom of Information Act, 5 U.S.C. 552, et seq., generally provides that any person has a right of access to federal agency records, except to the extent such records are protected from disclosure by a congressional exemption. Congress recognized * * * that public disclosure is not always in the public interest and carved out nine exemptions from disclosure in 5 U.S.C. 552(b). CIA v. Sims, 471 U.S. 159, (1985). These statutory exemptions must be given meaningful reach and application. John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). The exemption pertinent to the instant action is Exemption 7(C), which protects information compiled for law enforcement purposes the disclosure of which could reasonably be expected to constitute an unwarranted invasion of personal privacy. 5 U.S.C. 552b(7)(C). See generally Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). It is undisputed in this litigation that booking photographs met the threshold test of being compiled for law enforcement purposes. R. 24 at 874. Under Exemption 7(C), the court engages in the traditional balancing test to determine whether the

24 Case: Document: 25 Filed: 10/30/2014 Page: 24 privacy interest at stake outweighs the public interest in disclosure. See Reporters Committee, 489 U.S. at 762; Department of Defense v. FLRA, 510 U.S. 487, 495 (1994); Rimmer v. Holder, 700 F.3d 246, (6 th Cir. 2012). As discussed further below, both the privacy interest and the public interest to be considered have been clearly defined by the Supreme Court. The relevant privacy interest has been broadly construed, while the cognizable public interest is a limited term of art, narrowly confined to particular circumstances. 2. The Supreme Court has emphasized that the privacy interests protected by Exemption 7(C) cover a broad range of interests that encompass[es] the individual s control of information concerning his or her person. Reporters Committee, 489 U.S. at & n.16; accord, e.g., DoD v. FLRA, 510 U.S. at 500. The Supreme Court repeatedly has stressed that the concept of personal privacy [under FOIA] is not some limited or cramped notion of that idea. Nat l Archives & Records Admin. v. Favish, 541 U.S. 157, 165 (2004) (quoting Reporters Committee, 489 U.S. at 763). Further, and most significant for this case, it is settled that a non-trivial privacy interest is sufficient to justify the withholding of information under Exemption

25 Case: Document: 25 Filed: 10/30/2014 Page: 25 7(C), unless the public interest in disclosure is sufficient to outweigh it. See Department of Defense v. FLRA, 510 U.S. at 501. See also Multi AG Media LLC v. Department of Agriculture, 515 F.3d 1224, (D.C. Cir. 2008) (threshold for privacy is anything greater than a de minimis privacy interest ). 1 The DFP I panel majority, however, held that no privacy rights are implicated in releasing mug shots in ongoing criminal proceedings in which the names of the indicted suspects have already been made public and in which the arrestees have already made court appearances. See 73 F.3d at 95. Since the panel majority concluded that no privacy interest at all was implicated by the release of mug shots in the circumstances described in that case, it, therefore, determined that there was no need to consider the second part of the Reporters Committee test, regarding the public interest. See id. at (addressing it only in dicta). 1 The threshold privacy interest has been variously, but modestly, described. See DoD v. FLRA, 510 U.S. at 500 ( slight ); Beck v. Department of Justice, 997 F.2d 1489, 1494 (D.C. Cir. 1993) ( something on the privacy side); FLRA v. Department of Navy, 941 F.2d 49, 57 (1 st Cir. 1991) ( non-zero )

26 Case: Document: 25 Filed: 10/30/2014 Page: 26 Judge Norris dissented in DFP I. See 73 F.3d at He faulted the majority for misconceiv[ing] the true nature of a mug shot, which gives distinctive form to information about individuals, and conveys more than the simple fact of arrest. Id. Judge Norris also concluded that any purported qualifying public interest in the dissemination of mug shots is utterly speculative and therefore not entitled to weight in the FOIA privacy exemption balancing. Id. at The DFP I s majority opinion is based on the erroneous view that an individual has no privacy interest in his mug shots. That notion is mistaken and contrary to controlling Supreme Court precedent and this Court s FOIA jurisprudence. The Supreme Court has long recognized that there is in fact a substantial privacy interest under FOIA Exemption 7(C) in information regarding individuals contained in law enforcement records, and this Court has specifically applied this reasoning where disclosure might subject these individuals or their families to embarrassment, harassment, or reprisal. See Reporters Comm., 489 U.S. at 771 ( [t]he privacy interest in a rap sheet is substantial ); Jones v. FBI, 41 F.3d 238, 245 (6th Cir. 1994) (concluding that privacy interest existed if release could subject an individual to

