The Reporters Committee for Freedom of the Press, joined by 37 media organizations, has written to U.S. Attorney General Eric H. Holder Jr., asking that a recently enacted Marshals Service policy to block the release of federal criminal booking photographs be rescinded.
“The new policy stifles the public’s lawful access to booking photographs under FOIA without legal justification,” according to the Reporters Committee letter.
The Reporters Committee letter was prompted by a Dec. 12 Marshals Service memo stating that it would no longer comply with Freedom of Information Act requests for booking photographs as required under appellate court precedent in the U.S. Court of Appeals in Cincinnati (Sixth Circuit).
Under the 1996 ruling in Detroit Free Press v. Department of Justice, federal booking photographs must be released under FOIA when a named, indicted criminal suspect has appeared in open court and the court proceedings are ongoing. The Sixth Circuit ruling found that under such circumstances an individual has no privacy right in such records. By refusing to follow the appellate court precedent, the Marshals Service has essentially shut off access to federal mug shots under FOIA.
The Marshals Service had previously limited release of booking photographs to FOIA requests originating from within the Sixth Circuit and only allowed their release to non-Sixth Circuit requesters if the images had already been made public under FOIA. The December memo states that the Marshals Service will no longer comply with its FOIA obligations under the Detroit Free Press decision particularly in light of two subsequent U.S. appellate courts decisions finding that subjects may have some level of privacy under FOIA in their booking photograph images.