Confidential Close-ups: the Tenth Circuit in World Publishing Co. v. United States Department of Justice Properly Decided Federal Booking Photographs Contain Privacy Interests Under the Freedom of Information Act

• Publication year: 2012
• Citation: Vol. 47

47 Creighton L. Rev. 501. CONFIDENTIAL CLOSE-UPS: THE TENTH CIRCUIT IN WORLD PUBLISHING CO. V. UNITED STATES DEPARTMENT OF JUSTICE PROPERLY DECIDED FEDERAL BOOKING PHOTOGRAPHS CONTAIN PRIVACY INTERESTS UNDER THE FREEDOM OF INFORMATION ACT

CONFIDENTIAL CLOSE-UPS: THE TENTH CIRCUIT IN WORLD PUBLISHING CO. V. UNITED STATES DEPARTMENT OF JUSTICE PROPERLY DECIDED FEDERAL BOOKING PHOTOGRAPHS CONTAIN PRIVACY INTERESTS UNDER THE FREEDOM OF INFORMATION ACT

MaKenna J. Dopheide

I. INTRODUCTION ................................... 501

II. FACTS AND HOLDING ............................ 503

III. BACKGROUND .................................... 507

A. THE DISTRICT OF COLUMBIA LIMITED PUBLIC INTERESTS IN MURDER INVESTIGATIONS UNDERTHE FREEDOM OF INFORMATION ACT .............. 507

B. THE SUPREME COURT REASONED FOIA REQUESTS FROM A THIRD PARTY CARRY SUBSTANTIAL PRIVACY INTERESTS ................. 508

C. THE ELEVENTH CIRCUIT DETERMINED THAT BOOKING PHOTOGRAPHS INVOLVE A SUBSTANTIAL PRIVACY INTEREST ............................... 510

D. THE SIXTH CIRCUIT DETERMINED THAT MUG SHOTS CONTAIN NO PRIVACY INTERESTS ........... 510

E. THE EIGHTH CIRCUIT LIMITED THE SCOPE OF PUBLIC INTEREST UNDER EXEMPTION 7(C)......... 511

F. THE SUPREME COURT EXTENDED PRIVACY RIGHTS TO FAMILY MEMBERS OF A PHOTOGRAPHED PERSON .......................... 512

IV. ANALYSIS ......................................... 513

A. THE TENTH CIRCUIT CORRECTLY INTERPRETED EXEMPTION 7(C) TO REQUIRE A BROAD READINGOF PRIVACY INTERESTS ........................... 514

B. THE TENTH CIRCUIT CORRECTLY LIMITED THE PUBLIC INTEREST TO FIND THAT USMS PROPERLY WITHHELD THE BOOKING PHOTOGRAPHS ................................... 516

V. CONCLUSION ..................................... 519

I. INTRODUCTION

It is no secret that the government in recent years compiled substantial information regarding citizens' lives.(fn1) Under the Freedom of Information Act ("FOIA"),(fn2) a government agency must disclose information in its possession when it receives a valid FOIA request.(fn3) Government agencies can only withhold information is if the information falls within nine express exemptions.(fn4) Of the nine exemptions, Section 552(b)(7)(C) ("Exemption 7(C)") allows government officials to withhold documents that could reasonably constitute an invasion of one's privacy.(fn5) FOIA requires courts to construe its disclosure provisions broadly and its exemptions narrowly.(fn6) However, the term "privacy" in Exemption 7(C) stretches beyond the boundary of a single person.(fn7) Most recently, the United States Court of Appeals for the Tenth Circuit reasoned federal detainees' booking photographs contain such privacy rights.(fn8)

In World Publishing Co. v. United States Department of Justice,(fn9) the United States Marshals Service withheld requested mug shots under Exemption 7(C), reasoning disclosure of booking photographs established an unwarranted invasion of privacy.(fn10) Currently, two circuits split on this topic: the United States Court of Appeals for the Sixth Circuit favors nondisclosure, reasoning mug shots do not carry privacy interests, while the United States Court of Appeals for the Eleventh Circuit reasoned that mug shots do carry privacy interests.(fn11) In its own analysis, the Tenth Circuit reasoned a mug shot carried some privacy rights as it created a clear implication of guilt.(fn12) The court stated that the privacy interests in the booking photo outweighed the public interest in disclosure, which it deemed low since the asserted public interests did not further the purpose providing transparency of agency functions.(fn13) Therefore, the United States Marshal Service rightfully withheld federal booking photographs.(fn14)