27 Case: Document: 25 Filed: 10/30/2014 Page: 27 embarrassment or harassment as a result of being identified as a subject of FBI inquiry ); Kiraly v. FBI, 728 F.2d 273, 277 (6th Cir. 1984) ( [d]isclosure of such information [regarding those investigated but not indicted or tried] could subject a person to embarrassment, harassment and even physical danger ). Indeed, in Reporters Committee, the Supreme Court stated that the privacy interest protected by Exemption 7(C) is * * * at its apex while the FOIA based public interest in disclosure is at its nadir when a requester seeks a private citizen s criminal history information within the government s control. See 489 U.S. at 780. DFP I s view that not even a slight privacy interest is implicated in booking photographs cannot be reconciled with this settled body of FOIA jurisprudence. 4. A mug shot is not a dry, data-only law enforcement record. Rather, the unique and embarrassing nature of mug shots makes their disclosure at least as invasive as the disclosure of routine law enforcement records, if not more so. In Karantsalis, in holding mug shots to be exempt from compelled disclosure under Exemption 7(C), the Eleventh Circuit recognized that a booking photograph is a unique and powerful type of photograph that raises personal privacy interests

28 Case: Document: 25 Filed: 10/30/2014 Page: 28 distinct from normal photographs. A booking photograph is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt. 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. See 635 F.3d at 503. See also Times Picayune, 37 F. Supp. 2d at 477 (a mug shot is more than just another photograph ); DFP I, 73 F.3d at 99 (Norris, J., dissenting) (a booking photograph is taken under compulsion, and conveys much more than the appearance of the pictured individual ). If a rap sheet invokes substantial privacy interests, as the Supreme Court held in Reporters Committee (see 489 U.S. at 752, 771), then an invasive mug shot, invokes similarly significant privacy concerns. Several distinct aspects of a booking photograph - - its inherent association with guilt, its humiliating presentation, and its stigmatizing effect - - provide information concerning a person beyond what is available through other photographs or public appearances of the person. First, a mug shot is associated with guilt, an association which prevails regardless of the outcome of the case. See United States

29 Case: Document: 25 Filed: 10/30/2014 Page: 29 v. Irorere, 69 F. App x 231, 235 (6th Cir. 2003) (mug shots convey an unmistakable badge of criminality ) (quoting Eberhardt v. Bordenkircher, 605 F.2d 275, 280 (6th Cir. 1979)); Barnes v. United States, 365 F.2d 509, (D.C. Cir. 1966) ( [t]he double-shot picture, with front and profile shots alongside each other, is so familiar, from wanted posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic ). Second, a mug shot reveals an otherwise private event in which the individual is captured at a humiliating moment. DFP I, 73 F.3d at 99 (Norris, J., dissenting). See Karantsalis, 635 F.3d at 503 (mug shot captures a person in the vulnerable and embarrassing moments immediately after being accused and taken into custody); World Publishing, 672 F.3d at 829 (noting the vivid and personal portrayal of a person's likeness in a booking photograph ). The uniqueness of booking photographs is also demonstrated by the fact that newspapers and other media organizations specifically request them, even though other photographs are available. See R. 18-2, Ex. Q at 660 (suggesting that [w]hat is so fascinating about a mugshot is the voyeuristic

