Court Monitor

Obama Administration Ordered to Disclose Mug Shots

A "mug shot" is a picture, also called a "booking photo," which is taken by law enforcement of a suspect charged with a crime. Often mug shots show the face and upper shoulders of the suspect standing next to a height measurement on the wall, so that it records how tall he is.

Local law enforcement agencies, whether city, county or state, routinely make their mug shots available to the press and the entire public. After all, these photos are taken using taxpayer dollars, and the public has as much right to see who is being charged with crimes as it has to attend the court trials themselves.

But the Obama Administration, the most secretive in American history, insists on withholding some of its mug shots from the public. In 2012, the Detroit Free Press requested copies of the mug shots of police officers in the Detroit area who had been indicted on federal charges, but the Obama Administration refused.

The Freedom of Information Act (FOIA) compels federal agencies to comply with requests for mug shots of defendants who have appeared in court for ongoing legal proceedings. But the U.S. Marshals Service simply refused to comply with the law, and withheld the requested photos.

The Detroit Free Press sued the Obama Administration, and the Obama Administration put the newspaper through years of litigation to obtain taxpayer-funded photos that should have been simply sent to the paper upon its request.

FOIA was enacted in 1966 in order to "implement a general philosophy of full agency disclosure" of records in the possession of government. U.S. Dep't of Justice v. Reporters Committee for the Freedom of Press, 489 U.S. 749 (1989). FOIA compels federal agencies to make their opinions and policy statements available to the public and also produce other records "promptly" to anyone who requests them. An exemption for law enforcement applies only if disclosure to the public "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(a)(3)(A) and 552(b)(7)(C).

A decision by the Sixth Circuit in 1996, in a nearly identical lawsuit by the Detroit Free Press against the U.S. Department of Justice to obtain different mug shots, was decided in favor of the newspaper and required the federal government to comply with the requests. Detroit Free Press, Inc. v. U.S. Dep't of Justice, 73 F.3d 93 (1996). Yet, the Obama Administration defied that ruling and made the newspaper incur many thousands of dollars in additional expense to obtain a court order requiring the Administration to obey the law and release the photos.

In August the newspaper won again on appeal, and the Court ordered the Obama Administration to obey the law and provide the mug shots. Detroit Free Press, Inc. v. U.S. Dept. of Justice, 2015 U.S. App. LEXIS 14075 (6th Cir. Aug. 12, 2015). But the Court then went out of its way to urge the full en banc Sixth Circuit to convene to try to find a way to allow the Obama Administration to continue to withhold this basic taxpayer-funded information from the public.