The 6th Circuit ruled today that federal criminal defendants have a protected privacy interest in their mugshots. The case overrules a 20-year-old precedent that had held that the Freedom of Information Act required federal agencies to release booking photos, and that those depicted in the photos had no privacy interest in them.
In considering the privacy interest at stake, the court looked to the impact the photos could have on defendants, stating, "More than just 'vivid symbol[s] of criminal accusation,' booking photos convey guilt to the viewer." And that, "Potential employers and other acquaintances may easily access booking photos on... websites, hampering the depicted individual’s professional and personal prospects."
Upon finding a non-trivial privacy interest, the court adopted a balancing test, applied on a case-by-case basis, which would weigh the privacy interest against the public interest in disclosure of the photos. The court referenced the core purpose of FOIA as helping the public understand the activities of government agencies, and found that the public's interest depends on the extent to which releasing the photos would serve that core purpose. The court then held that disclosing information about private citizens that doesn't reveal much about the government agency does not foster that purpose.
The court stated that some public interest could potentially outweigh these privacy concerns, but that previous precedent had given no weight to the privacy interest at all and must be overruled. The ruling applies to federal criminal defendants in the 6th Circuit jurisdiction.
The decision was 9-7 from an en banc sitting of the court. For more information, see this article from the Detroit Free Press.