30 Case: Document: 25 Filed: 10/30/2014 Page: 30 appeal of witnessing people at their most vulnerable ). And individuals have filed reverse FOIA actions in an effort to prevent release of booking photographs. 2 This, of course, significantly undermines DFP I s central premise, i.e., that the photographs do not contain new information that the indictees would not wish to divulge. DFP I, 73 F.3d at 97. Third, a mug shot has a long-term stigmatizing effect. It preserves, in its unique and visually powerful way, the subject individual s brush with the law for posterity. Times Picayune, 37 F. Supp. 2d at 477. This effect remains long after criminal proceedings have concluded, and even after a sentence has been served. The staying power of this visual stigma implicates the privacy interest in keeping personal facts away from the public eye, because there is a privacy interest inherent in the nondisclosure of certain information even where the information may have been at one time public. Reporters Comm., 489 U.S. at 767, 769. Indeed, since booking photographs are usually requested early in a proceeding, the release of mug shots while 2 See, e.g., Emergency Motion to Bar Release of Post-Arrest Photographic Images of Defendant, Doc. 86, United States v. Loughner, No (D. AZ, Feb. 10, 2011)

31 Case: Document: 25 Filed: 10/30/2014 Page: 31 proceedings are pending, as sanctioned in DFP I, necessarily encompasses individuals who are later acquitted or for whom charges are dropped. In these cases, the booking photograph might remain publicly available for years, continuing to invade the personal privacy of an innocent person. See Jones, 41 F.3d at 245 (concluding that private interest existed if release could subject an individual to embarrassment or harassment as a result of being identified as a subject of FBI inquiry ); Kiraly, 728 F.2d at 277 ( [d]isclosure of such information [regarding those investigated but not indicted or tried] could subject a person to embarrassment, harassment and even physical danger ). The unique nature of mug shots undermines the core rationale of the DFP I majority opinion that booking photographs reveal no new information beyond the fact of an individual s arrest and conviction. See DFP I, 73 F.3d at 97 (reasoning that the defendants involved had already been identified by name by the federal government and their visages had already be revealed during prior judicial appearances. No new information * * * would therefore be publicized by release of the mug shots by the Marshals Service ). See 73 F.3d at 97. Not only is

32 Case: Document: 25 Filed: 10/30/2014 Page: 32 this hypothesis incorrect, as discussed above, but this no new information theory of Exemption 7(C) lacks support in the case law and is contrary to settled FOIA precedent. For example, in Reporters Committee, where the Supreme Court held that rap sheets were protected from disclosure under Exemption 7(C), the Court considered and rejected this very notion. The Court stated that [b]ecause events summarized in a rap sheet have been previously disclosed to the public, respondents contend that Medico s privacy interest in avoiding disclosure of a federal compilation of these events approaches zero. We reject respondents cramped notion of personal privacy. See 489 U.S. at 762. See also DoD v. FLRA, 510 U.S. at 500 ( [a]n individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form ); Favish, 541 U.S. at (the fact that one photograph had been leaked to the media did not detract from the weighty privacy interests of the surviving relatives to be secure from intrusions by a sensation-seeking culture and in limiting further disclosure of the images)

33 Case: Document: 25 Filed: 10/30/2014 Page: 33 The DFP I approach is grounded in an unduly narrow view of the range of information protected by the FOIA privacy exemptions. As is reflected in the expression, a picture is worth a thousand words, pictures often convey information more dramatically and forcefully than a mere verbal recitation of the dry facts that underlie them, which facts may already be publicly available. Thus, a mug shot conveys more information than that a person was arrested. As the discussion above demonstrates, a mug shot also conveys that the person may be embarrassed, humiliated, in shock, unwashed, unshaven, and generally unpresentable. The notion that individuals lack any privacy interest in this additional information is belied by the length to which individuals will go to have these images removed from public display. See, e.g., R. 18-2, Exhibits J-P at (describing individuals efforts to have their mug shots removed from internet sites). Context matters. Even though dry data may be available in some innocuous form, the disclosure of the same information in a dramatic context may heighten privacy concerns. For example, in New York Times Co. v. NASA, 920 F.2d 1002 (D.C. Cir. 1990) (en banc), the full D.C. Circuit ruled that, even though a verbatim transcript of the sound