This Note will begin with a discussion of the facts and holding of World Publishing Co.(fn15) This Note will then examine six cases considering withheld documents under Exemption 7(C) to determine a general approach to the analysis.(fn16) Next, this Note will explain that the Tenth Circuit correctly decided privacy rights under the exemption, as case law suggests privacy must be interpreted broadly.(fn17) Finally, this Note will defend the Tenth Circuit's narrow interpretation of public interests, and demonstrate that the court correctly followed precedent by balancing the public interests with privacy interests, eventually favoring nondisclosure of federal booking photographs.(fn18)

II. FACTS AND HOLDING

In World Publishing Co. v. United States Department of Justice,(fn19) pursuant to the Freedom of Information Act ("FOIA"),(fn20) World Publishing Company brought suit on behalf of its newspaper subsidiary after the United States Marshals Service ("USMS") denied access to mug shots of six pretrial detainees.(fn21) The District Court for the Northern District of Oklahoma stated that the USMS office validly withheld the mug shots.(fn22) On appeal, the United States Court of Appeals for the Tenth Circuit observed substantial privacy rights and little public interests, and determined the photographs were rightfully withheld under Exemption 7(C) of FOIA.(fn23)

The USMS issued a directive stating mug shots were only to be released to media outlets in order to aid in the capture of fugitives.(fn24) The directive also stated processing of fugitives involved a confidential procedure and prohibited the press from gaining access to the booking proceedings.(fn25) Moreover, no one could release booking photographs, unless for law enforcement purposes.(fn26) The Federal Department of Justice follows a similar policy.(fn27)

Prior to the lawsuit, Tulsa County and the USMS of the Northern District of Oklahoma entered into a contract through which USMS housed certain federal prisoners in the Tulsa County Jail.(fn28) The contract did not discuss mug shots.(fn29) Typically, USMS shot and maintained photographs of its own prisoners.(fn30) USMS does not share photographs with state authorities, but permits any sheriff's office to produce and store its own booking photographs.(fn31) Federal authorities store all federal mug shots in a database titled the Prisoner Processing and Population Management/Prisoner Tracking System.(fn32) Pursuant to FOIA, law enforcement cannot disclose a prisoner's photograph without his or her consent.(fn33) The only exception to this law presents itself in a valid FOIA request.(fn34)

In August of 2008, USMS of the Northern District of Oklahoma detained six individuals.(fn35) Ziva Branstetter ("Branstetter"), City Editor of the Tulsa World, requested the release of the booking photographs taken by USMS based on the fact that the six persons were arrested and arraigned on federal crimes.(fn36) Law enforcement arrested Larry Wayne Barnes on charges relating to the distribution of methamphetamine, Zobair Baig on to two charges relating to food stamp fraud, and Kimberly Chancellor on three counts related to aggravated sexual abuse.(fn37) Federal officials arrested Cecilia Bonilla, Francisca Bonilla, and Estela Bonilla for drug trafficking across the U.S. border.(fn38) USMS held the prisoners in the Tulsa jail according to the contract between the USMS Office and Tulsa County.(fn39) In her FOIA request, Branstetters cited public interest in the disclosure of photographs, noting that they were beneficial in order for readers to better understand the newspaper's story.(fn40)

Twenty days later, the USMS denied Branstetter's request under Section 552 (b)(7)(C) ("Exemption 7(C)") of FOIA.(fn41) Exemption 7(C) allows an agency to deny release of any records that would constitute an invasion of a citizen's privacy.(fn42) The attorney for the Tulsa World sent a letter appealing the denial to the Office of Information and Privacy at the Department of Justice.(fn43) In July of 2009, the Department of Justice replied, affirming USMS's decision not to release the booking photographs.(fn44)

Subsequently, World Publishing Company, the Tulsa World's parent corporation, filed a lawsuit under Section 552(a)(4)(B), a statute granting United States District Courts jurisdiction and stating review standards under FOIA.(fn45) The district court considered the matter, and stated the standard to analyze a denial of a release under Exemption 7(C).(fn46) The court must first decide if the records were created and used for law enforcement purposes.(fn47) Second, the court must balance the public's interest in the release of the records against the person's privacy interest.(fn48) The district court noted the Tenth Circuit previously defined privacy interest and public interest.(fn49)

In its analysis, the court noted a circuit split, stating that the United States Court of Appeals for the Sixth Circuit declined to identify a privacy right in mug shots.(fn50) However, the United States Court of Appeals for the Eleventh Circuit decided booking photographs carry substantial rights to privacy.(fn51) World Publishing Company argued USMS booking photographs contain no privacy interest because the agency eventually posts photos on its website to boast about the fugitive's capture.(fn52) The court rejected this argument, noting it was irrelevant in an Exemption 7(C) analysis to determine whether law enforcement released the photos post-capture.(fn53) In addition, because mug shots concern an individual's appearance at one moment in time and are held for limited use by federal law enforcement agencies, the photos created a valid privacy...