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For mugshots, privacy v. public interest

Reporters are fighting recent restrictions on releasing federal mugshots
March 20, 2013

Open records advocates, including the nonprofit Reporters Committee for Freedom of the Press, are working to get congressional support to pressure Attorney General Eric Holder and the US Justice Department to release mugshots under the Freedom of Information Act.

The department decided in December that the US Marshal Service would no longer release mugshots unless “a law enforcement purpose would be served,” such as when a fugitive has not been captured. Holder supported his logic with two recent appellate court decisions that upheld the Marshal Service’s refusal to release mugshots requested by The Tulsa World in one case, and a freelance writer in the other.

Privacy interests versus public interests continue to clash as this ongoing fight over open records has intensified.

Earlier this month, the Reporters Committee asked Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, as well as ranking member Republican Charles Grassley, to question Holder about the December decision. In January the Reporters Committee, along with 37 other news organizations, wrote to Holder asking him to reconsider the policy. That letter was forwarded to the department’s public affairs office, which acknowledged receiving it but declined to comment on it earlier this week.

“Instead of the federal government taking a more expansive view of public records, they are instead stifling people’s rights to information under FOIA,” said Mark Caramanica, freedom of information director with the Reporters Committee.

Release of mugshots from the US Marshal’s Office, as of now, is at the discretion of individual task forces and district offices, according to a Justice Department memo. In short, law enforcement officials will decide if and when to release booking photographs of criminal suspects and prisoners; even when news organizations request them under FOIA, privacy interests will likely trump public interests.

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The Reporters Committee has been pushing federal lawmakers to get Justice to change the policy.

In 1996, the Detroit Free Press sued the DOJ over the release of criminal booking photographs. A judged found that a criminal defendant who has been publicly named and who has appeared in open court has no right to privacy. Media organizations argue that the Marshal Service’s new policy runs counter to the Detroit Free Press ruling. But a DOJ spokesman told CJR that other offices within the agency, which oversees FOIA compliance for the whole federal government, already had similar policies in place.

Justice officials, speaking on the condition of anonymity, said the department is unlikely to reconsider this new emphasis on privacy over press freedom and pointed to cases where charges are dropped or suspects are exonerated as reasons to keep a mugshot out of the public domain. “News organizations don’t care about privacy; they never have” one official said. “They only care about getting the story.”

Holder’s decision to restrict access is occurring as a national debate, spurred by the Sandy Hook Elementary School shooting in Newtown, CT, continues over whether gun permit applications–and thus the addresses of applicants–should be public. Also in the midst of these FOIA wars, some state lawmakers struggle to prevent the exploitation of public records for profit. Started by people with no journalism background and no journalistic intent, mugshot websites–which post photos and then charge people to remove them–are popping up all over the Internet. One South Carolina jail even stopped publishing booking photos because of it, forcing news organizations there to go to extra lengths to obtain mugshots.

Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

Tracie Powell writes about the media and media policy, specifically on issues regarding piracy, media ownership, government transparency and the business of journalism. A graduate of Georgetown University Law Center, she lives in Washington, DC. She has contributed to Poynter, NPR, and Publica, the first nonprofit investigative journalism center in Brazil.