34 Case: Document: 25 Filed: 10/30/2014 Page: 34 recording of the last moments of the space shuttle Challenger had been released, the further release of the recording itself provided more information and implicated serious privacy interests. See id. ( textual report accompanied by a picture, for example, provides more information than the text of the report alone. In a particular case, the picture might be exempt from disclosure while the text is not ). When one considers the distinctive form and connotation of a mug shot, it is clear that its release similarly conveys more information about the subject than simply identity and the fact of arrest. 5. But [e]ven if booking photographs merely conveyed the fact of arrest, the individual s privacy interest - - i.e., his interest in control of information concerning his or her person, Reporters Committee, 489 U.S. at 763 does not dissolve simply because that information may [already] be available to the public in some form. DoD v. FLRA, 510 U.S. at 500. The idea that appearing in open court or being identified in a court filing waives all privacy interests (the core holding of DFP I), is directly contrary to this Circuit s decisions. This Court has concluded that individuals who have testified in open court retain a cognizable

35 Case: Document: 25 Filed: 10/30/2014 Page: 35 privacy interest in their names. See Jones, 41 F.3d at 247 (rejecting plaintiff s argument that certain agents waived 7(C) protection by testifying at plaintiff s habeas proceeding ); Kiraly, 728 F.2d at 280 (holding that the privacy interests of the testifying witnesses are not waived ). Similarly, this Court has emphasized that publishing names and other identifying information on publicly recorded filings does not eliminate privacy interests. See Abraham & Rose P.L.C. v. United States, 138 F.3d 1075, 1083 (6th Cir. 1998) ( a clear privacy interest exists with respect to such information as names, addresses, and other identifying information even if such information is already available on publicly recorded filings ); Norwood v. FAA, 993 F.2d 570, 574 (6th Cir. 1993) (upholding the privacy interest of air traffic controllers who had settled their claims and whose names had become public in at least three different ways, including a court filing). Nor does the fact that mug shots involve criminal defendants eliminate the privacy interest, even if they ultimately are convicted. See Reporters Comm., 489 U.S. at 771; Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108, (D.C. Cir. 2004) (rejecting the notion that convicted felons are not entitled to the same privacy rights as

36 Case: Document: 25 Filed: 10/30/2014 Page: 36 other citizens ). If even convicted felons retain a privacy interest in their records, then federal detainees, such are at issue here - - who, at the time of the FOIA request, have yet to be convicted of any crime - - possess at least an equal (if not greater) privacy interest in their booking photographs. At a minimum, it cannot be said that no privacy interests are implicated. 6. Finally, dramatic technological changes over the last twenty years, since DFP I issued, have heightened the privacy interest at stake. One can no longer assume that any publication or use of the mug shots by requesters would be short-lived and associated only with the time of the prosecution. See DFP I, 73 F.3d at 97. What was once obscure is now permanently public and can do lasting damage. Today, mug shots that have been released by law enforcement are easily retrieved through Internet search engines. See R. 18-2, Exs. J-Q at (articles describing widespread internet publication of mug shots and the consequences for individuals). They communicate personal and potentially damaging information about a person that lasts long beyond the time of the arrest, even long after that person has been convicted and paid his or her price to society, has had charges

37 Case: Document: 25 Filed: 10/30/2014 Page: 37 dropped, or has been acquitted. See, e.g., R. 18-2, Ex. J at 632 (describing situation of a physician whose booking photographs from 1996 and 2011 remain online even though charges were quickly dropped after both arrests). Today, unlike twenty years ago when DFP I issued, it is implausible to contend that a photo taken at the time of booking is irrelevant to an individual s control of information concerning his or her person. See Reporters Committee, 489 U.S. at & n.16. See also Favish, 541 U.S. at 174 ( once there is disclosure, the information belongs to the general public. There is no mechanism under FOIA for a protective order allowing only the requester to see whether the information bears out his theory, or for proscribing its general dissemination ). At a bare minimum, the DFP I panel s majority opinion erred in holding that there was no privacy interest at all in a mug shot. That view can no longer be sustained. Settled precedent of the Supreme Court and this Court makes manifest that, at a minimum, there is a non-trivial privacy interest in these law enforcement records, necessitating a court to consider whether a countervailing public

38 Case: Document: 25 Filed: 10/30/2014 Page: 38 interest exists that outweighs the privacy interest, a balancing test that the DFP I panel did not undertake. B. There is No Cognizable Public Interest in Compelling Disclosure Of Mug Shots As a Matter of Course. 1. The Supreme Court has made clear that to be a cognizable public interest under FOIA Exemption 7(C), the disclosure must shed light on an agency s performance of its statutory duties. Reporters Comm., 489 U.S. at 762. In other words, the disclosure must inform the public about what the[] government is up to, not simply contain information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency s own conduct. Id. at As discussed above, the panel majority in DFP1 determined that there was no need to consider the public interest prong of FOIA Exemption 7(C). See 73 F.3d at The opinion did, however, suggest in dicta that, in limited circumstances, a qualifying public interest might be served by release e.g., where the photographs would prove that an agency was detaining the wrong person, or where a photograph would provide evidence that the arrestee had been mistreated. Id. at

39 Case: Document: 25 Filed: 10/30/2014 Page: This purported public interest in disclosing mug shots, however, does not show that disclosure is warranted here. There was no allegation in DFP I, nor in the present case, that the government had detain[ed] the wrong person, or that any of the arrestees had been mistreated. Accordingly, the Supreme Court s admonition that [m]ere speculation about hypothetical public benefits cannot outweigh a demonstrably significant invasion of privacy is particularly apt here. See Department of State v. Ray, 502 U.S. 164, 179 (1991). Moreover, the speculative exposure of government misconduct hypothesized in DFP I does not meet the criteria for a cognizable public interest elaborated by the Supreme Court s 2004 Favish decision (decided after DFP I). See Favish, 541 U.S. at 174 (where the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure ). After Favish, a requester who asserts government misconduct as the relevant public interest must make a meaningful evidentiary showing before the potential misconduct can serve as a public interest counterweight to the privacy interest. Id. at

40 Case: Document: 25 Filed: 10/30/2014 Page: 40 See Rimmer, 700 F.3d at 258 (applying Favish standard to require more than bare allegations of federal malfeasance * * * before the public interest becomes significant enough to overcome the privacy concerns embodied in Exemption 7(C) ). Plaintiff in this case has not even alleged government misconduct here, much less made the requisite Favish evidentiary showing. In the instant action, as in Karantsalis, the public obtains no discernable [public] interest from viewing the booking photographs, except perhaps the negligible value of satisfying voyeuristic curiosities. See Karantsalis, 635 F.3d at 504. Therefore, the public interest side of the balancing test in this case is entitled to no weight under settled FOIA precedent. See Reporters Committee, 489 U.S. at 762. In sum, the privacy interest at stake here, whether it be characterized as non-trivial, or substantial (but certainly not nonexistent), has been heightened by technological development, and outweighs the lack of any FOIA-cognizable public interest in disclosure. As the D.C. Circuit has stated in language that is equally applicable here, something * * * outweighs nothing every time. See Nat l Ass n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989)

41 Case: Document: 25 Filed: 10/30/2014 Page: 41 CONCLUSION For the foregoing reasons, we urge the panel to indicate that the matter is ripe for en banc review. Respectfully submitted, JOYCE R. BRANDA Acting Assistant Attorney General DOUGLAS N. LETTER LEONARD SCHAITMAN STEVE FRANK (202) Attorneys, Appellate Staff Civil Division, Room 7245 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, D.C

42 Case: Document: 25 Filed: 10/30/2014 Page: 42 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the requirements of Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point Century Schoolbook, a proportionally spaced font. I further certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,371 words, excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii), according to the count of Microsoft Word. /s/ Steve Frank STEVE FRANK

43 Case: Document: 25 Filed: 10/30/2014 Page: 43 CERTIFICATE OF SERVICE I hereby certify that on October 30, 2014, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. /s/ Steve Frank Steve Frank

44 Case: Document: 25 Filed: 10/30/2014 Page: 44 DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS UNDER SIXTH CIRCUIT RULE 30(G)(1) The United States hereby designates the following portions of the district court record for this Court s consideration: Document Description Date Docket Entry Page ID Amended Complaint 8/10/ Cross-Motion for 11/26/ Summary Judgment Cross-Motion for 11/26/ A Summary Judgment, Ex. A (Bordley Decl.) Cross-Motion for 11/26/ B-Q Summary Judgment Ex. B-Q Opinion & Order 4/21/ Judgment 4/21/ Notice of Appeal 5/22/